Article 50 (Constitution Committee Report)

Earl of Sandwich Excerpts

Tuesday 22nd November 2016 Lords Chamber

[The Earl of Sandwich (CB)]

My Lords, I follow much of what the noble Lord, Lord Bowness, has just said, especially about what the countries of eastern Europe are saying about Brexit. I declare an interest as a remainer and a referendum unbeliever. However, I am not with those who wish to rerun the referendum, and I joined this debate in the hope that we will move swiftly towards reconciliation with the EU, albeit as a trading partner or associate member. Of course, this will be with the benefit of advice from our European committees, as has been well established today.

The important political issue before us is quite separate from the legal issue, which has been the subject of the case made in the High Court. It is the rights of individuals, the legislative supremacy of Parliament and the limits of executive power, and I will return to that.

The Government’s appeal will be heard in due course by the Supreme Court, which in this case will also act as guardian of our constitution. Quite separate from this point of constitutional law is another question, that of representation: whether by promoting the referendum as a means of settling such a crucial issue we have—as the noble Lord, Lord Higgins, was saying—impaired our present system of sending Members of Parliament to Westminster to represent us. The Minister may not be briefed to answer that.

This debate concerns the role of Parliament. We have already heard a strong case for the involvement of both Houses in the Government’s plans, if and when we see them. The specific recommendations of the EU Committee are divided into four phases. Of these, we should discuss the first two stages because they are imminent. I wish that the committee had spent more time on the preparatory phases, on which I will focus.

The Government complain that they cannot provide a running commentary, and the committee accepts that. What the Government can and should provide is an outline of their intentions, a point my noble friend Lord Kerr made more strongly than any of us can. We need a framework. As the Constitution Committee says, Parliament should play a central role. Parliament is not an elite, as sometimes portrayed in parts of the media, but an institution—my noble friend Lord Bilimoria was strong on this—set up to represent the people. It is the successor to that which stood up to the Crown, notably in 1642, and in 1688, 1832 and successive reforms since. Brexit, while in the vernacular describing a legitimate populist movement, cannot replace the system we already have, one tried for centuries through our largely unwritten and yet powerful constitution. The noble Lord, Lord Hunt, made these points, too.

We are not mandated by the referendum, which was an indicator of public support for a single idea. That idea is still in a vacuum. It will have no shape or form until first the Government and then Parliament give it such through discussion and finally legislation. The Government seem to rest their case on the referendum and an “in” or “out” decision, but they know that leaving the EU cannot be so simple, involving as it does years of disengagement. Look at trade: all the arrangements made over 40 years for 44% of our exports and more than half our imports must now be replaced by new agreements. Where will we find the experts to carry this out? What status for the UK is proposed? Will it be that of the EEA, Norway or some associated status? Will a customs union or single market be willing to take us?

Look at devolution, another aspect mentioned at the beginning of the debate, and its EU counterpart of subsidiarity. The whole point of these treaty changes was to enable regions and EU members themselves to shed some powers outwards. EU law has therefore become enmeshed in sub-national and regional law, and these strands cannot simply be pulled apart. There are also EU laws and institutions already incorporated into UK law. On crime prevention, can we look forward to the same co-operation with the EU as before?

These things may seem obvious but surely the public should be told about them. Not even the keenest Brexiter will argue that we can simply float offshore when there are vital issues of defence, security and immigration at stake. Recently we opted back into measures like the European arrest warrant, Europol and Eurojust. That was a Conservative Government recognising the need to co-operate on these issues. How can those instruments be replaced?

This surely leads to the question of red lines and what Parliament should discuss now instead of awaiting the pleasure of the Executive. Now that the Prime Minister and her Cabinet have had months to think about this, why can they not come up with broad principles in a Green Paper, as mentioned by my noble friend Lord Kerr? I do not foresee any blocking by Parliament—nobody has mentioned it—which is what the Brexit media say the Government fear. I would like to see engagement at stage one. Parliament needs to see what is broadly proposed and can be discussed with MPs and Peers before Article 50 is triggered. This could surely be done between January and March.

Some issues governed by EU law cannot even wait for discussion, as mentioned already. The Government should announce them as soon as possible. They are issues such as the status of EU citizens here and our own citizens in Europe, mentioned by the noble Lord, Lord MacGregor. Pressing issues of funding affect universities—mentioned by my noble friend Lord Bilimoria—and rural areas, for which the Government have provided too little comfort so far. These questions need to be decided now, as has been argued repeatedly.

In this revising Chamber, we offer not a decision but a second opinion based on our expertise and experience. That is universally recognised and in a sense the Government are encouraging us to offer that—but it cannot be in a vacuum. Having reread the recent Brexit Statement, I wonder whether the Government took the point that it is not just time for debates of our own reports that we seek but—the Minister might like to focus on this—the application of the wisdom in those reports to the Government’s own plans and intentions. Surely the least the Minister will say today is that the Government intend to have an outline of these plans in time for us to debate them before next March.

Finally, the issue many of us are concerned about is not Article 50 but executive power. Parliament has continually sought to control the Executive and, once again, the Executive assume that they alone have the right to direct the course this country is to take. Parliament could again be presented with a fait accompli, albeit dressed up in the appearance of a choice. We must face that. We are currently on a fault line, running across America and Europe, between those who fear centralised power, uncontrolled migration and liberal economics, and those who wish to defend shared alliances, universal human rights and free movement of goods and people. This is a dangerous moment in history that cannot be left to a one-off decision of the people. It should be openly discussed in our Parliament before we move towards what I accept is inevitable change.