Outcome of the European Union Referendum

Baroness Smith of Basildon Excerpts

Tuesday 5th July 2016 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, recently we have seen how strong leadership, good teamwork, thoughtful strategy and real skill can be effective and successful. Unfortunately, it has come not from politics or government but from the Welsh football team, which brought much-needed cheer to us all.

The debate over the next two days is not about the referendum campaign. We are all still seeking to understand what happens next and where we go from here. What alarms me, fuelled by the uncertainty that now affects so many areas of our life, is not only how few answers the Government have but how few questions appear to have been asked beforehand. Your Lordships’ House, with all its knowledge and expertise, which the noble Baroness acknowledged, recognised this and, during the passage of the legislation, asked the Government to prepare not only reports on the impact of Brexit but also contingency plans. The Government declined to do so.

It is therefore impossible to address the uncertainty without recognition of the false promises that were made on such a gigantic scale. The most obvious is the insistence before the vote that £350 million a week would be available to the National Health Service, before that being denied within hours of the polls closing. It is one thing to make promises in good faith, even if they cannot later be fully kept, but it is quite another to tell tall tales knowing that they are complete fiction. Both of those fuelled the current uncertainty.

In Questions last week, the noble and learned Lord, Lord Keen of Elie, was asked about the 3 million EU citizens living in the UK and the UK citizens living in the EU. Unable to offer any reassurances, he merely implied that EU citizens in this country would be used as some kind of bargaining chip when negotiating the rights of British citizens in other EU countries. In this House we all know that is wrong. It is unacceptable and must be resolved urgently. The longer this issue drags on, the more damaging it is.

We have had two prime ministerial Statements on this issue since the result. The fall-out has dominated articles, the airwaves, social media and conversations in our pubs, our shops and around dinner tables up and down the country. Since the result we have less certainty, not more. That is in part because of the way this has been handled by the Government, who apparently have no plan for dealing with the situation.

Having said he would see the negotiations through, the Prime Minister has announced his resignation and said they are a matter for his successor. I feel strongly that those who made their case by relying on information that was known to be false, or made promises they knew they would never be able to keep, have acted without integrity. When the new Prime Minister comes to appoint a Cabinet, it should be uppermost in her mind that commitment to the truth is an essential quality. We all know that we have a difficult road ahead of us and we must all play our part. We have to move forward in a way that is constructive and in the best interests of our country, of British citizens here and abroad, and of those who live and work here. In order to do so we must recognise that there are issues that cannot wait for Mr Cameron’s replacement.

For constitutional issues, absolute legal precision is required. How is the trigger for Article 50 authorised? Is this a matter for Parliament or the Executive? The Prime Minister has said that when to trigger Article 50 is a decision for the new Prime Minister. Is it the view of the Government that the decision lies entirely in her hands? Why would such a fundamental decision not be a matter for Parliament?

There remains a lack of clarity about the process of leaving the EU and when the decision takes effect. During the debate on the Statement, the noble Lord, Lord Butler of Brockwell, to whom I apologise for not telling sooner that I would raise this, asked an extremely important question of the noble Baroness the Leader of the House. He asked for confirmation of whether the UK’s departure from the EU would not be final until the end of the two-year negotiation process, and whether, when the terms of departure were known, it was the duty of the Government to ensure that the public had the opportunity to consider those terms. The noble Baroness did not answer the question, other than to confirm what we already know: that Article 50 will trigger a two-year process and that the current Prime Minister is handing responsibility for implementing it to his successor. But this is an important and serious issue on which a lot of lawyers are already in debate. Having given people a say in initiating the process of withdrawal, should the public wish to debate, discuss and vote on the terms of that withdrawal, will they be able to do so?

On the advice of senior and expert legal opinion, the report of our own EU Select Committee—very well chaired by the noble Lord, Lord Boswell—made the point, in the noble Lord’s words:

“Withdrawal is final only once a withdrawal agreement enters into force, so a member state that had given a notification under Article 50 would be legally empowered to reverse that decision before this stage”.—[Official Report, 15/6/16; col. 1223.]

But in the legal opinion published in an article on the UK Constitutional Law Association website, entitled “Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role”, Nick Barber, Tom Hickman and Jeff King—all highly respected and regarded in the legal world—make it clear that once Article 50 is invoked and the clock starts ticking on the two years of negotiation, if no acceptable withdrawal agreement is reached, membership will cease without agreement. So, we have two heavyweight, serious legal opinions that are completely different. I am not a lawyer and it is not for me to judge which is correct, but surely the Government must clarify exactly how this works before embarking on the journey. That cannot be left to the next Prime Minister. Do the Government have a position that they have agreed with the EU and can they confirm what that is?

The noble Baroness said—I think she did so last week, as well—that the role of Parliament in the negotiations is not yet clear. That has been confirmed across the board by senior Conservatives standing for their party leadership. This is a critical issue. It is not just about allowing time for debates and it is not even about the scrutiny of decisions taken by the Government. These are the most profound, complex negotiations imaginable. We have 40 years of co-operation, 40 years of joint working, and 40 years of legislation to unravel and disentangle.

My colleagues in the other place, Seema Malhotra and Stephen Kinnock, have written to the Prime Minister with six key principles for how that engagement could be taken forward. Have the Government considered new parliamentary structures, such as specialist committees—possibly Joint Committees—for working on the detail of the negotiations and seeking advice from experts? And what consideration has been given to the role to be played by the EU Committees in your Lordships’ House and, as acknowledged by the noble Baroness, their vast expertise? Because as well as the legal process of disengaging and removing ourselves from EU institutions, we will have to examine areas as diverse as environmental protection, rights at work, consumer protection, crime and security, and transport, alongside, of course, the all-important trade discussions, which will include the issue of the single market and freedom of movement.

Then there is the legislation provided for through treaties and directives that will need to be confirmed in British law if we wish to keep it. Do we know how many such laws there are and in which areas? I sincerely hope that someone somewhere in Whitehall is trying to compile what I imagine will be the largest ring binder in history.

That is why the role of Parliament has to be clear. Once Article 50 has been triggered, we cannot afford to wait for six months while the Government start to consider what the processes in Parliament will be. In the Prime Minister’s statement there was more about the role of the devolved institutions and the Civil Service than about Parliament. And what about the role of those institutions and organisations affected—local government, our National Health Service, the police, the TUC, businesses, and the education, science, and arts and sports sectors? So many vital decisions that affect our economic, social and cultural life are now on hold.

When Mr Cameron committed to staying on for the negotiations it was accepted as providing continuity, but now the Conservative Party is having a contest for a new leader, who will be the new Prime Minister. The noble Lord, Lord Dobbs, has said that even he could not have scripted this story, and he invented Francis Urquhart and “House of Cards”. The role of Parliament in the negotiations should be set out by those who wish to be the next Prime Minister. The two main contenders for leadership have starkly opposing views, even on when negotiations should start. On Sunday, Theresa May, appearing on the Peston programme, said they should certainly not begin,

“before the end of the year. We need to establish our own negotiating position”.

She is not just a member of the Cabinet that gave us the referendum; she is the Home Secretary. Was the Cabinet really so unclear when it made that decision about what our position would be? Yesterday, Andrea Leadsom said we should trigger Article 50 and start negotiations straightaway. That is a continuation of the “act now, think later” politics that has created the current instability.

Last week, I asked the noble Baroness the Leader of the House about the Government’s programme for the coming year. She said that nothing has changed, but everything has: this is not business as usual. The legislative programme outlined a little over a month ago in the Queen’s Speech seems to limp on without recognition of the huge amount of new work that needs to be undertaken. Journalists have reported that senior civil servants already feel that Brexit will consume their energies for years to come. It will be the central focus of our policies, our politics and our Government: a massive collective effort from everyone and anyone involved in government that no part of the Civil Service will be able to avoid.

From Whitehall to local government, gaps in funding from the EU will have to be plugged, regulation undone and redone, and networks reworked. It is absolutely right that, as the Prime Minister said, the brightest and the best will be needed for this process, but we needed those people to work on our housing policy, to develop the UK as a centre of new digital and technological advances, and to deal with issues like those in our health service and businesses, and the demographic changes challenging our society. Just think what they could be doing now.

There is not a single sector currently being offered guidance or support from the Government on what the EU result means for them. There are no answers yet for our businesses or public services, who employ thousands of EU citizens. There are no plans and there is no advice for our more deprived areas about how to manage the withdrawal of EU funding. And our educational institutions, environmental bodies and the scientific community require advice, support and, above all, information.

Large employers are already drawing up plans to leave the UK, and the Government’s lack of certainty about EU citizens working for global companies based here is hugely damaging. This is the result of economic uncertainty.

The result of cultural and social uncertainty is uglier still and sharply felt. Since the EU result there has been a 57% rise in hate crimes and four times the national average of hate crime incidents have been reported. For those who invested so much in the ideals of Europe and those on either side of the campaign, the current political enthusiasm and interest should be harnessed for good. We want to see it focused in positive ways, not left blowing in the wind or, worse still, fuelling a greater distrust of politics and politicians. I doubt that the noble Baroness will be able to convince your Lordships’ House that the Government understood all the implications of a leave vote when they offered a referendum, but we now need urgent reassurances on the constitutional position and the role of Parliament. I accept that there are some issues that it is entirely reasonable to leave to the new Prime Minister, but not these.

More than ever, we need to unite around a common purpose of decency and tolerance. This is true for tackling the social uncertainty we are facing, as well as our current economic and political uncertainty. When the country is crying out for direction and leadership, we have a duty to answer. I believe that your Lordships’ House can be part of that solution, and as the Opposition we stand ready to play our part.