Article 50 (Constitution Committee Report)

Baroness Hayter of Kentish Town Excerpts

Tuesday 22nd November 2016 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I join others in thanking the noble Lords, Lord Lang and Lord Boswell, and their hard-working committees, for these very thorough, clearly written—always appreciated —and forward-thinking reports. I also thank them for the debate today, although I doubt whether we need to debate Article 50. There should be no need for discussion on it, as the Government—albeit not the noble Lords, Lord Kerr and Lord Hannay—accept that, once triggered, there is no going back. There is then the inevitable withdrawal from the EU and the deprivation of certain rights from British citizens. Consequently, it can only be Parliament, not the Crown, which takes the trigger action that leads to that inevitable result. The unanimous, unambiguous High Court ruling was that,

“the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50”,

of the treaty.

At one level, that is fairly obvious. Had some Prime Minister suddenly woken up one morning, posted off a letter to Brussels invoking Article 50 without a referendum or even a Cabinet decision, it would still have been an irrevocable move. But if the Government’s argument on Crown prerogative is right, it would have been “in accordance with” our “own constitutional requirements”. It would therefore be unstoppable by Parliament—if the Government are right that Article 50 cannot be stopped—so it would happen. We could sack the Prime Minister who had done the deed, but we could not undo the deed. As the judges said, the referendum was only advisory, so in law—albeit not in politics—this Prime Minister, even after the referendum, would be doing something with no statutory authority from the people or from Parliament. Indeed, as the noble Lord, Lord Lang of Monkton, reminded us, and as was mentioned by the noble Lords, Lord Hunt of Wirral and Lord Bilimoria, the Constitution Committee stated:

“It would be constitutionally inappropriate, not to mention setting a disturbing precedent, for the Executive to act on an advisory referendum without explicit parliamentary approval”.

The question is: why on earth are the Government appealing against that decision? It is what I think the noble Lord, Lord Hunt of Wirral, called an unnecessary sideshow, and the noble Lord, Lord Kerr, called a distraction. Do the Government really want to deny Parliament a say in Article 50, and at what cost to our economy? Increasingly, business is saying, “Please get on and tell us what your negotiating plan is”. Just yesterday, the president of the CBI called on the Government to “minimise the uncertainty”, asking her to set out what the Government will prioritise in their negotiations. As he said, the CBI membership is,

“100 per cent committed to making the best of Brexit”,

which,

“means maintaining tariff-free access to the European market … maintaining … global trade deals … making the best … of talent available globally”.

But, experienced negotiator as it is, the CBI also said:

“We’re not asking for a running commentary—but we are looking for clarity and—above all—a plan”.

It is not surprising that it wants some clarity as, in the Czech Republic, Boris Johnson said,

“probably we will need to leave the customs union”.

That would be a major step with enormous implications for our exporters and consumers. Indeed, falling back on WTO rules would be the most destructive of the settlements available, leading to fewer jobs, less investment and, probably, a poorer population. Can the Minister clarify whether that particular statement of the Foreign Secretary is indeed the settled government view and, if not, what is?

As the CBI recognises, leaving the customs union and reverting to WTO rules could not even be in place within two years. It has asked the Government to commit to transitional arrangements, as it fears a clock striking midnight when the two years are up, and a cliff edge—a sudden, overnight transformation in trading conditions, with firms stranded in a regulatory no-man’s land.

It appeared yesterday that the Prime Minister acknowledges the danger of a cliff edge, although today we hear that she may not after all want an interim deal. Does she acknowledge, as we have learned from our discussions with member states and—yes, I say to the noble Lord, Lord Balfe—Members of the European Parliament, both in the Labour Party and from other PES countries, and indeed from sources close to the Commission, that such transitional arrangements would depend on the final departure package?

Indeed, such transitional arrangements would probably require all 27 sets of ratification through perhaps 36 different bodies. Such transitional arrangements anyway would need to cover the journey from the point of exit to the final position. That means that the EU27 would need to know where that final position is—the end of the bridge, in the words of the noble Lord, Lord Kerr. To agree a bridge, we have to know where exactly on the other side will be our final position. It will also probably mean knowing when we will remove ourselves from the four freedoms which the EU sees as fundamental to the single market.

That is what the Government should now be discussing as they draw up their framework for negotiations, using all the skill and experience, as we have heard, of your Lordships’ House in what are going to be fiendishly difficult talks, with challenging trade-offs to navigate. As the EU Committee stressed, these,

“negotiations ... will be unprecedented in their complexity”,

and it “is inconceivable that” they,

“should be conducted …without active parliamentary scrutiny”.

David Davis said to his party conference last month, when talking about EU partners:

“If we want to be treated with goodwill, we must act with goodwill”.

He might well have been referring to Parliament. If the Government trust us, they will find that we respond positively.

So I revert to the question posed by the noble Lord, Lord Balfe, and my noble friend Lord Davies: why are the Government not bringing Article 50 to Parliament? Why are they taking the appeal to the Supreme Court, wasting valuable energy and time, to say nothing of money or the public’s patience? Is it simply obstinacy on the part of the Prime Minister because it was not the original decision? The focus of her time and effort should be preparing for the very complex—“tortuous” was the word used by the noble Lord, Lord MacGregor —set of negotiations which will follow. The bargaining will be hard. Tough choices will have to be made. How much more expedient it would be for the Prime Minister to be at that negotiating table with the strength of a parliamentary vote—freely requested—behind her, rather than a resisted vote, dragged out of her by the highest court in the land.

As our own Constitution Committee said before the original court case, it was always going to be better to go to Parliament rather than using the prerogative. That is the best and perhaps the only way to build a national consensus and bring the county together once more on this—having an informed, mature conversation with the British people and their representatives. In the words of the noble Lord, Lord Boswell, getting a parliamentary and public buy-in to that final deal is why we favour a parliamentary vote.

Even now, at this late hour, we call on the Government to return to Parliament its rightful role in taking this momentous step. I hope that opposite me is a brick wall, in the sense that we get back some answers rather than these questions just being lodged in the hedge.