European Union (Withdrawal) Bill

Lord Falconer of Thoroton Excerpts

Tuesday 30th January 2018 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, it is an honour to follow the noble Lord, Lord Bridges of Headley. Far from seeming like seven years, it seemed like about six minutes; that was such a good speech. Thank you to the usual channels for making it possible for me to speak in the debate.

I do not think it is for this House to thwart, or seek to thwart, Brexit because we would have preferred a different outcome. There may come a time when opinion manifestly shifts, but now is not the time, this is not the Bill and this House is not the Chamber to make that judgment. Parliament must therefore act to give effect to the referendum. This Bill is necessary in principle to incorporate EU law into our domestic law, as the noble Lord, Lord Bridges, said. It is also necessary to ensure a proper and orderly process is followed in Parliament, to ensure that Parliament agrees the terms of the withdrawal Bill.

The necessity of the Bill is matched only by the disastrous attempt to implement both of those purposes. The Bill provides for no meaningful vote for Parliament on the withdrawal Bill. It gives the Executive unnecessarily wide powers to change our laws in ways that would be regarded as unconstitutional in any other Bill. It leaves the judges to make key decisions that should be made by the legislatures. It uses the Bill as an illegitimate means of amending the devolution settlements. I will say nothing further about the devolution settlement except that I was deeply impressed by the speech of the noble and learned Lord, Lord Hope of Craighead.

In this House, we should be willing to amend the Bill extensively so that the House of Commons may think again. From the speeches we have already heard, there appears to be widespread support on a whole range of issues. The bigger the majorities in this House and the more they are supported by Conservatives, the more likely it is that we will influence the outcome and the more likely it is that post-Brexit Britain will be better. I place particular importance on ensuring that the Bill makes provision for a meaningful vote in Parliament—meaning the Commons. In my book, a meaningful vote means a vote that in effect mandates the Government to take a particular course. There is no point in a vote that can take place only at the end of the process; the consequence of the Commons voting down the deal that the negotiators come back with is that we then have no deal, which is almost the worst outcome we could have. It must be made clear that before any deal is finalised, the Commons should get the opportunity to mandate the direction of the negotiations. By that, I mean that if the Executive wants a Canada-style deal but the Commons wants a Norway-type deal, it must be clear that the Commons view should prevail, not that of the Executive.

With every day that goes by, that becomes a more important consideration in the way the process goes. We have a Prime Minister who is home alone in No. 10, without any allies at all—as far as we can see—not willing to tell anybody what our negotiating stance is. When asked by Chancellor Merkel of Germany what the UK’s position was on the trade negotiations, she replied, “Make me an offer”. I can understand why she would not want to tell anybody what her precise bottom line was, but I would have thought that a point would be reached at some stage where she has to tell the counterparty what she actually wants from them. So we have a Prime Minister who is not able to lead and a Cabinet, some of whom appear to think they are in the film “La La Land”, engaged heavily in either cherry picking or having their cake and eating it, while the others appear to think they are—and it is good to see the noble Lord, Lord Dobbs, in his place—in “House of Cards”, where their only concern is how to manoeuvre in a forthcoming leadership arrangement.

Leadership must come from somewhere, and the only place it can come from is the Commons. If the Government know that they must get the approval of the Commons to any deal or basic framework that is introduced, it will focus their mind and make it clear that they will go to the EU only with a proposal that will get through the Commons. It will also give this country a stance that has credibility in the eyes of the 27. More and more, when you speak to people in the 27 who are engaged in the process, they say, “What is the point of dealing with a Government who have no life left in them?”. If they see that the deal definitely has to be agreed by the Commons, they will think that there is some focus of power that gives political credibility to the deal. It is very important that we look at that point. Clause 9 is the relevant provision in the Bill and it does not provide for a meaningful vote.

I mention only one other point in these short remarks. Everyone agrees that these Henry VIII powers are excessive, unnecessary and unconstitutional. I have heard many suggestions about what we should do and I support many of them, but there are two key points. First, the Bill must be amended in relation to all the Henry VIII powers so that they can be used—we need some of them—only where “necessary to make EU law work in the context of domestic law” and, secondly, where they have “only a technical effect”. Anything wider goes beyond our constitution because it requires the Executive to make significant policy choices through secondary legislation. The corollary of that not being the approach of this Government is that I have no doubt that this House would be much more willing than previously to reject secondary legislation under this Bill to ensure that there is proper use of primary legislation. If the Government choose to change the constitution, so can this House.