European Union (Withdrawal) Bill

Debate between Baroness Ludford and Baroness Altmann

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Baroness Altman (Con)]

My Lords, the 2011 Act was introduced by the elected Chamber for the express purpose of safeguarding major constitutional changes in respect of our relationship with the EU and I support the amendment, to which I have added my name.

The Act, among other matters, provides for a referendum throughout the United Kingdom on any proposed EU treaty or treaty change which would transfer powers from the UK to the EU. Parliament voted for this power in order to protect the sovereignty of the United Kingdom and it is this aspect of our constitutional framework that it is important for the Committee to be mindful of as we negotiate our future relationship with the EU. Surely the proper time for the 2011 Act to be repealed is when we conclude our relationship with the EU. However, the Bill as it stands allows a Minister to repeal it at any time after Royal Assent.

The Conservative Party manifesto in 2010 led to this Act. It is worded not in terms of transfers of power but in terms of the extension of the competence or objectives of the European Union and decrease in the voting power of the United Kingdom. If we go into a transition period, there will be a new form of treaty relationship with the EU, one in which the UK has surrendered powers to the EU. The transition or implementation phase is a subordination of power to the EU 27 and binds us to them with fetters in a new international treaty. I contend that even if one believes wholeheartedly in leaving the EU there are strong grounds not to repeal this Act before we have actually and finally departed. Parliament does not yet have the terms of any deal for Brexit, nor will it have before Royal Assent. I therefore believe that it is vital that the 2011 Act is not repealed in this Bill as that would remove a safeguard which currently exists to protect the United Kingdom and our constitutional position. Parliament enacted that legislation for a specific purpose and Ministers should not be allowed to repeal it at will without proper debate and discussion unless we have already concluded our exit terms.

The other place did not have an opportunity to debate this amendment and it seems to have been missed, or perhaps honourable Members might have assumed that the repeal of the Act would apply only on the date of exit, but it turns out that it could be before that date by ministerial diktat. Given the uncertainty that still surrounds this Bill and the entire Brexit process, as well as the lack of clarity on our future relationship, I urge my noble friend the Minister to agree to this amendment. It safeguards the constitutional position enacted by Parliament in 2011 and maintains the sovereignty of Parliament over the Executive to protect the UK from deleterious treaty change that has not received prior approval from Parliament or the people.

[Baroness Ludford]

My Lords, I am delighted to take part in this the last debate of the Committee stage, and I am grateful to the noble Lord, Lord Adonis, for providing the opportunity for it. The noble Lord, Lord Dykes, took us down memory lane. I am sorry to say that I was deprived of the delights of participation in the debates on the 2011 Bill, as I was exiled to the European Parliament at the time. Obviously, I was denied a most enjoyable opportunity.

There is an arguable case that the 2011 EU Act referendum requirement could apply on the grounds that the standstill transition and/or the future relationship removes powers from the UK relative to the EU. There is much legal argument, as the noble Lord, Lord Adonis, noted, about whether it could apply, and indeed litigation is taking place on that very question. It would therefore be premature to abolish the Act either while the litigation is progressing or before it is clear whether the relationship between the UK and the EU during the standstill transition and beyond that into the future entails a loss of sovereignty such as to trigger the need for a referendum under the Act. The standstill transition most certainly does entail a loss of sovereignty, as we discussed earlier today. We will be mere rule takers who are obliged to obey with no say; that is already clear. It is a clear transfer of power to the EU.

The Government’s emerging Brexit policy, as articulated in the Prime Minister’s Mansion House speech, suggests that their plan is for us to take our instructions on the facts from Brussels for many years to come and indeed into the long-term future, so the Act ought to be retained in the tool-box and abolished by Parliament only as and when it is genuinely no longer needed. Certainly it should not be repealed before exit day or subject only to ministerial regulations.

Members on these Benches make no bones about the fact that a further vote for British citizens on the Brexit deal is justified in its own right. That is our major argument for a further opportunity for the citizens of this country to have their say on Brexit. It would be a wholly different exercise from the 2016 referendum because citizens would be able actually to evaluate what kind of Brexit we are going to get. Is it the kind of Brexit that some have advocated, or is it Brexit in name only? There have been no lesser advocates than Jacob Rees-Mogg for having a two-stage process. In 2011, he said in the context of one or other of the plans to renegotiate our membership:

“Indeed, we could have two referendums. As it happens, it might make more sense to have the second referendum after the renegotiation is completed”.—[Official Report¸ Commons, 24/10/11; col. 108.]


For that, one can substitute the Brexit negotiations.

I recall my noble friend Lord Newby quoting recently that a majority of Conservative voters want to have a referendum on the final Brexit deal. In London, that figure reaches 61% to 25% opposed, and the support for people to have the chance of a vote on the deal is growing all the time. So the major case for that to happen rests, as I say, on substantive rather than procedural grounds.

Until things are clear, it seems to Members on these Benches that there is validity in retaining the possible use of the EU Act, which is about the loss of sovereignty and the transfer of powers to the EU. That is precisely what we are going to be faced with.