European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

[Baroness Kramer]

The noble Viscount gives a superb example. We can think of parking charges and a whole wide variety. That is why it is really important that there is clarity over when a statutory instrument is the appropriate mechanism and when, frankly, it is not. The Bill as it stands does not give that clarity.

I also put my name to these amendments for another reason. Most in this Committee will remember the time of the tax credit debacle, a major policy change that most of us regarded as a change that should have been introduced as part of a welfare Act. The Government sought to accomplish that through a statutory instrument attached to a Finance Bill. Because of the nature of charges and money-type instruments, it is very possible to use them to affect very broad policy issues and not just the narrow issue of revenue raising. That is why Amendment 127, for example, is an important amendment, as are others in this category. We are all concerned about the inappropriate use of Henry VIII powers, since this Government have actually tried to use these to achieve those much broader policy ends in the past. We have to be sure that we are not leaving a mechanism by which that could be repeated, because that really would be a coach and horses through many of the concerns and issues that have been raised.

[Lord Lisvane (CB)]

My Lords, I support the amendments in the name of the noble Baroness, Lady Hayter of Kentish Town, and I shall speak to Amendment 126, which is in my name and those of my noble and learned friend Lord Judge, my noble friend Lord Pannick and the noble Lord, Lord Tyler. Amendment 126 would bring Clause 8 into line with Clauses 7 and 9.

Taxation matters can be dealt with by statutory instrument. For example, they can restrict relief from Customs and Excise duties or VAT under the Customs and Excise Duties (General Reliefs) Act 1979. But taxation, as it is normally and properly understood, is undoubtedly a matter for primary legislation. What is troubling here is the potential width of these powers and the lack of indication of how the Government intend to use them.

The Delegated Powers Committee’s 12th report says:

“At committee stage in the House of Commons, the Parliamentary Under-Secretary of State for Exiting the European Union (Mr Robin Walker) indicated that the power to tax by statutory instrument in clause 8 was needed because the power was not available under clause 7”—


that is true enough. It continued by saying that,

“furthermore, taxation might be needed to ‘comply with international arrangements’”.

The committee then pointed out, and I entirely endorse what it said:

“The question which remains unanswered is why taxation by Ministers in statutory instruments is an acceptable alternative to taxation”,


approved by Parliament, with the normal rigour of the process, in primary legislation.

The Minister will need to give your Lordships some very hard examples of why a statutory instrument would be used and not primary legislation. If that is not known at this stage, the withdrawal and implementation Bill we are promised might well be the vehicle for making those changes in primary legislation, if the precise requirements are known at that stage. But this potentially wide power to tax by statutory instrument is, as I say, more than troubling. I am not suggesting that indications of how a power is expected to be used will in themselves suffice, although they should give your Lordships a clue to why the power is required, which is perhaps a more important question to address. What matters, of course, is what ends up in the Act. The use of the power then will not be trammelled by reassuring indications of how, at this stage, it is expected to be used.

Perhaps I may finish by enlarging on my noble friend Lord Turnbull’s masterly catalogue of fees and charges and their various characteristics, to add another category. In the financial procedure of the House of Commons, a fee that is levied and then applied for the good of the industry as a whole is not treated as a tax, so it does not require ways and means cover. As I say, that is merely a footnote to my noble friend’s excellent speech.

[Lord Tyler (LD)]

My Lords, I am a co-signatory to Amendment 126, as the noble Lord, Lord Lisvane, said. I want to underline a couple of the points he has made. This amendment derives, as he said, from the work of the Delegated Powers and Regulatory Reform Committee of your Lordships’ House, which, I remind the House, is cross-party and non-party. It is entirely devoted to advising the House on important issues relating to the way we handle secondary legislation.

The noble Lord, Lord Lisvane, has been characteristically modest in not quoting the committee’s specific comment, which is very powerful. It said at paragraph 20(c):

“The Government should demonstrate a convincing case (if one exists) before the supremacy of the House of Commons in financial matters gives way to taxation by statutory instrument”.


This may be only a minor incident, but it is part of a much bigger pattern. I worry—I am getting old, I think—that Ministers and civil servants do not seem to have spent quite so much time with their history books as I used to when I took a degree in that subject. The power of Parliament to hold the Executive to account in matters of taxation goes back beyond even the 300 years to which the noble Lord, Lord Turnbull, referred. It could be said to go back to Magna Carta or Simon de Montfort’s Parliament, or indeed to the decision of our colonial cousins to declare independence: “No taxation without representation”.

This is very sensitive territory. We are surely entitled to demand a full explanation of why the regulations under Clause 8, unlike those under Clauses 7 and 9, may impose new taxation or increase taxation, allowing the supremacy of the House of Commons in financial matters to give way to taxation by secondary legislation.

The noble Lord, Lord Lisvane, referred to some discussions that took place in the other place on 13 December, when the Minister, Robin Walker, sought to explain why the provisions of Clause 7 could not apply and why Clause 8 was necessary. I shall quote him in detail because I think it is important:

“In addition, there are restrictions on the use of clause 7 relating to, for example, taxation that might, in some circumstances, prevent important changes to comply with international arrangements from being made. We need this power because we need to be prepared for all eventualities”.—[Official Report, Commons, 13/12/17; col. 557.]


There are three triggers there: “taxation”, “important changes”—this is not just trivial stuff—and “all eventualities”. Throughout discussion on the Bill, we have constantly been told that Ministers require a great deal of room for manoeuvre and flexibility; they need to be able to move fast. In this case, they have made the case themselves for proper discussion and consideration. Matters relating to taxation in these circumstances require the most composite and careful care. We should be seeking comprehensive scrutiny, not the usual approval of SIs.

If any noble Lords on the Conservative Benches think these are trivial issues, I invite them to consider how a future Government of a distinctly different colour might choose to use these unprecedented powers in relation to taxation. The very important role of Parliament is here before your Lordships’ House today. I know we will be told of the need for speed, flexibility, expediency et cetera, and that all the usual excuses for slipshod legislation will be trotted out, but this is an issue of considerable principle and of considerable responsibility for your Lordships’ House and the other place, and we must do what we can to assist it to fulfil that responsibility. Whether or not Brexit actually happens, these amendments to this clause are of huge long-term importance. We could be establishing a precedent for taxation being treated as a secondary issue, rather than as a matter that should always come in the form of primary legislation.

I was disappointed not to have been able to be here last Wednesday for the Committee, but I noted with admiration the range of expertise from all over the House and the eloquence with which it was deployed. This is not an area we can simply wave through as though it were just some small technical question. This goes to the very heart of the balance between government and Parliament. I think it was the noble Lord, Lord Cormack, who last week quoted the late Lord Hailsham warning of a slide towards “elective dictatorship”. We are back there again this afternoon, and I say amen to that.

--- Later in debate ---

[Lord Deben]

There is a large number of fees that are paid to, for example, the Environment Agency, to carry out certain services. We have no idea whether those fees are equalled by the amount of work that is done. The Environment Agency says: “We want this amount of money because we need it”. There is no proof. If one were to prove that the agency spent less money than the fee, does it then become a charge or a tax? There is a real issue here. My noble and learned friend Lord Mackay points to the fact that one may define it like this but how does one prove it, and how does the House deal with it? Is it not better to not have this distinction at all?

[Lord Lisvane]

Before the Minister responds to that point, could he also answer my question? He has sought to make a distinction between a fee and a charge. Could he explain why, at page 761 of the latest edition of Erskine May, there is no distinction made between fees, charges, impositions, contributions or anything else of that sort? The test which is set out there, and is reflected in the current practice note from the Office of the Parliamentary Counsel—available on its website—is whether or not those payments are,

“akin to taxation in their effect and characteristics”.

I suggest that an additional test needs to be applied to the template which the Minister has offered.

[Viscount Hailsham]

I am sorry for my noble friend, but he did say that both the fees and the charges were subject to the affirmative procedure. I know that the fees are, but I am not sure where in the Bill I find the provision that charges are subject to the affirmative procedure. Will he tell the Committee?

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I am delighted to follow the noble Baroness, Lady Young, whose name stands at the head of Amendment 227A. I will add just two points in addition to endorsing the unhappiness of the noble Viscount, Lord Hailsham, partly conveyed through his lead amendment and other amendments in this group.

So far, the practicalities of Brexit have been a conversation primarily between government and Parliament. If the use of the sweeping ministerial powers in the Bill will carry credibility with our fellow citizens, that conversation needs to be joined by the huge army of those who will be directly affected. However—and I think we could all draft the reply of the Minister, just after the headnote that says, “resist”—the possibility of consultation throws into sharp relief the extraordinary pressures of time under which the EU-related parts of the statute book will have to be repatriated and adjusted. Even if there is a two-year period of transition—or implementation; I do not think the two are the same, by any means—a three-month consultation period would be luxurious indeed. Yet effective consultation—that is, beyond the usual suspects—cannot be done quickly.

My second point relates to the relationship between the Lords and the Commons. I cannot help but remark that if Ministers agreed to be bound by the test of necessity rather than appropriateness, their problems in this area might be very much fewer. It seems pretty clear that there will be heavyweight regulations—probably quite a lot of them—for both Houses to consider. As the Bill is drafted at present, there may be too many that are subject to the negative procedure and not enough that are subject to the affirmative procedure, but in any event we will have to focus minds on what will happen if the two Houses disagree.

So far as affirmatives are concerned, I have put my name to an amendment in the name of the noble Lord, Lord Sharkey—Amendment 239A—which explores a possible dispute resolution procedure. However, if major regulations come forward on which there manifestly has been insufficient consultation, the possibility of disagreement between Lords and Commons would increase. Given the inevitable degree of political contention and unyielding pressures on time, this might become a matter of serious concern. I suggest that systematic consultation offers a possible way of reducing that hazard.

[Baroness Neville-Rolfe (Con)]

I rise to speak to Amendments 249, 250 and 251. Several noble Lords will know of my lifelong concern for good-quality regulation. The Bill will, by its very nature, lead to the creation of a vast number of SIs of exceptional importance, so proper scrutiny is more important than ever, as the noble Lord, Lord Lisvane, just said.

I am concerned about content, scheduling, consultation and time for debate. On content, I want the Government to follow the good practice of the Nuclear Safeguards Bill, where making the draft implementing regulations available has helped to reassure people and made its passage easier. I have suggested five areas where specimen regulations might be made available: agriculture, customs, financial services, immigration and intellectual property. My amendment says that specimen regulations should be made available within a month of Royal Assent—which is what the Public Bill Office felt able to approve—but my suggestion to the Minister is to make specimen SIs available for our consideration before Report.

I understand and fully support the objective of putting extant EU laws onto the UK statute book from day one; anything else would lead to the utmost confusion. However, there is still much to ponder and much scope for mistakes. All these problems will be lessened by allowing all interests to see and comment on what is envisaged, as has been said. We need to know which enforcement body will take over what are now EU duties, as we discussed at length in relation to the new environment body. For example, in financial services it could be the FCA, the PRA or even the Treasury. In agriculture, the situation is equally complicated, not least because of the extra dimension of devolution. We need to know the criminal and civil penalty regime for each area and, as debated earlier, the approach to fees and charges—especially for SMEs, which I know will be a concern in relation to intellectual property and immigration. We need to understand the future arrangements for standard setting and the sharing of intelligence. Exemplar SIs could—and probably would—cast reassuring light on all of this.

On scheduling and consultation, I start by thanking the Minister, as he kindly arranged for me to meet one of his officials and those responsible in the Treasury for the SI work on financial services. This was very reassuring. The numbers on financial services are fewer than I feared—80 to 100 SIs—and I understand that they will take account of existing UK regulations. Hopefully, this will mean that practitioners will be able to find their way round the law more easily than they can do now. I believe there is some sympathy for my suggestion that it would be wise to publish SIs for consultation, which is the subject of my amendment and of others. The process of SI sifting and review in Parliament will, unfortunately, only allow an SI to be debated and agreed or rejected by either House. There is no scope for amendment so SIs need to be right first time. Will the Minister provide some commitment to publication of and/or consultation on draft SIs, at least in the five areas I have identified?

In practice, if—as I hope—a transition period is agreed, and thus for relevant purposes we effectively remain in the EU during transition, there is a fair amount of time to do this properly. But if the negotiations go badly and we have to rush for the line, it may be as well to have done as much consultation as possible early. Finally, and Amendment 251 relates to this, we need time to debate the more important SIs in a planned way. There is a substantial issue here which has not yet been fully acknowledged by the Government. One solution could be to group related SIs and to set aside significant time—perhaps one day a week—when they could be considered on the Floor of the House. These SIs will be mini-Bills, important future statutes as we leave the EU, and our existing arrangements for EU scrutiny are inadequate if this new need is to be met satisfactorily.

I believe that all noble Lords will want to know, before they agree to the significant delegated powers in the Bill, that the scrutiny system envisaged can meet the needs of the moment and hence attract confidence across the House.

--- Later in debate ---

Moved by

[Lord Lisvane]

110: Clause 7, page 6, line 27, at end insert—
“( ) Where regulations under subsection (1) confer power to legislate by subordinate instrument, the instrument is subject to the same parliamentary control and the same time limit in subsection (8) as are the regulations.”

[Lord Lisvane]

My Lords, in moving Amendment 110 I shall speak also to Amendment 135, both of which are also tabled in the names of my noble and learned friend Lord Judge, my noble friend Lord Pannick and the noble Lord, Lord Tyler, who like me is a member of the Delegated Powers Committee. The amendments seek to place controls upon the use of sub-delegation and the creation of tertiary legislation. We have had something of a preview to this in the debate on Amendment 71 held last Wednesday, and earlier today the horror story about the Bar Standards Board told by the noble Lord, Lord Thomas of Gresford, which I think would have greatly alarmed my nervous maiden aunts.

I was extremely grateful to my noble friend Lord Wilson of Dinton for moving Amendment 71 last Wednesday and to the Committee for its understanding of why I could not do so myself. My noble friend made a magisterial and compelling speech in which he pointed out that the powers in Clauses 7, 8 and 9 could be used to sub-delegate. Indeed, so compelling was his speech that the only person who disagreed with him in the debate was the Minister. That reminded me of the story of Benjamin Jowett: when he was the Master of Balliol and was outvoted 20 to one at a college meeting, he said, “Gentlemen, we appear to have reached deadlock”.

This Bill is riddled with provisions which have serious constitutional implications, and the unrestricted power of sub-delegation is one of them. It allows Ministers to authorise bodies and even individual persons to make law without the approval of Parliament. As the Delegated Powers Committee pointed out, there is no requirement for this legislation to be made by statutory instrument. If it is not made by SI, the Statutory Instruments Act 1946 does not apply to it and the legislation does not have to be laid before Parliament or even published. The possibility that law which the citizen must obey might not be published offends against the first of the late Lord Bingham’s eight principles of the rule of the law: that the law must be accessible as well as clear and predictable.

The Government memorandum submitted to the Delegated Powers Committee suggested that the power to make tertiary legislation is intended to be used sparingly. Once again we come back to the fact that what matters is what is on the face of the Act. If the power of sub-delegation is there, you can bet that it will be used whenever convenient to the Government of the day. Moreover, it will go on being used. In addition to these amendments, I have tabled Amendment 365 to paragraph 28 of Schedule 8 which would complete the removal of the exemption for tertiary legislation from the two-year sunset provision for secondary legislation-making powers. Slightly oddly, it has not been grouped with these amendments, but when we reach it, it will provide us with a further opportunity to consider the Government’s response to the amendments in this group.

As the Delegated Powers Committee points out, the power to make tertiary legislation could be given to new bodies to control and regulate, by legislation and without any parliamentary control, areas that are currently governed by EU law. These include aviation, banking, investment services, chemicals, agriculture, fisheries and medicines. They would all become in effect judges in their own cause. Amendments 110 and 135 would subject sub-delegation to the same parliamentary control and time limits as regulations in the first tier of delegation. I beg to move.

[Lord Judge (CB)]

My Lords, if we reflect on the words used by my noble friend Lord Lisvane, it is really rather chilling. There will be power in a Minister to create laws by giving him or her a blank sheet of paper so that he or she can write out whatever he or she thinks is appropriate. It will be uncontrolled and unscrutinised.

--- Later in debate ---

[Lord Callanan]

We said that we would return to this matter on Report, but we are now talking about the sub-delegation of those fees and charges.

Moving on to Amendment 352 in the name of my noble friend Lord Hailsham, I am in total agreement with the principle that the Government should not raise fees or charges from the public, whether businesses or individuals, without considering the impact on those who will pay or the impact on both the payers and the wider economy. I may be wrong but I doubt that many in this Committee, other than the noble Lord, Lord Macpherson, who is sadly not in his place and is of course intimately familiar with it, will have read Managing Public Money. This weighty tome is easily available online and serves as the sacred text of Her Majesty’s Treasury regarding many things, including the setting of new fees and charges. It sets out that charges on the public must be subject to the general practices on consultation and economic and financial analysis. Without this, the consent of Her Majesty’s Treasury to establishing a new fee or charge, required by paragraph 3 of Schedule 4 for all new fees or charges under the Bill, cannot be obtained.

I hope that this long explanation, for which I apologise at this late hour, and my other points have gone some way to reassuring noble Lords. I am happy to continue discussing these important issues, but in the meantime I hope noble Lords will not press their amendments today.

[Lord Lisvane]

My Lords, I am extremely grateful to the Minister for the detail he went into in his reply, particularly at this late hour. I also pay tribute to him for his customary generosity in being prepared to discuss these matters outside the Chamber. He recommended one weighty tome with which, as a former accounting officer, I am moderately familiar. Perhaps I may recommend to him another weighty tome, Craies On Legislation, edited in masterly fashion by Daniel Greenberg, former parliamentary counsel. I think it is at chapter 3.5.1 that he will find a very good treatment of the dos and don’ts of sub-delegation. That might be something we discuss before we come back to these matters on Report.

Of course, he is absolutely right to say that the consigning of these powers to a body or a person will require the affirmative procedure, and that is fine up to a point, but the exercise of the powers, once sub-delegated, will be free of the trammels of the accepted processes, so it becomes even more important that, in the consigning of the powers, the constraints on how they can be used by the consignee, if I can use that rather unlegislative term, are made absolutely clear. That is something, perhaps, on which we can have further conversations between now and Report. On that basis, I beg leave to withdraw Amendment 110.

Amendment 110 withdrawn.

European Union (Notification of Withdrawal) Bill

Lord Lisvane Excerpts

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

[Baroness Deech (CB)]

My Lords—

[Lord Lisvane (CB)]

My Lords—

[Noble Lords]

Lisvane!

[Lord Lisvane]

My Lords, I am extremely grateful to my noble friend; no doubt she will have her opportunity in a moment. After more than four decades in which I sought to make the most modest of modest contributions to parliamentary effectiveness and reputation, I hope that my credentials as an advocate of parliamentary sovereignty will not be challenged. I am very grateful to my noble friend Lord Pannick not only for his kind words but also for his recasting of Amendment 3. I agree with him that, if this amendment were to be agreed, the means of approval would be in the hands of the Government. So I hope that he and noble Lords will forgive me if I repeat some of the issues that, in that case, the Government should have in mind.

So far, ministerial language has been in terms of “a vote” and “a Motion”. That rather suggests proceeding by resolution—and, if so, the concerns I expressed in Committee are unallayed. What happens if one House votes one way and the other House votes the other way? Does qualified approval, perhaps with a conditional rider, count as approval? Would it be acceptable in those circumstances to give this House an effective veto over the process?

If, on the other hand, primary legislation is contemplated, the issue of interpreting some sort of qualified approval, or the terms of approval, remains. Even in the unloved Fixed-term Parliaments Act, specific wording for a Motion of confidence or no confidence was inserted to avoid the possibility of recourse to the courts. In matters of the present gravity, recourse to the courts would be even more unwelcome. My father had a ghastly warning about the dangers of overspecification in legislation. He quoted what was alleged to have been a rule at Heidelberg University, which stated: “No one shall tie anything, whether a nightwatchman or not a nightwatchman, to anything, whether a lightning conductor or not a lightning conductor, at any time, whether or not during a thunderstorm”. I do not ask for that degree of specification—but, if primary legislation is contemplated, the terms of approval need to be considered very carefully indeed.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am genuinely torn on how to vote on this amendment and turn to my noble and very able friend the Minister to guide me in this respect. I listened very carefully to all the speakers this afternoon, particularly the noble Baroness, Lady Kennedy, who I think comes at this with the same approach that I do. These amendments seem based to me on a very simple proposition, which is that rights given to British subjects by statute can be removed only by statute.

Of the two alternatives available, particularly in Amendment 3, which I am tempted and minded to support—a resolution to be passed by both Houses or a Bill to be passed by both Houses—the amendment neatly leaves it to the Government to determine the means to choose. I would like to know—and I seek guidance from the Minister and very powerful arguments against—why it would not be appropriate to include the amendment here on the face of the Bill. I say this because this is the last procedural stage before we embark on the substance. We are told that there will not be just the great repeal Bill but a number of substantive primary pieces of legislation as well as, no doubt, multiple pieces of secondary legislation to repeal some of the acquis that we might wish no longer to apply.

Why is it important to write it on the face of the Bill? It is for so many reasons: times change; politics change and personalities change. We are being asked to take an awful lot on trust here, both in terms of a commitment from the Government and in terms of a commitment given on the Floor of the House of Commons that Parliament and the Government would hope to follow through. Surely it is only right and proper that it should be put on the face of the Bill.

I remind the House that we spent about two hours and 30 minutes talking about the rights of EU nationals going forward. If the referendum had been held on the same terms as the European Parliament elections, all the EU nationals living here for the required length of time would have been able to vote. As I understand it from memory, an amendment passed in this House deprived those 1 million EU nationals living in this country of the right to vote. In fact, that 1 million number could have changed the outcome of the referendum overnight.

I refer to the words of the noble and learned Lord, Lord Hope of Craighead, in summing up on Second Reading. He expressed to the Government, in a helpful way, that the Supreme Court’s decision in Miller went further than just this Bill before us today, which embarks on the negotiation procedure. A majority of the House would not wish to stand in the way of the triggering of the process. By the same token, the noble and learned Lord went on to say, in respect to not writing into the face of the Bill—I do not want to press him too hard, but I think that the noble and learned Lord was saying the same—that,

“obtaining approval by resolution in Parliament is not the same thing as being given statutory authority”.

That is why he cautioned the Government against thinking that this Bill before the House today,

“on its own will give them all the authority they need, or that obtaining approval for an agreement by resolution is the same thing as being given statutory authority to conclude that agreement”.—[Official Report, 20/2/17; col. 23.]

I will refer also to an article written by five eminent QCs, including three knights, who gave their opinion on the matter and stated:

“Meaningful Parliamentary decision-making cannot be achieved by Parliament authorising exit from the European Union, two years in advance, on as yet unknown terms. Equally, it cannot be achieved by a single ‘take it or leave it’ vote at the end of the process”.


The article argues very straightforwardly:

“The constitutional requirements for a decision by the United Kingdom to leave the European Union include the enactment of primary legislation consenting to give legal effect to the terms of a withdrawal agreement between the United Kingdom and the European Union”.


Therefore, rather than being a wrecking amendment, I see this amendment as being potentially helpful to the Government, responding to a situation that we found ourselves in, having now lost three to six months through a court case and then an appeal, by writing on to the face of the Bill that Parliament—these two Houses —will have the final say. It will be of the Government’s choosing what the mechanism will be—whether a resolution of both Houses or an Act of Parliament. Otherwise, there will be a complete lack of clarity over what remaining rights already extended to British subjects can continue to be relied on. I will go further and say that, when we come to the great repeal Bill, there will be a complete lack of clarity over the court on which we should rely to make sure that those outstanding rights can be enforced.

European Union (Notification of Withdrawal) Bill

Lord Lisvane Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord Higgins (Con)]

My Lords, Amendment 17 is tremendously important because it seeks to assert that the decisions on these matters should be taken by Parliament. I have great difficulty understanding why the Prime Minister and, apparently, the Government have seemed so determined to avoid that happening, to the extent of bringing a totally unnecessary court case. They could have gone back right from the start on the procedure we are now going through at considerable public expense. Against that background, it is very important that we should get this amendment right. We must have an awful lot of thought between now and next week to ensure that the amendment we actually pass is the right amendment.

The other point that one needs to take into account is the situation likely to arise towards the conclusion of the negotiations. It seems to me essential that Parliament should decide whether it does or does not accept those negotiations. The difficulty is that if no deal is reached, the whole deal is off and we are back to the situation before we joined the European Union. The interesting question is: if the deal is clearly worse than remaining in the European Union, what happens then? At that point, Parliament needs to consider whether it has accepted the result of the referendum. If it has done everything possible to bring it about but now finds itself in the situation where it is blatantly obvious that the deal is worse than remaining in, it ought to make that decision. Those who voted in the referendum in favour of leaving should realise that that is a sensible solution for us to adopt.

There is one further point that we need to consider before next week and we will need to read very carefully everything that has been said this evening. We may find at the end of negotiations that we would like to change our minds and it would be better to go back to the situation before the referendum. A committee of your Lordships’ House dealt with that issue very clearly having taken expert advice from, I am assured, some very good lawyers, who said that we could change our minds. That possibility was disputed by a number of other lawyers, not least international lawyers. It would be extremely helpful if we could have a definitive view from the Government next week on what the situation is.

We have a lot of work ahead of us for the next few days, but this has been an immensely helpful debate. There is a problem with proposed new subsection (4) of the amendment. I interpreted that as being enormously pro-Brexit. It states that Ministers are not allowed to stop the arrangements if they want to. Having said all that, it has been helpful to have this debate this evening and I look forward to hearing my noble friend Lord Hailsham, who was kind enough to give way to let me speak before him.

[Lord Lisvane (CB)]

My Lords, I hope that the noble Viscount will be kind enough to allow me to interpose very briefly. I support the thrust of Amendment 17 and certainly the aim that it seeks to achieve, but I have a couple of questions about the mechanisms that it proposes to do that. It proposes proceeding by resolution of each House. There are two issues. First, what happens if a straightforward approval Motion is amended and the final result is a resolution that overall approves an outcome but contains some sort of rider or condition? Regulating parliamentary proceedings by statute, in my experience, generally ends in some sort of tears. A question of whether the outcome met the requirements of the legislation could be resolved only by the courts, and that might not be a welcome result.

Secondly, what happens if one House comes to the required resolution but the other does not? Perhaps the solution is one that would endorse the sage advice given earlier by my noble and learned friend Lord Hope of Craighead which is to employ primary legislation, because that contains very well-understood mechanisms for securing agreement between the two Houses.

[Viscount Hailsham]

My Lords, I know the hour is late so I will be very short; I will confine myself to making three points. The first is to adopt the language of my noble friend Lord Deben. This House must recognise that, ultimately, the decision has to be made by Parliament. Historically, there has always been tension between the Executive and Parliament and I happen to be a Roundhead on this matter. Let us not forget, as my noble friend pointed out, that we would not be debating this Bill had the courts not intervened. The truth is that Governments always seek to advance ministerial power at the expense of Parliament and we must push back. The historians among us will remember John Dunning saying that,

“the influence of the crown has increased, is increasing, and ought to be diminished”,

and, with suitable alteration, that is where I stand.

My second point refers to what the noble Baroness, Lady Kennedy, said a propos the risk of there being no agreement. The noble Lord, Lord Kerr, assessed that risk as being higher than 30% and I entirely share that view. We need to address that in statutory language. That is what I tried to achieve in the new clause that would be introduced by my Amendment 32.

My final point, turning to the noble Lord, Lord Pannick—I know it is the view of the noble Baroness as well—is that assurances are well and good and I do not at all doubt the good faith of the Ministers who give them. But I prefer to see assurances in statutory language. Prime Ministers can go, Ministers can be sacked, Parliaments can change and Governments can cease to exist. One needs to enshrine assurances that stand against those changes in circumstances. Therefore, whenever we come to divide on this group of amendments, whichever is chosen, I shall support it because I stand in favour of parliamentary government.

The Process for Triggering Article 50

Lord Lisvane Excerpts

Tuesday 24th January 2017 Lords Chamber

[Lord Bridges of Headley]

I thank the noble Lord for those extremely wise words. I concur with him absolutely. As I said, the Government are intent on delivering the outcome of the referendum, and we will see that through.

[Lord Lisvane (CB)]

My Lords, would the Minister like to hazard a guess as to whether provision for a post-negotiation referendum would be within the scope of an Article 50 Bill?

[Lord Bridges of Headley]

I think the noble Lord answers the question himself by asking whether I would like to hazard a guess. I do not like guessing at the Dispatch Box.