Northern Ireland (Executive Formation) Bill

Lord Carlile of Berriew Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[Lord Carlile of Berriew (CB)]

As—I feel I should state—the husband of a former partner in Mishcon de Reya, can I ask the noble Lord, with his distinguished record of parliamentary and public service, how he would like to limit the ambit of judicial review, which is the way in which citizens challenge administrative action that has been called into doubt?

[Lord True]

Whether judicial review should be limited will be a matter for whichever judge the case is put before. My submission is that this is an inappropriate use. The irony when it comes to judicial review is that most JRs of Jeremy Corbyn would come from the Labour Party itself.

Amendment 7 is not a question of allowing Parliament to decide on Brexit. Parliament asked the people to decide the question; the people decided. Parliament voted to invoke Article 50. This Parliament, in this very Session, voted by overwhelming majorities to leave the EU. Parliament has set the law of the land that we should leave on 31 October. It is not a question of anyone stopping Parliament deciding; Parliament has already decided.

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[Lord Forsyth of Drumlean]

I do not think for a moment that he is, and I do not think that the House of Commons is able to challenge our leaving on 31 October unless it and this House pass the necessary legislation to do so. If this House is worried about the timetable and the opportunity to do so, that is a much bigger problem than the timetable for any Prorogation.

[Lord Carlile of Berriew]

My Lords, it is always a pleasure to follow the noble Lord, Lord Forsyth, who is one of the most persuasive debaters in this House, as he was in the other place. However, I am concerned by what he said a moment or two ago. He seems to have forgotten that we do not have an executive form of government in this country. If it is Mr Johnson who becomes Prime Minister, that is what he becomes—Prime Minister, not president of the United Kingdom. The role of the Prime Minister is surely to face Parliament, the House of Commons in particular, persuade it if he can and serve it if he retains its confidence. If he loses its confidence, it becomes his duty to resign, which could happen more quickly than some, particularly Mr Johnson, think.

[Lord Forsyth of Drumlean]

If I may respond to that point, what the noble Lord says is absolutely right, but the Prime Minister also has a duty to obey the law. The law is that we are leaving on 31 October. If Parliament does not like what the Prime Minister does, it can pass a Motion of no confidence, and then we will have a general election. If we end up with a general election in those circumstances, I am not sure the noble Lord will get what he wished for.

[Lord Carlile of Berriew]

The noble Lord chided the number of lawyers taking part in this debate. I have certainly practised law, but, if I may say so, and with great respect, what he has just said shows how little he understands the law of which he has complained.

To turn back to the thread of what I was going to say, I have spent 34 of the past 36 years of my life as a Member of one and then the other of these two Houses of Parliament. I listened to the eloquence of my noble friend Lord Anderson with great attention. I must tell him that I am extremely reluctant to vote for his amendment because, as a parliamentarian of 34 years, I do not like to see the rules of the two Houses of one of the most distinguished Parliaments in the world used as part of a parlour game—as devices.

But then I listened to the noble Lord, Lord True, and, with great respect to him, I realised that the true democrats in this debate are the noble and learned Lord, Lord Goldsmith, the noble Lords, Lord Anderson and Lord Newby, and the noble Viscount Lord Hailsham, who tabled this amendment. My reluctance is overcome by my wishing, as they do, to sustain the law and sustain—I use that word advisedly because I am not ashamed of using it—the traditions and democratic role of this Parliament, including the role played by your Lordships’ House.

I fear that what is being advised to the Committee by the noble Lord, Lord True, and what appears to be in the mind of Boris Johnson, is to drive a carthorse through parliamentary procedure and simply leaves the debris as an acceptable part of what occurs. It shows that they do not understand the fundamental constitutional nature of the referendum and the process that followed it. It was not the duty of this Parliament simply to leave the European Union just like that. It was the responsibility of this Parliament, having been advised by the population in the referendum to attempt to leave the European Union in a way that did not destroy the economy or the political structure of this country. In my view, that requires the attention of Parliament to the very end, not the frustration of the law.

If I have to, I will reluctantly vote for the amendment, but it could all be resolved so simply. All Mr Johnson has to do is to pick up the telephone—with a witness or maybe several witnesses present, I hasten to add—and say to the noble Lord on the Front Bench, “I have been very badly misunderstood. I give a clear undertaking that I will not prorogue Parliament so as to frustrate the very purpose for which it exists”. Then I would not have to vote reluctantly for something that I do not really like.

[Lord Adonis (Lab)]

My Lords, the critical issue, which the noble Lord, Lord Forsyth, would not answer in my noble friend’s question, is whether he actually favours Prorogation. It is important that we get to the substance of the issue, which is very clear. Is it a responsible or legal act, in the view of the two Houses of Parliament, to ban Parliament from meeting to discuss the affairs of the nation in September and October? That has never happened before. The noble Lord, Lord True, said that there have been Prorogations in October. But there is a long-established convention to this effect. Prorogations are for a few days before the new Session of Parliament. The Library has produced a note that lists them all. They are of five days, six days or three days. In one case, it overlapped with the Whitsun Recess and was for 20 days. They have been of 12 days, seven days and three days—always for the purpose of preparing for a new Session of Parliament.

The noble Lord referred to the supposed controversy of 1948. There was no controversy in 1948. The two Prorogations to create the additional Session required by the Parliament Act 1911 lasted one day each. There was no controversy about the Prorogation. Of course, as the noble Lord, Lord Forsyth, said, there was controversy about the nationalisation of iron and steel. That was because the Conservatives did not want it and Labour did. It had been in the Labour manifesto and Labour sought to implement it. But there was no controversy about the terms of the Parliament Act 1911.

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Clause 9 overstates the obligation that the UK is under, and I believe that noble lords and noble Baronesses in this Committee have overstated that obligation too. There is no international obligation to introduce abortion in Northern Ireland; rather, the obligation, both moral and based on the principle of devolution, is quite the opposite.

[Lord Carlile of Berriew]

My Lords, I have listened to the debate with growing concern and anxiety about its tone and about what seems to be a very poor understanding of the constitutional issues that arise.

We ought to remind ourselves that we have been talking about moral issues that affect young women and young men of an age that does not exist among the membership of this House. Those of us who are the fathers and grandfathers and mothers and grandmothers of young people ought to bear that in mind. We have listened—I do not want to offend anyone but I will take the risk—to a lot of anecdotally based, at best, moral relativism, which to those who eventually come to read what has happened in this House today, particularly the young, will view as uninformed, if possibly well-intentioned, and with disdain.

The only evidence that I can rely upon is the evidence that I see with my own eyes and in my own experience. I can tell your Lordships that among my five daughters and step-daughters and my nine grandsons and grand- daughters, I have one daughter who is in a very happy gay marriage to our beloved daughter-in-law and another daughter who was in a gay civil partnership and is now married to a man, as a result of which we have a beloved former daughter-in-law and a beloved son-in-law. That is what real life is like. When you look at what happens in real families in these issues, without pontificating about what they should be thinking or, even worse, thinking for them, you see things in a much more realistic light.

I turn to the Bill and the constitutional issues. I repeat what was said by my noble and learned friend Lord Judge about Clause 3(6), which expresses that these changes are,

“subject to a sunset clause to respect devolution”.

The Bill seeks to do almost exactly what those who have proposed these amendments are asking for; it just does it in a coherent and logical way. I have spent a great deal of time in Northern Ireland, looking at the Good Friday agreement and working as Independent Reviewer of Terrorism Legislation. If you asked the good people of Northern Ireland what they thought about these issues, their answer would be, “Well, we’re not terribly interested in these issues as a constitutional matter, although we have opinions. What these wretched politicians should get on with is governing Northern Ireland by devolved government, which they are choosing not to do at the present time”. Devolution is not a right but a choice. The politicians of Northern Ireland have chosen not to govern their country through devolution at the present time.

So what happens to the political process in Northern Ireland? Does it come to stasis? Does it come to a standstill because the politicians cannot sit down in a locked room for a few days and realise that their duty is to govern that very important part of the United Kingdom? That is the choice they have made so far. When that choice has been made, it is constitutionally the duty of the Parliament in which we sit to determine all the issues that a devolved Government would consider, including these enormous social issues. Northern Ireland’s constitutional settlement, which produced the miraculous results of the Good Friday agreement, which I admire without a single word of demur, sets out and accepts that when there is no government by devolution, there is government from this Parliament. In my view, this Parliament is perfectly entitled, and under a duty, to take the decisions set before it this evening.

[Baroness Smith of Basildon]

My Lords, this has been a long debate. When the noble Lord, Lord Cormack, spoke at the beginning, he said this was sensitive, delicate territory. He is right. I have close friends on both sides of the argument and I resent it when people abuse the integrity of those who have a different view. All views should be respected in this House. The tone in which some comments have been made does not reflect well on this House. That point was made by the noble Baroness.

Coming back to the comments of the noble and learned Lord, Lord Judge, about what we are debating tonight, which were moderate as always, I have not written a speech like some noble Lords, but I have a couple of comments. I think one of our colleagues from the DUP described this as a process which was not procedurally correct—