Article 50 (Constitution Committee Report)

Baroness Ludford Excerpts

Tuesday 22nd November 2016 Lords Chamber

[Baroness Ludford (LD)]

My Lords, in commending both reports and the remarks of the noble Lords, Lord Lang and Lord Boswell, I note that it is important to remember that what we are talking about is the UK’s own domestic arrangements and constitutional requirements in the Article 50 withdrawal process. We determine these ourselves, not by any instruction from Brussels. Even if the Luxembourg court got involved via a reference from our own Supreme Court, or indeed from a national court in another member state, that would be purely to answer a point of EU law—“Is Article 50 legally revocable?”—though I happen to believe that politics may well overtake that question eventually; it would not be to address, let alone to decide, our own domestic arrangements. I hope, though I say this more in hope than expectation, that the press will remember that.

Both reports were written before the High Court judgment and do not depend on it. As the Constitution Committee report notes, it is the political and constitutional significance of decisions relating to the UK’s membership of the EU that makes the involvement of both Houses absolutely justified. The committee also notes, as did the noble Lords, Lord Higgins, Lord Bilimoria and Lord Balfe, among others, that the Government ought to want to work with Parliament in the spirit of co-operation—indeed, perhaps to share the burden of responsibility. The Constitution Committee was in fact very clear and strong in its language:

“It would be constitutionally inappropriate … for the Executive to act on an advisory referendum without … parliamentary approval—particularly one with such significant long-term consequences”.

Those are very strong words.

Between them, the two committees amplify that strong argument. First, enacting the result of the referendum should require at least the same level of parliamentary involvement as a decision to authorise military deployment. If that point has been conceded in the last few years, why are we even talking about it now? Secondly, Parliament would have to legislate to implement any relationship with the EU, so the Executive must ensure that they have proper parliamentary approval for the process leading up to that new relationship. Thirdly, one consequence of Brexit is that many key aspects of domestic policy could potentially be determined not by Parliament but in negotiations conducted behind closed doors, which is invidious. The Brexit Secretary has said that the Government are determined,

“to build national consensus around our approach”.—[Official Report, Commons, 5/9/16; col. 38.]

How better to do that than in Parliament?

We on these Benches entirely agree with the thrust of the two reports that Parliament must be involved in all the stages—I cannot now remember if there are three or four—of the Brexit process. “Taking back control”, as my noble friend Lord Beith said, does not mean handing control to the Executive. Parliament’s demand is to be involved in setting the strategy, not, as Mr Davis has claimed, in micromanaging to deprive the Government of room for manoeuvre or indeed, as the Chancellor said in an interview at the weekend, an involvement in the tactics of the negotiations. It is the overall picture that Parliament needs to be involved in.

Parliament adds value to the process of the Brexit negotiations. We are not to be regarded as some pesky nuisance. Our active scrutiny can assist the Government in a proactive way to achieve a successful outcome. All we need to do is look around on these Benches at the amount of expertise. On options, risks and opportunities, we are expecting 20 or so short reports on the impact of Brexit from the EU Select Committee under the noble Lord, Lord Boswell, and I believe they will provide a wealth of material. Far from undermining the Government’s negotiating stance, parliamentary approval of the negotiating guidelines can strengthen the Government’s hand, as several noble Lords have mentioned, when dealing with their partners in the negotiations. Indeed, we can protect the Government from the wild and irresponsible hard Brexiteers in their own party. One senior commentator has remarked that,

“The expectation that May will be pushed around by the Tory party right wing explains some of this pessimism”,

about the possible breakdown of Article 50 talks and Britain crashing out into a hard WTO-only exit, which of course would be disastrous for the economy, business, jobs and citizens.

So the Government are not respecting the will of the people—that much used and abused mantra. If they were, they would be planning a referendum on the outcome of the negotiations, because you cannot respect the will of the people if you do not allow them a say in the final outcome. They are not seeking a national consensus. All they seem to be doing is obeying the will of the Tory right-wing and UKIP, and that is not the same thing at all.

My noble friend Lady Suttie dealt with the refusal to give information on the Brexit terms on the basis of the “no running commentary” excuse. She cited the precedents of previous treaties. The noble Lord, Lord Hannay, cited the example of the justice and home affairs mass opt-in. There is plenty of precedent for keeping Parliament informed. Indeed, Ministers are doing plenty of whispering to their friends in the press. It is quite insulting to be told that Parliament, uniquely, cannot be kept informed.

I fear that it gives the game away on the real reason for the Government’s doctrine of unripe time that there is in fact no political consensus in government; it is really about time that there was. Many of us are weary of the Prime Minister talking in “Brexit means Brexit”-type riddles, which is becoming as demeaning to the Government as it is disrespectful to Parliament and the people.

The Secretary of State for Exiting the EU gave a pledge that we would not be second-class to MEPs. Indeed, my noble friend Lord Teverson provoked that promise. This means, as the report tells us, access to all the negotiating documents and at every stage of the negotiations, giving feedback and being listened to and responded to through a sort of flexible scrutiny reserve process. It means being told the response to Parliament’s concerns. Of course, it means safeguarding confidential information.

The reality so far is very different. The Government have already taken a number of steps without any reference to Parliament, leaving us to read the tea leaves. In no particular order, we have had the following. The noble Lord, Lord Hill, resigned his Commissioner post, so we lost the financial services portfolio. The Government renounced the presidency slot in 2017—perhaps inevitably, but it was done without any reference to Parliament. The Government said that they are giving priority to curbs on free movement of people, even if it means leaving the single market; but they are leaving UK and other EU nationals who have taken advantage of freedom of movement rights in total limbo, which is shameful. The Government have said that they want us to be outside the jurisdiction of the Court of Justice of the European Union, which will be very problematic for future relations. They have announced the fact but no details of a deal that satisfies the car company Nissan, which begs the question of whether that could fall foul of state aid rules and whether some special inclusion in the customs union for cars is expected.

All this has happened without Parliament being given any chance to influence the Government’s stance. Finally, we have had signalling of a slashing of corporation tax which, along with the rhetoric of some in their party, makes some people fear that the Government are set to make the UK the Singapore of the north Atlantic, which could make recognition and equivalence regimes much more difficult to achieve. The Government have also opted into the new Europol regulation, which is extremely good news, but begs the question about future security co-operation, which is vital.

I conclude by asking for the Prime Minister, instead of giving drip-drip to the press and making inscrutable utterances, to articulate her choices. Parliament, with or without a Supreme Court judgment, must be fully involved in the pursuance of them. Taking back control means no less.