Article 50 (Constitution Committee Report)

Lord MacGregor of Pulham Market Excerpts

Tuesday 22nd November 2016 Lords Chamber

[Lord MacGregor of Pulham Market (Con)]

My Lords, it is a great pleasure and a daunting experience to follow the noble Lord, Lord Kerr of Kinlochard, whose knowledge of the practical working details of the Community and of the whole area is more or less unrivalled. It is very helpful to all of us to have his views and experience.

My own direct experience of the EU is dated—to the 1980s and early 1990s—and limited: it was when I was at MAFF and then Secretary of State for Transport. I have to say that sometimes I felt my MAFF experience meant that the former was a full-time Brussels commitment. I have many memories of the difficulties but also of the opportunities that arise. The noble Lord, Lord Kerr, and other noble Lords steeped in EU work have particular knowledge of EU negotiations, and not least the timescale and intensity of what we now face, of which I believe our fellow countrymen are totally unaware. That is a theme that I want to come back to.

Here I follow my noble friends Lord Lang and Lord Hunt: the almost hysterical reaction from some of the media and elsewhere to the recent High Court judgment, with headlines like “The Judges Versus the People” and “Enemies of the People”, to quote but two, was ill-judged, unfair and uncalled-for. The judges were not expressing a political view about withdrawal from the EU but simply stating that such a withdrawal requires parliamentary approval in the form not of a vote but of a statute. I quote:

“Parliament having taken the major step of switching on the direct effect of EU law in the national legal system by passing the European Communities Act 1972 as primary legislation, it is not plausible to suppose that it intended that the Crown should be able by its own unilateral action under its prerogative powers to switch it off again”.

In other words, far from undermining the people and presuming more powers for themselves, the judges were actually performing their proper constitutional role and upholding the supremacy and powers of Parliament itself.

The judges were not the only ones to make this point; as my noble friend Lord Lang pointed out, our own Select Committee, of which I am a member, in its report on the working of Article 50 published in September, before the High Court hearing, concluded that,

“an Act could make clear that Parliament had given its authority to the Government to start a process that might well lead to existing legislation being repealed or substantially amended,”

and that any Act of Parliament would ensure that any constitutional uncertainties were avoided. That is an important point that we made. So I believe the judges were completely justified in the position that they took. I emphasise the vital role of both Houses in all these matters—and that is what we were endeavouring to make clear in our report.

I turn to the EU Committee’s excellent report on The Process of Withdrawing from the European Union. One needs only to dip into it to see how tortuous and complex the negotiations will be. I have two questions for the Minister arising from the report. First, conclusion 15 on page 5 states:

“There is nothing in Article 50 formally to prevent a Member State from reversing its decision to withdraw in the course of the withdrawal negotiations”.

I ask the Minister: is that a possibility and what will the terms be?

Paragraph 30 of the report states:

“One of the most important aspects of the withdrawal negotiations would be determining the acquired rights of the two million or so UK citizens living in other Member States, and equally of EU citizens living in the UK”.

The report describes this as a “complex and daunting task”. The Minister will know that this is already causing great concern to many such citizens. Can he give us any information as to the progress on this matter and some consolation to those concerned?

The comments of Sir David Edward and Professor Derrick Wyatt in paragraphs 31 to 60 make compelling reading. One little practical point resonated with me, when they were referring to the difficulty of some of the negotiations. They took as an example member states that would have interests other than those absolutely being discussed in the Council at the time. Professor Wyatt said:

“If I am a hypothetical east European country, with a very obvious and genuine interest in both the position of my nationals resident in the United Kingdom and the future access of the UK, I might not be interested in fisheries as such but I might want to block a deal on fisheries unless I get what I want on transition and future access for my nationals”.

That is just one simple example of where all the complexities will arise.

In comments in chapter 5 about the length of the negotiations, Sir David said:

“The long-term ghastliness of the legal complications is almost unimaginable”.

There is another clear example of the complexities of the negotiations. I do not envy the negotiators.

In paragraph 54, the committee, referring to its evidence, concludes:

“No firm prediction can be made as to how long the negotiations on withdrawal and a new relationship would take if the UK were to vote to leave the EU. It is clear, though, that they would take several years—trade deals between the EU and non-EU States have taken between four and nine years on average”.

The report continues:

“It would be in the interests of the UK and its citizens, and in the interests of the remaining Member States and their citizens, to achieve a negotiated settlement. This would almost certainly necessitate extending the negotiating period beyond the two years provided for in Article 50”.

I think we all recognise that it is likely to be extended beyond the two-year period, but it is the implications for further trade deals and so on that I do not believe that the British public are yet aware of.

It would be in the Government’s interest to prepare the public for a long haul. I have not even had time to comment on the role of the European Parliament, wider international trade negotiations and so on. They, too, are self-evident but are not being talked about by the public as a whole.

In conclusion, the committee’s report on the process of withdrawing from the European Union deserves the widest possible circulation. I do not think that the complexities and timescale of the forthcoming negotiations have yet begun to sink into the public consciousness.