European Union (Notification of Withdrawal) Bill

Baroness Deech Excerpts

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

It might be argued that all Parliament would be doing would be instructing the Government to go back to Brussels and accept whatever agreement, however bad, the 27 were prepared to offer. That is clearly unacceptable, and indeed constitutionally improper. The only practical effect of subsection (4) would be to create a political crisis, causing highly damaging uncertainty to business and the economy, which could in practice be resolved only by a dissolution of Parliament and a general election—something the Opposition can always try to achieve, if that is what they wish, without this clause, simply by moving and carrying a vote of no confidence in the Government. This mischievous proposed new clause, masquerading as an assertion of parliamentary sovereignty, deserves to be rejected out of hand.

[Baroness Deech (CB)]

My Lords—

[Lord Lisvane (CB)]

My Lords—

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[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.

[Baroness Deech]

My Lords—

[Baroness Symons of Vernham Dean (Lab)]

My Lords—

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[Lord Taylor of Holbeach]

My Lords, I think we will hear from the noble Baroness, Lady Deech, then from the noble Baroness, Lady Symons, and then from my noble and learned friend Lord Mackay.

[Baroness Deech]

My Lords, I wish to say a few, brief words about sovereignty and the likely outcome if Parliament disapproves a deal at the end of the negotiations in two years’ time. The sad fact is that because of the construction of Article 50, we will not recover our parliamentary sovereignty in European matters until the whole process is over. If we contemplate what might happen in two years’ time, we see only too clearly that sovereignty lies with Europe. If this House or the other House were to reject the deal, we would end up as puppets in their hands. Can it honestly be imagined that if one or other House, whether through approval or an Act of Parliament, goes back to Europe in just under two years’ time and says, “We don’t like the deal”, the other 27 will say, “Oh dear. Here is a much better one”, or, “Let us, all 27, now agree to extend the negotiation time”? I do not think so.

The noble Lord, Lord Oates, indicated that he did not trust the Prime Minister. I am sorry to say that I do not trust the other 27 members of the European Union to give us a good deal, or indeed to care very much about what happens to us or our nationals, because their only declared intent since last June has been: “You must be punished. The Union must survive, no matter what the cost. We will not accommodate you, we will not be kind to you”. There is no vision. There is no mission.

[Lord Lea of Crondall (Lab)]

Can the noble Baroness give us chapter and verse on who said that?

[Baroness Deech]

My Lords, I read it in the papers every day.

[Lord Lamont of Lerwick (Con)]

Perhaps the noble Baroness would quote to the noble Lord, Lord Lea, exactly what President Hollande said: “There has to be a price. There has to be a threat. There has to be a cost”.

[Baroness Deech]

Thank you.

Much of our argument turns on whether Article 50 is revocable or not. The Supreme Court judgment in Miller did not go that far. The judgment was based on the fact that triggering Article 50 would be the no turning back moment at which the two years would start and inevitably run their course. Indeed, I know that there has been a legal opinion from three knights that Article 50 is revocable, but I know from my dealings with lawyers that you can find another three knights who will tell you something quite different. Although I have heard it said that the noble Lord, Lord Kerr, drafted the article, so he knows what it is about, in our system, it is not the draftsman who in the end declares what the article means.

If parliamentary approval were needed at the end of the deal, what might it look like? Some parts of it might very well deal with European nationals. Only a few days ago, we were expressing our shock and dismay that the position of European nationals might not be taken care of. Would we be throwing them all into disarray in two years’ time if, among probably thousands of pages of deal, there was something about European nationals?

I am sorry to say that the noble Lord, Lord Pannick, has departed from his usual clarity in legal matters. He has tied himself and the House in knots. On the one hand, he says that we always defer in the end to the Commons. I wonder whether we will hear that this evening or next week if there is a head-on clash between our decision, if we approve the amendment, and what the House of Commons says. On the other hand, he has also said that approval is better than having an Act of Parliament: it leaves it open to the Prime Minister to decide what to do. But with an Act of Parliament expressing what is in the amendment, the Commons would prevail because of the Parliament Act. You cannot really have it both ways. The only other possible outcome at the end is no deal. The two-year shutter comes down and we are off the cliff—that is the general outcome. Others know just as well how difficult that would be.

Our lack of sovereignty means that if at the end of two years the rest of the European Union does not give us what we want and either House rejects that deal, the European Union will, for sure, not welcome us back with open arms, will not necessarily accept a revocation of Article 50 and not necessarily give us a better deal. That is the reality of the situation. We will have to take what comes our way in two years’ time.