European Union (Notification of Withdrawal) Bill

Viscount Hailsham Excerpts

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

[Lord Pannick]

The noble Lord will form his own judgment; I am putting to the House that this amendment implements the undertaking given by the Prime Minister. She has recognised—in my view rightly—that so important are these matters that it is necessary, and imperative, to obtain the approval of both Houses of Parliament. The constitutional realities, as I understand them, are that this House is exceptionally unlikely to stand its ground against the view of the elected House. However, noble Lords will form their own judgment.

[Viscount Hailsham (Con)]

My Lords, does the noble Lord also agree that there is nothing in this proposed new clause that precludes the approval of both Houses being expressed in an Act of Parliament? If that is correct, the Parliament Act stands behind it.

[Lord Pannick]

I am grateful to the noble Viscount. As I have already said, this amendment is different from the amendment that we had in Committee because it does not state by what the means the Government must seek the approval of both Houses. The noble Viscount is absolutely right: it is open to the Government to proceed by way of emergency legislation.

--- Later in debate ---

[Lord Forsyth of Drumlean]

It is not the Prime Minister’s proposal. It is a ridiculous proposal to say that the Prime Minister may not conclude an agreement until this has been sorted.

[Viscount Hailsham]

Would my noble friend give way?

[Lord Forsyth of Drumlean]

No, I am not going to give way to my noble friend.

--- Later in debate ---

[Lord Turner of Ecchinswell]

The very argument as to why we should not commit to a future referendum, the uncertainty of the situation we will then face, is, however, the argument why it is appropriate for us to come back for a detailed debate in both Houses of Parliament at that time to deal with the uncertain circumstances that will then exist. Like others around this House I would in some ways prefer that this referendum more clearly identified the relative powers of the Commons and the Lords in that process. I would have preferred the earlier version of the amendment, which proposed that a legislative process should be brought forward at that time. The most important principle is that we should not treat 23 June as providing answers for ever or the answers to everything. It is therefore absolutely appropriate for us to assert that there should be a process of parliamentary sovereignty, where the details of what is proposed are brought back to both Houses of Parliament for detailed debate at that time.

[Viscount Hailsham]

My Lords—

[Lord Lawson of Blaby (Con)]

My Lords—

[Lord Taylor of Holbeach]

My noble friend Lord Hailsham is a signatory to this amendment and it is right that the House hear from him. Perhaps we can then hear from the Labour Benches, and then from one of my noble friends on the Conservative Benches.

[Viscount Hailsham]

My Lords, those who have put their names to the proposed new clause are not seeking to stand in the way of the Bill. Our sole purpose is to ensure that the outcome—agreed terms or no agreed terms—is subject to the unfettered discretion of Parliament. It is, in our view, Parliament and not the Executive which should be the final arbiter of our country’s future. Ironically, in this sense we stand with the campaigners for Brexit who wanted Parliament to recover control over policy and legislation. Incidentally, too, we stand in that long tradition of parliamentarians who have stood for the primacy of Parliament against ministerial fiat. In the old days, that was a contest fought on the battlefields; happily, more recently it has been fought in public debate. Of course, most recently of all it was fought in the law courts. This is a conflict that never ceases. Let us not forget that, had it not been for the judiciary, we would not be debating this Bill—oh no. It was the Government’s intention to trigger Article 50 under prerogative powers; that is, under the residual powers of the Crown.

It is absolutely central that we should determine the proper interpretation to be given to the referendum of last June. I acknowledge at once—albeit I was a remainer—that the referendum was much more than merely the advisory expression of public opinion. However, I do deny that it gave authority to this Government to leave the European Union whatever the cost, whatever the terms and whatever the prejudice. That cannot be the case because when the public voted last June, they did not—could not—know the outcome. In any event, the Government’s commitment to subject the ultimate decision to a vote of Parliament undercuts that very proposition.

I believe that the proper interpretation of the referendum is this: it is an instruction to the Government to negotiate withdrawal on the best terms they can get. But that raises an absolutely fundamental question to which this proposed new clause is directed. When the negotiations have crystallised and there are agreed terms—or, perhaps, no agreed terms—who determines the way forward: is it the Executive or is it Parliament? That is the old question we have to resolve. In my view, any believer in a democratic state has to say that the authority lies with Parliament.

In very brief reference to a second referendum, it may be that Parliament, two years down the track, will decide that it is necessary. It may be justified in doing so; the circumstances may well change. Say, in two years’ time, there is a clear change in public sentiment. Say, too, that Parliament recognises that fact. Is Parliament not then under a duty to test public opinion? I quote the noble Lord, Lord Taverne, who spoke earlier today. At Second Reading he said that only dictatorships,

“do not allow people to change their mind but in a democracy no decision is ever irreversible”.—[Official Report, 21/2/17; col. 243.]

I want to turn to the argument that has been advanced by my noble friend Lord Hill of Oareford, who is indeed a very old friend of mine. I say at once that I acknowledge his experience and authority, which are recent. His view, which I am sure will be adopted by the Government, is that if you give Parliament the kinds of powers contemplated by the proposed new clause, you will undercut the negotiating position of the British Government. I do not agree with that view. I share the view expressed by the noble Lords, Lord O’Donnell and Lord Kerr, both citing their own very considerable experience, that the existence of the argument that Parliament will never wear this reinforces rather than undermines the position of the negotiators.

[Lord Hill of Oareford (Con)]

One of my noble friend’s most endearing characteristics is that he cannot walk past a wasps’ nest without wanting to poke it with a stick. He has just succeeded. There are two points that I would ask him to reflect on, which we have already touched on in this debate.

The first—which my noble friend and, I think, all noble Lords, with a few exceptions, would agree with—is that this is going to be an extremely complex negotiation. Anything that adds to that complexity is strongly to be avoided, in my opinion. I do not agree with those who say that this is going to be very simple and we can sort it all out in a matter of time. This is going to be complicated, so we should keep things as least complex as we can make them. When I listened to the noble Lord, Lord Pannick, set out this amendment, it added to my sense that complexity and uncertainty is contained in it.

Secondly, regarding the effect this might have on the negotiation, does my noble friend agree that the argument some people use—that having a Parliament or a board behind you in a negotiation enables you to have a stronger position—normally applies when the board or the Parliament is adopting a harder line than the person negotiating? I have to tell your Lordships that our friends in Europe do read our debates and our media. They are highly intelligent, sophisticated negotiators. They know where people sit. When my noble friend says that it would not weaken our position, can he not see that there are indeed instances where it would weaken our position because it would make Parliament a player in the negotiation and add complexity to what is already going to be very complex?

[Viscount Hailsham]

My Lords, my noble friend has made a very serious point, which enables me to cut directly to the chase, to one of the points I was going to make. It is possible that my noble friend Lord Hill is right about this. There is sometimes a price to be paid for democracy. Indeed, that is the argument that underpins many of the assertions made by the Brexiteers. They argue that, yes, there may be a cost involved in withdrawal but it is more than compensated for by the recovery of democratic control. That argument also applies to the process of negotiation.

[Lord Ashdown of Norton-sub-Hamdon (LD)]

In answer to that very question, I ask the noble Viscount to cast his mind back to 1991, when he and I were both in the other place. He was a member of the Government, as I recall. On that occasion the then Prime Minister, John Major, brought the Maastricht treaty to the House for its approval twice; first, in seeking a mandate for negotiation; and, secondly, afterwards in seeking the House’s approval for what had been negotiated. If that did not weaken his Government at the time, why should this weaken this one?

[Viscount Hailsham]

My Lords, I entirely agree with what the noble Lord has said. Of course, it is also consistent with the principles that underpin Section 20 of the 2010 Act, because that requires all treaties to be ratified by Parliament.

If I might make a little progress, the Government have in the course of the Bill made a very large number of concessions. It would be churlish not to welcome that fact. Indeed, I rather hope for more. But I agree with the views expressed by the noble Baroness, Lady Kennedy, and the noble Lord, Lord Pannick. It is better by far that the assurances and concessions of Ministers be expressed in statutory language because, as the noble Lord, Lord Oates, has reminded the House, political circumstances may change. Ministers may move on; Governments may fall. Statutory language is always to be preferred to the comforting words of Ministers.