European Union (Notification of Withdrawal) Bill

Lord Lester of Herne Hill Excerpts

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

[Lord Pannick]

If by referring to a hidden agenda, the noble Lord is suggesting that I have some motivation, I assure him that my only motivation is to ensure that Parliament has a guaranteed opportunity at the end of the negotiating process to decide whether the terms of our withdrawal are acceptable or not. That is a basic question of parliamentary sovereignty.

The amendment will not delay notification of withdrawal from the EU. It does not commit the Government to adopt any specific approach in the negotiations. It does not impede them in the negotiations any more than the undertaking already given by the Prime Minister. Crucially, it will guarantee that the Government must come back to both Houses to seek approval for the result of the negotiations.

[Lord Lester of Herne Hill (LD)]

I am grateful to the noble Lord for giving way and wish him a happy birthday. Would I be right in thinking that the difference between what he is advocating and what some other noble Lords are advocating is the difference between parliamentary authority and the royal prerogative? Is he not doing exactly what the Supreme Court of the United Kingdom said in Gina Miller’s case, which he won?

[Lord Pannick]

I am very grateful to the noble Lord. I was worried for a moment that he was going to sing at me, but I entirely agree with his point. We are considering the Bill because, and only because, as he reminds the House, the Supreme Court ruled as a matter of law that parliamentary sovereignty is required at this stage of notification of withdrawal. I say, not as a matter of law—because I am not arguing a legal case—but as a matter of constitutional principle, that parliamentary sovereignty is as important at the end of the negotiating process. I beg to move.

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[Lord Lawson of Blaby]

My Lords, as I was saying, as my noble friend Lord Hailsham, whose father I greatly respected as a colleague of mine in government, has reminded us, the reason we are debating this proposed new clause today is that the noble Lord, Lord Pannick, who moved this amendment, convinced first the High Court and subsequently a majority of the Supreme Court that a Bill is needed and that the Government’s intention to rely on the prerogative will not do. His argument was clear, and I think it will be helpful if I remind the House of it by quoting his words before the High Court:

“my case is very simple. My case is that notification is the pulling of the trigger and once you have pulled the trigger, the consequence follows. The bullet hits the target. It hits the target on the date specified in Article 50(3). The triggering leads to the consequence, inevitably leads to the consequence, as a matter of law, that the treaties cease to apply”.

In short, the very act of invoking Article 50 inexorably leads to Brexit two years later. This was the principal basis on which the courts decided that the Government were wrong to rely on the prerogative, yet the proposed new clause appears to say exactly the opposite. It says that there is no inevitability at all. Triggering Article 50 does not “inevitably”—in the own word of the noble Lord, Lord Pannick—lead to Brexit, for the explicit purpose of the proposed new clause is to ensure that even when Article 50 has been invoked, if Parliament disapproves of the outcome of the negotiations it can stop Brexit happening. Indeed, as a number of speakers have pointed out, on the strict interpretation of the proposed new clause, your Lordships’ House alone can prevent Brexit since the approval of both Houses is required. I do not want to go down that avenue because I have not time.

I have the greatest respect for the noble Lord, Lord Pannick, as an exceedingly clever lawyer who deploys his cleverness with considerable charm. However, is it possible for even him to have his cake and eat it? Might this not be too clever by half? The real mischief—

[Lord Lester of Herne Hill (LD)]

My Lords—

[Lord Lawson of Blaby]

I should like to develop my argument. The real mischief in this proposed new clause lies in subsection (4). As the noble Lord, Lord Pannick, effectively conceded, without subsection 4 there is a possible reconciliation with his original thesis, since without subsection (4), Parliament would be faced simply with the decision of whether to approve the agreement that the Government had putatively reached with the European Union. As the noble and learned Lord, Lord Hope, and one or two others, have already pointed out, the Government have pledged to put this before Parliament when the time comes.

The Government might, for example, have agreed to pay the Barnier ransom demand which our own European Union Committee has recently confirmed that we are under no legal obligation to pay. In that case, Parliament might have found that unacceptable. However, if, for whatever reason, Parliament refused to approve the agreement that the Government had reached with the EU, that would not prevent Brexit. It would mean simply that we would leave the European Union without an agreement—and, as I explained at Second Reading, that is nothing to be scared of. Far from jumping off a non-existent cliff into the unknown, trading under WTO rules is the very satisfactory basis of most of the trade that we do throughout the world today. I give way.

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[Lord Lester of Herne Hill]

I am grateful. Does the noble Lord accept that at this stage the key question before the House is: who is to be master? Is it Ministers or Parliament?

[Lord Lawson of Blaby]

If the noble Lord allows me to develop my argument he will see exactly what the problem with what he is saying is, because no agreement is by far the most likely outcome. As the Prime Minister made clear in her excellent Lancaster House speech and as the subsequent White Paper reiterated, no agreement would be better than a bad agreement. Sadly—and it is sad—a bad agreement is all that is likely to be on offer. However, the mischief of subsection (4) of this proposed new clause is that it would not merely give Parliament the power to reject a bad deal but enable it to prevent Brexit altogether by refusing to allow the UK to leave the European Union without an agreement. This not only is in diametric opposition to the Pannick thesis on which the Bill rests but, more importantly, would be an unconscionable rejection of the referendum result that would drive a far greater wedge between the political class and the British people than the dangerous gulf that already exists.

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[Lord Mackay of Clashfern (Con)]

My Lords, I will first take up the point that the noble Baroness has just mentioned about the judgment of the Supreme Court. Naturally, I have studied it with a certain amount of care. Both sides, the Government and the applicant, agreed with the basis that they should treat the Article 50 notification as irrevocable. Lord Justice Reed pointed out clearly that that had not been the subject of a decision by the court but that, from the point of view of the judgment, it did not matter so long as it was possible that it was irrevocable. If that was the case, the danger to Acts of Parliament existed even if it turned out that it might be revocable. If it was possible that it was irrevocable, once it was triggered, these Acts of Parliament came into danger. It was as simple as that. I think we must assume—I am prepared to anyway—that the government lawyers took the view that Article 50 notification was irrevocable because they took the case on that basis. Of course, some doubt about that might have helped them if they thought there was a real argument that it was revocable—the bullet and all the rest of it that the noble Lord, Lord Pannick, talked about in the decision would maybe not have occurred. The Government’s lawyers definitely took the view that it was irrevocable.

The point tonight is different. The Prime Minister and the Minister in the Commons both gave an undertaking that a Motion would be put before both Houses of Parliament for approval of the final deal and for the way in which we might leave the European Union. They both gave that undertaking but they did not say that the Prime Minister would necessarily be bound by the decision of both Houses.

The difficulty in this amendment is that it formally requires the approval of both Houses. There is no question—it is as clear as can be. I do not claim to be a prophet, so exactly what will happen after two years I do not know, but I feel absolutely certain that the negotiations will be difficult and that it will be very difficult at this stage to tell what sort of outcome we may get. If we can get such an agreement in relation to economics as the Prime Minister indicated in her speech, that might be very good. On the other hand, some people who know more about it than I do think that may not be likely.

As I said, I do not know what will happen. The Prime Minister and the Minister have agreed that both Houses of Parliament should have a Motion put before them for approval, but neither said—I believe that may be why they phrased it as they did—that the approval of both Houses would be necessary.

I want to point out the danger of not getting this right. I see no reason why it should not be put right, if people agree that it is not quite right. The House of Commons should be the prime source of authority on this matter. Your Lordships will remember, if you read the newspapers—I am sure most of us do, although perhaps selectively—the suggestion that this was all a scheme for this House to try to defeat the Brexit vote. I do not want it to be said unnecessarily, in any circumstances, that we give colour to that, because I feel certain that nobody in this House wants to engineer a blockage of the Brexit vote as the Prime Minister goes ahead. I feel sure of that, and I think I am right. Somebody this morning mentioned the word “tribal”. I do not feel myself part of any particular tribe, but I want the matter to be right. If the amendment is sent back to the Commons, I would like it to be correct, so that nobody could suggest that we were trying to create a scheme that might block Brexit, because we refuse our approval and the House of Commons approves it.

[Lord Lester of Herne Hill]

As I understand the noble and learned Lord’s speech, he is saying that, provided the primacy of the House of Commons is made clear, he would support the amendment. Is that right?

[Lord Mackay of Clashfern]

I am saying that I think it would then simply incorporate the Prime Minister’s and the Minister’s undertaking.