European Union (Notification of Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

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

[Baroness Ludford]

My Lords, we have gone via all kinds of highways, by-ways, Aunt Sallies and red herrings—mixing my metaphors, no doubt—but the central issue of this amendment is, in the words of my noble friend Lord Lester: who is the master, Ministers or Parliament? The noble Viscount, Lord Hailsham, insisted that this was about taking back control for Parliament. It should not be the taking back of control for the Executive: Parliament should be in charge and in the driving seat.

The various criticisms of the amendment seem to me to be more properly directed at the Prime Minister’s assurance in the White Paper because—I think that the noble Lord, Lord Pannick, originally used this phrase—it gives the Prime Minister what she asked for. The noble Lord, Lord Hill of Oareford, said that it adds to the complexity and the noble Lord, Lord Tugendhat, said that it made it more complicated and muddied the waters. Well then, why did the Prime Minister pledge approval by both Houses of Parliament? As the noble Lord, Lord Cormack, and I think the noble Baroness, Lady McIntosh, said, this would put an assurance—an undertaking given by the Prime Minister—into a statutory obligation, and it is wise and sensible so to do.

There is no basis whatever for the assertion, made variously by the noble Lords, Lord Lawson and Lord Forsyth, and the most reverend Primate the Archbishop of York that it would give this House a veto. Given that the Prime Minister offered to give approval by both Houses of Parliament, presumably she knows how that would work and has shared it with the Government. It is for the Government to deal with that process, which could, as other noble Lords have mentioned, be avoided if there was primary legislation because then the rules would be clear.

The noble Baroness, Lady Stowell, counselled against an amendment that gives Parliament power, which I found a strange piece of advice. Surely Parliament has the right to such a power as we possess under the constitution, but it seems that it is not normal to have parliamentary power in the kind of parallel universe that Brexit has created. The amendment does not weaken the Government’s bargaining position. The statement, “I’ve got to get it past my legislators”, is perfectly good enough for a US president or EU negotiators. It should be more than good enough for the British Parliament.

The noble Lord, Lord Hill, said that our EU partners read our debates. Yes, they may well do, and they will in this case, but they know that we in this Parliament want really substantial content in a future relationship. We might even stiffen the Government’s backbone in the negotiations. I agree with the noble Baroness, Lady Symons of Vernham Dean, that far from being in conflict, getting the best deal and parliamentary sovereignty go hand in hand.

Finally, Brexiteers seem to claim that this is a wicked plot by remainers but, in fact, some of them seem to find Parliament an inconvenient obstacle to their dream of crashing out of the EU altogether. They want the Government to be able to action no deal; they do not want Parliament to be able to say, “Hang on—is that actually a good idea?”. That is why this amendment is extremely valid.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, this afternoon we have heard a really compelling case for quite a simple demand: the right of Parliament, rather than government, to authorise the arrangements whereby the Article 50 negotiations conclude. Indeed, probably no additional words are needed to strengthen the case made by the noble Lord, Lord Pannick, or many of the others who have spoken. I will not mention them all but the House will forgive me if I mention my noble friends Lady Kennedy of The Shaws and Lady Symons and the noble Baronesses, Lady Altmann, Lady McIntosh and Lady Ludford. What do they have in common? So I must also mention the noble Baroness, Lady Stowell, although sadly she was not able to support the case.

Essentially, Amendment 3 is about implementing the Supreme Court’s view that withdrawal would require parliamentary authorisation. The argument is straightforward. As the noble Lord, Lord Heseltine, said, it would secure in law the Government’s commitment that Parliament is the ultimate decider. Very shortly, maybe even next week, the Prime Minister will trigger Article 50 of the treaty. But neither that treaty nor any UK law states how the arrangements made by our Government should be made into law. What is written in the treaty—in EU law, in other words—is that the final agreement will go to the Council and to the European Parliament, so it is mandatory for that Parliament to give its consent but there is no similar requirement for this Parliament to give its consent.

The Prime Minister has said that she will allow a vote in both Houses and the noble Lord, Lord Forsyth, quoted Mr Jones saying that that was the intent. That, to me, is not a very firm commitment, no matter how sincerely it was given. Indeed, when the Minister said in Committee that the Government’s oral,

“commitment mirrors the powers of the European Parliament”,—[Official Report, 1/3/17; col. 923.]

he was not exactly right because its power is written in law. All we are asking is for an equal legislative requirement for the exit deal to come to this Parliament. It is basically about the Crown’s prerogative against Parliament’s.

I turn to the West Lothian question—no, not that but the Grocott question. We will have to call it the Grocott question as he no longer has a constituency. This was raised by the noble and learned Lord, Lord Mackay. It is true that whether we look at the undertaking given by the Prime Minister or at this amendment, there would be a problem if the House of Commons were to vote one way and your Lordships’ House another. I hope that will not be the case for lots of reasons. Particularly, I hope that by then not just the country but Parliament will have come together, and that we are of one view. But I make it clear from these Benches that if that were to be the outcome, we are absolutely clear that ultimately the will of the Commons must prevail.

Furthermore, if that is the only argument given against this amendment, there are two ways of answering it. One is that we do a bit of hurried work this evening to table an amendment and, if the Government were willing to accept it, that might be the easiest way. Keeping all my friends here late into the night, however, may not be the best way of achieving that end. We would not want to risk voting down the idea of Commons supremacy just because, very sensibly, everyone was back in their beds. The real issue is to get this principle into the Bill and down the road into the Commons. On behalf of the Opposition, I say that if that is the only point of dispute between us, given that we want the supremacy to be down there rather than here, we will happily work with the Government on the form of words to make that absolutely crystal clear.

[Lord Dykes (CB)]

Bearing in mind the emphasis the noble Baroness has quite rightly put on the two Houses coming together, would it really be intrinsically so nerve racking, fearful and awesome for the Commons, for once, to accept a Lords amendment such as this?

[Baroness Hayter of Kentish Town]

The Commons should certainly accept this amendment, albeit I am happy with the tweak to make certain the supremacy of the Commons. The most important thing is to get this amendment in the Bill so that we are absolutely clear about that.

It is so simple. Whatever the outcome of the negotiations with the EU 27, it is with Parliament, not simply with the Government, that authority lies, deal or no deal. I am afraid I did not follow the Minister’s response on this last week in Committee, questioning what would happen if the EU terminates the talks and refuses to extend the negotiations. He asked: what then? It is pretty simple: the Government come back to Parliament.

Stranger still than that is the briefing coming out of No. 10, with advisers arguing that giving legislators the power to veto the final Brexit deal and send the Premier back to the negotiating table would undermine her and limit the possibility of a good deal and, indeed, might even push the EU into giving a bad Brexit deal, incentivising it, it seems,

“in the hope it stops us leaving”.

That was what Downing Street apparently told the Financial Times, and I always believe the Financial Times.

I again remind the House that it was Mrs May who said that the deal would be put to a vote in both Houses, so all this is real nonsense. The only issue is whether it is an undertaking or in the Bill. All we are doing in this amendment is putting her pledge, which I am sure was absolutely sincerely given—I do not question that—in the Bill. It is hardly starting a revolution. It is certainly not upending the referendum, and any such arguments are in bad faith because we are trying to put the Prime Minister’s undertaking in the Bill. We do not want the Government’s hand to be forced by the courts. We want the vote to be clearly in the Bill, ideally with the Government’s blessing, without even the need for us to divide. They need to provide certainty at this stage so that we are not back having this debate in 18 months’ time. The amendment is about authorising Parliament. It is to put wheels on the outcome of the referendum.

[The Parliamentary Under-Secretary of State, Department for Exiting the European Union (Lord Bridges of Headley) (Con)]

My Lords, this debate has shown this House at its very best, and I thank all noble Lords who have spoken. Forty-four, I think, hours of debate on these 137 words show how sprightly your Lordships are.

Before I discuss the amendments, I shall briefly set out three core principles governing our approach to this country’s withdrawal from the European Union. First, the Government are determined to honour and deliver on the result of the referendum: the United Kingdom is going to leave the European Union. Secondly, everything we do will be determined by our national interest, and we shall do nothing to undermine it. Thirdly, parliamentary sovereignty is key. Parliament will have a role in scrutinising the Government throughout the negotiations and in making decisions, a point to which I will return.

Given this, I turn now to the rationale and motives behind the amendments tabled by my noble friend Lord Cormack, the noble Baroness, Lady Hayter, and the noble Lord, Lord Pannick. One basic intent is that the Government should be legally bound to deliver on their commitment to give Parliament a vote on the agreement. That government commitment is crystal clear, and I shall repeat it: the commitment is to bring forward a Motion on the final agreement to be approved by both Houses of Parliament before it is concluded. We expect and intend that this will happen before the European Parliament debates and votes on the final agreement.

The need for my noble friend Lord Cormack’s amendment, and the first three proposed new subsections of the amendment tabled by the noble Baroness, Lady Hayter, and the noble Lord, Lord Pannick, really comes down to a judgment about whether Ministers and the Government can be trusted and to considering the consequences if the Government were not to deliver on this commitment. All I can say is that of course we will honour our promise and Parliament will hold the Government to account for doing so. Let me go further and echo a point very well made by my noble friend Lord Howard: at any point throughout this process, Parliament will be able to express its view. Given this, the other place was happy with this state of affairs. It considered and rejected similar amendments.

Furthermore, Parliament will not be providing scrutiny in the dark. After all, this Government have committed to keeping the UK Parliament at least as well informed as the European Parliament as negotiations progress. The Government will continue to be accountable to Parliament via regular Statements—which I so enjoy—debates and Select Committee appearances. Crucially, Parliament’s role will not just be one of scrutiny. It will make decisions and shape the legislation required to give effect to our withdrawal from the European Union: the great repeal Bill to repeal the ECA and the legislation that will be required for significant policy changes, such as on immigration and customs. With the greatest of respect to my noble friend Lord Cormack and the noble Baroness, Lady Hayter, any amendment that attempts to transcribe the Government’s commitment into legislation is unnecessary. More than being unnecessary, an amendment that sought to put this commitment in the Bill could have unintended consequences and create, as has been said, a lucrative field day for lawyers. I do not want to single out any particular lawyer, but I have one in mind. As the noble Lord, Lord Lisvane, put it so well in Committee,

“regulating parliamentary proceedings by statute ... generally ends in some sort of tears”.—[Official Report, 1/3/17; col. 920.]

Other noble Lords have asked whether someone might argue that we need an Act of Parliament to authorise our exit from the European Union and whether the Bill is sufficient for our withdrawal. The requirements of the Miller judgment are entirely fulfilled by the Bill. The Supreme Court ruled that because withdrawal from the EU involves removing a source of domestic law in the UK, and because of the far-reaching effects of the European Communities Act, the authority of primary legislation is needed before the Government can decide to give notice under Article 50. The Supreme Court did not rule that anything further is required to satisfy our constitutional requirements.

Let me now turn to subsection (4) of the new clause proposed by Amendment 3, which was tabled by the noble Baroness, Lady Hayter. I have to say there is something about Labour and Clause 4, but we will put that to one side. The motive behind this subsection was summarised by the noble Lord, Lord Pannick, in Committee and he repeated it today. He said:

“Parliament should decide whether we leave the EU with no agreement or whether we leave the EU with whatever agreement is being offered to us by the EU that the Government think is unacceptable”.—[Official Report, 1/3/17; col. 907-8.]


As he said, proposed new subsection (4) goes beyond what the Government have committed to in the other place and there are several problems with it. The first concerns the Government’s role as negotiator and one of my first principles, which is protecting our national interest. When considering this amendment, we must ask ourselves whether it will strengthen or weaken the Government’s hand at the negotiating table. Remember the wise words of this House’s Select Committee:

“The Government will conduct the negotiations on behalf of the United Kingdom, and, like any negotiator, it will need room to manoeuvre if it is to secure a good outcome”.


Let us not forget the Motion passed by the other place that nothing should be done to undermine the negotiating position of the Government. This proposed new subsection in this amendment would do just that—