European Union (Notification of Withdrawal) Bill

Lord Ashdown of Norton-sub-Hamdon Excerpts

Report stage (Hansard - continued): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Viscount Hailsham]

My Lords, my noble friend has made a very serious point, which enables me to cut directly to the chase, to one of the points I was going to make. It is possible that my noble friend Lord Hill is right about this. There is sometimes a price to be paid for democracy. Indeed, that is the argument that underpins many of the assertions made by the Brexiteers. They argue that, yes, there may be a cost involved in withdrawal but it is more than compensated for by the recovery of democratic control. That argument also applies to the process of negotiation.

[Lord Ashdown of Norton-sub-Hamdon (LD)]

In answer to that very question, I ask the noble Viscount to cast his mind back to 1991, when he and I were both in the other place. He was a member of the Government, as I recall. On that occasion the then Prime Minister, John Major, brought the Maastricht treaty to the House for its approval twice; first, in seeking a mandate for negotiation; and, secondly, afterwards in seeking the House’s approval for what had been negotiated. If that did not weaken his Government at the time, why should this weaken this one?

[Viscount Hailsham]

My Lords, I entirely agree with what the noble Lord has said. Of course, it is also consistent with the principles that underpin Section 20 of the 2010 Act, because that requires all treaties to be ratified by Parliament.

If I might make a little progress, the Government have in the course of the Bill made a very large number of concessions. It would be churlish not to welcome that fact. Indeed, I rather hope for more. But I agree with the views expressed by the noble Baroness, Lady Kennedy, and the noble Lord, Lord Pannick. It is better by far that the assurances and concessions of Ministers be expressed in statutory language because, as the noble Lord, Lord Oates, has reminded the House, political circumstances may change. Ministers may move on; Governments may fall. Statutory language is always to be preferred to the comforting words of Ministers.

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[The Parliamentary Under-Secretary of State, Department for Exiting the European Union (Lord Bridges of Headley) (Con)]

My Lords, this debate has shown this House at its very best, and I thank all noble Lords who have spoken. Forty-four, I think, hours of debate on these 137 words show how sprightly your Lordships are.

Before I discuss the amendments, I shall briefly set out three core principles governing our approach to this country’s withdrawal from the European Union. First, the Government are determined to honour and deliver on the result of the referendum: the United Kingdom is going to leave the European Union. Secondly, everything we do will be determined by our national interest, and we shall do nothing to undermine it. Thirdly, parliamentary sovereignty is key. Parliament will have a role in scrutinising the Government throughout the negotiations and in making decisions, a point to which I will return.

Given this, I turn now to the rationale and motives behind the amendments tabled by my noble friend Lord Cormack, the noble Baroness, Lady Hayter, and the noble Lord, Lord Pannick. One basic intent is that the Government should be legally bound to deliver on their commitment to give Parliament a vote on the agreement. That government commitment is crystal clear, and I shall repeat it: the commitment is to bring forward a Motion on the final agreement to be approved by both Houses of Parliament before it is concluded. We expect and intend that this will happen before the European Parliament debates and votes on the final agreement.

The need for my noble friend Lord Cormack’s amendment, and the first three proposed new subsections of the amendment tabled by the noble Baroness, Lady Hayter, and the noble Lord, Lord Pannick, really comes down to a judgment about whether Ministers and the Government can be trusted and to considering the consequences if the Government were not to deliver on this commitment. All I can say is that of course we will honour our promise and Parliament will hold the Government to account for doing so. Let me go further and echo a point very well made by my noble friend Lord Howard: at any point throughout this process, Parliament will be able to express its view. Given this, the other place was happy with this state of affairs. It considered and rejected similar amendments.

Furthermore, Parliament will not be providing scrutiny in the dark. After all, this Government have committed to keeping the UK Parliament at least as well informed as the European Parliament as negotiations progress. The Government will continue to be accountable to Parliament via regular Statements—which I so enjoy—debates and Select Committee appearances. Crucially, Parliament’s role will not just be one of scrutiny. It will make decisions and shape the legislation required to give effect to our withdrawal from the European Union: the great repeal Bill to repeal the ECA and the legislation that will be required for significant policy changes, such as on immigration and customs. With the greatest of respect to my noble friend Lord Cormack and the noble Baroness, Lady Hayter, any amendment that attempts to transcribe the Government’s commitment into legislation is unnecessary. More than being unnecessary, an amendment that sought to put this commitment in the Bill could have unintended consequences and create, as has been said, a lucrative field day for lawyers. I do not want to single out any particular lawyer, but I have one in mind. As the noble Lord, Lord Lisvane, put it so well in Committee,

“regulating parliamentary proceedings by statute ... generally ends in some sort of tears”.—[Official Report, 1/3/17; col. 920.]

Other noble Lords have asked whether someone might argue that we need an Act of Parliament to authorise our exit from the European Union and whether the Bill is sufficient for our withdrawal. The requirements of the Miller judgment are entirely fulfilled by the Bill. The Supreme Court ruled that because withdrawal from the EU involves removing a source of domestic law in the UK, and because of the far-reaching effects of the European Communities Act, the authority of primary legislation is needed before the Government can decide to give notice under Article 50. The Supreme Court did not rule that anything further is required to satisfy our constitutional requirements.

Let me now turn to subsection (4) of the new clause proposed by Amendment 3, which was tabled by the noble Baroness, Lady Hayter. I have to say there is something about Labour and Clause 4, but we will put that to one side. The motive behind this subsection was summarised by the noble Lord, Lord Pannick, in Committee and he repeated it today. He said:

“Parliament should decide whether we leave the EU with no agreement or whether we leave the EU with whatever agreement is being offered to us by the EU that the Government think is unacceptable”.—[Official Report, 1/3/17; col. 907-8.]


As he said, proposed new subsection (4) goes beyond what the Government have committed to in the other place and there are several problems with it. The first concerns the Government’s role as negotiator and one of my first principles, which is protecting our national interest. When considering this amendment, we must ask ourselves whether it will strengthen or weaken the Government’s hand at the negotiating table. Remember the wise words of this House’s Select Committee:

“The Government will conduct the negotiations on behalf of the United Kingdom, and, like any negotiator, it will need room to manoeuvre if it is to secure a good outcome”.


Let us not forget the Motion passed by the other place that nothing should be done to undermine the negotiating position of the Government. This proposed new subsection in this amendment would do just that—

[Lord Ashdown of Norton-sub-Hamdon]

My Lords—

[Lord Bridges of Headley]

Let me continue please. Denying the Prime Minister the ability to walk away from the negotiating table, as proposed new subsection (4) would do, would only incentivise the European Union to offer us a bad deal. The European Union is bound to see that there are a number of people in Parliament who think that any deal is better than no deal. We heard some noble Lords argue just now that to go to WTO terms would be bad for Britain. Therefore, this amendment simply makes the negotiations much harder from day one for the Prime Minister, since it increases the incentive for the European Union to offer nothing but a bad deal.

Some have argued that the proposed clause would strengthen the Government’s hand. They say that this is like a CEO saying, “My board will not agree to that deal”. However, this analogy is not correct in this case. Most boards would say, “We want to do a deal, but not at any price”. In this case, a number of parliamentarians are saying, “Any deal is better than no deal”. This approach would therefore weaken the Government’s position.

However, that is not the only problem with this amendment. The amendment is clear—

[Lord Ashdown of Norton-sub-Hamdon]

My Lords—

[Lord Bridges of Headley]

Forgive me. The amendment is clear on one thing, and one thing only: namely, that if Parliament agrees with the Prime Minister that no deal is better than the terms on offer, the United Kingdom will leave the European Union without a deal. However, it is unclear—totally unclear—what happens if the House says no to walking away. As the noble and learned Lord, Lord Phillips of Worth Matravers, and my noble friend Lord Forsyth asked, what path must the Prime Minister then take? Is she to accept the terms on offer? Is she being told to secure a better deal—and, if so, what would happen if that cannot be achieved before the end of the two-year period? Alternatively, in the silence of the amendment on this matter, is she to find a means to remain a member of the European Union?

We do not know the answer to any of these questions. My noble friend Lord Forsyth was entirely right to highlight this omission. The Government cannot possibly accept an amendment that is so unclear on an issue of this importance: what the Prime Minister is to do if Parliament votes against leaving with no agreement.

With regard to that risk, let us remember the first principle that I stated: the Government are intent on delivering on the result of the referendum as a matter of firm policy. I almost turn to the noble Lord, Lord Kerr, to repeat the words after me. As a matter of firm policy, a notification under Article 50 will not be revoked. Therefore, for the Government, any question of whether notification under Article 50 is legally reversible is irrelevant. The parliamentary vote that we have promised will be very meaningful: we will leave with a deal or we will leave without a deal. That is the choice on offer. However, the choice offered by this amendment by proposed subsection (4), is unclear.

I will end by repeating the first line of the White Paper:

“We do not approach these negotiations expecting failure, but anticipating success”.


Our clear intent, as I said, is to negotiate a new partnership with the European Union that will enable us and Europe to continue to trade freely together and to co-operate and collaborate where it is in our interests. Parliament will decide on whether to accept or reject the agreement. The purpose of this simple Bill is to deliver on the result of the referendum and to leave the EU. These amendments are unnecessary. They are damaging to our national interest, they would create uncertainty and they may be used by some to block the wish of the British people to leave the European Union. For these reasons, I hope that the noble Lord will withdraw his amendment.