Further Discussions with the European Union under Article 50 of the Treaty on European Union

Lord Anderson of Ipswich Excerpts

Wednesday 27th February 2019 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, as the last speaker before the winding up speeches, I should have liked to offer your Lordships a peroration, but could not hope to equal the force or the humanity of the noble Lord, Lord Campbell of Pittenweem, and the noble Baroness, Lady Wheatcroft, who have spoken so eloquently, and with whom I agree so completely that the vote to leave the EU was a historic and very sad mistake, significantly compounded by decisions made since.

To go to the other extreme, I offer instead a short endnote—a little dry, perhaps, but I hope of a nature to pique the professional interest of the noble and learned Lord, Lord Keen, and to coax a response out of him when he closes this debate. The three-month extension to be debated on 14 March, if previous votes so require, would fall well short of the minimum 22 weeks that the UCL Constitution Unit and others have suggested would be necessary for a referendum. In practice, and allowing for the time necessary to give effect to the result, this would require an extension at least until the end of the year or, if the advice of the noble Viscount, Lord Hailsham, is followed, deep into the middle of the next decade. The Prime Minister was at pains yesterday to resist the possibility of a long extension on the basis that an initial extension beyond the end of June would require the UK to take part in the European Parliament elections, and that a supplementary extension, entered into after the end of June, would be “extremely difficult” if we had not taken part in them.

I invite the Minister to agree with me that when there is a will, there is a way. Does he agree that this country could take part in the European Parliament elections if we are still a member state at that point? Indeed, that is expressly contemplated by the Council decision of 2018 that establishes the composition of the Parliament, and the Electoral Commission has already set aside a budget for it. Yes, some might find an election in those circumstances a little odd. The noble Lord, Lord Grocott, right at the start of this debate, described it as indefensible, but it is democratic. Why should it be any more odd or less defensible than continuing to participate in the other institutions of the European Union—the Council, the Commission and the court—as we shall do for as long we are a member, as provided for in the treaties?

Then the legal service of the European Parliament, in an opinion of 7 September 2017 that received some publicity at the time, confirmed that the European Parliament would be validly constituted, and its legislation valid, even in the event of a failure by the UK to organise elections. That is unsurprising, one might think, since if laws were not valid in those circumstances, any member state could hold the whole EU legislative process hostage by refusing to hold elections. Does the Minister agree with that opinion?

I do not underestimate the difficulties that would have to be surmounted before any further referendum could be held, not least the definition of the franchise, the choice of the question or questions, and the measures that would be needed to prevent the serious malpractice, or worse, that attended the last one. We will know in a couple of weeks whether there is the necessary public or political will to start down that road. But I suggest that the time needed for a referendum will not be denied to us by the electoral law of the EU, and I ask the Minister to confirm that narrow but important point.