European Union (Withdrawal) Bill

Lord Faulks Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[Lord Howarth of Newport]

There is a great deal of national grumpiness, and when the British people get grumpy, they are a force to be reckoned with. The dispossessed rejected the status quo and were unimpressed by Project Fear, and my advice to my noble friends is to stop digging.

The false simplifications, the distortions and the mendacities on both sides in the referendum campaign were a degradation of our politics. I believe that the nation’s heart would sink at the thought of another bout of all of that. The second referendum would inevitably intensify the divisions and the bitterness of the first one. There would, I fear, be ugly episodes. The losers would demand a third referendum, whatever the noble Lords, Lord Newby and Lord Wigley, say.

We are not immune in this country to the neo-fascism that has so deeply, disturbingly possessed swathes of central and eastern Europe. We are fortunate that the most sinister figure to present himself as a leader of the far right in this country was Nigel Farage. If we were to have a second referendum, I greatly fear that a far more charismatic and sinister leader might emerge on the far right.

In any case, referendums are alien to our constitution, and the issues that would fall to be decided at a referendum, if and when the people were asked to judge the terms of the deal the Government had negotiated, would be immensely complex technical issues about trade, financial services, immigration, security, environmental protection and so forth. These complex issues should be determined by indirect democracy, by the intricate processes of parliamentary government, not by the crude instrument of a plebiscite.

I am always a little unsure of myself when I find myself disagreeing with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, because I have huge respect for his judgment. He calls for one last referendum. But the Constitutional Committee of your Lordships’ House advised us that referendums should occur only rarely, but were appropriate when a major constitutional issue needed to be decided. That is what happened in 2016. There was a referendum on the great constitutional issue of whether we should leave the European Union and reclaim the sovereignty that we had lent to it. That great constitutional issue has been decided. Strictly, of course, as noble Lords have mentioned, in legal terms that particular referendum was advisory, but politically it was binding.

Noble Lords may recollect this document. The Government sent it to every household in the country. It was sent to 27 million households and cost £9.3 million of taxpayers’ money. In it the Government said:

“The referendum on Thursday, 23 June is your chance to decide if we should remain in or leave the European Union … This is your decision. The government will implement what you decide”.


We have to live with the results of our democratic choices. If Parliament and the Government were to renege on the commitment made by the Government in that document, I believe there would be a very serious crisis in our country.

Great political turning points in the national life are inevitably uncomfortable for the establishment. The political genius of the British establishment has hitherto been to accommodate itself, however reluctantly, to big, uncomfortable changes: Catholic emancipation, the Great Reform Act 1832, repeal of the Corn Laws, death duties, reform of the House of Lords in 1911, the welfare state and the loss of empire. The latest such challenge is leaving the European Union. Your Lordships’ House and the people who take the big decisions in government and public administration on behalf of the people should now be similarly prudent, constructive and magnanimous. We should not waste our energy in seeking to overthrow the democratic decision of the British people to leave a European Union that is discredited in the eyes of the majority and perceived as failing because of mass youth unemployment, deep inequalities and its undemocratic nature.

It is for the left to rediscover the generous patriotism of JB Priestley and George Orwell. Agitating for a second referendum is displacement activity. The real challenge is to revive the centre left and to get beyond the intellectual and political bankruptcy of social democracy in the period since 2008 and the global financial crisis. But if all the centre can now offer, 10 years after that moment, is to remain in Europe, voters will say, “These politicians don’t understand us, they don’t respect us and they have nothing useful to offer us”, and they will move to the extremes. If the respectable politicians do not engage with voters on these matters of the deepest possible concern then disreputable politicians will take our place. I heard a former Commissioner of the European Union on the “Today” programme criticise his former colleagues, saying that those in Brussels tend to live in something of a bubble. I hope that will not be said of your Lordships’ House.

[Lord Faulks (Con)]

My Lords, I will not go into the virtues of remaining in the European Union or leaving it, but simply concentrate on the amendment. I was one of the Minsters who had the privilege of taking the referendum Bill through your Lordships’ House. As many noble Lords will recall, there were debates about the extent of the franchise, among other matters, but there was no suggestion by any of the major parties of a threshold, let alone a second referendum. One can only imagine the response there would have been following the results if it had been the other way around and there was an attempt then to have a further referendum—surely what is sauce for the goose.

It must be remembered that the Bill went through Parliament when a general election was looming. Any party, or combination of parties, could have formed the next Government. Surely it was incumbent on each party to make clear that it would not honour the result of the referendum without a further vote or the option of one.

There are a number of uncertainties about the amendment. Can we revoke the notification of withdrawal under Article 50? I know that the noble Lord, Lord Kerr, says that we can, but, with the greatest respect to him—I really mean that—that is ultimately a matter that could be determined only by the European Court of Justice in Luxembourg. We cannot predict with any certainty what the outcome might be. Similarly, we do not know whether we would be able to seek an extension of the Article 50 period, which is also a necessary part of the amendment as provided by proposed new subsection (3), although I know the noble Lord, Lord Newby, has had some secret soundings. But the whole premise of the amendment is legal uncertainty—precisely the opposite of what the Bill is intended to achieve.

There is yet another unsatisfactory aspect to the amendment. If a further referendum were held, it would give two options: acceptance or revocation of the notification of withdrawal, which would lead to our remaining in the EU should there be agreement by all parties or—this is uncertain—the ECJ rules that we are entitled to revoke unilaterally, notwithstanding the objection of any or all of the other 27. But what about the option in the event of a referendum that we should leave the EU without a concluded agreement? This is the no deal scenario. I—and, I suspect, most of your Lordships’ House—would much prefer that we did not leave without a concluded agreement, but there must surely be an opportunity for those voting in this referendum, having been informed by the lengthy and highly publicised process of negotiations between the Government and the EU, to conclude that they do not wish to remain in the EU and nor do they want to accept the deal that has been concluded. The proposed referendum in the amendment precludes that option.

If Parliament now denies voters a chance to leave the EU, except on onerous terms imposed by a combination of parliamentary fetters and/or unreasonable conduct from the EU, surely we should not deny the people the chance to leave without a deal. That would be treating people with contempt, and would be inconsistent with the EU referendum Act passed by both Houses of Parliament and what was or was not said by all the parties when the Bill went through Parliament. I do not need to elaborate on how divisive a further referendum would be—the first one was quite divisive enough.

Finally, is it not time that the Labour Party made clear what its approach to a second referendum is? If it thinks that voters should have an opportunity to think again, should it not say so rather than hover waiting for some political advantage?

[Lord Kerr of Kinlochard (CB)]

I shall speak briefly on two technical points. First, the noble Lord, Lord Green, asked whether we would have to pay a price if we chose to withdraw the Article 50 letter. Secondly, the noble Lord, Lord Faulks, asked whether we are confident that we could withdraw the Article 50 letter unilaterally. The answer to the noble Lord, Lord Green, is that given by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. Of course we could not be charged a political price if we withdrew the Article 50 letter during the period of the two years’ negotiation because we would never have left. We would have exactly the rights of a member because we would never have given them up. There would be no question of opt-outs or rebates being taken from us. Of course, the converse would apply if, having left the European Union, we decided that we wanted to come back. There would then be no chance of securing opt-outs or rebates. But, as a member in good standing, operating under the normal voting rules—the rebate is removable only by unanimity and I rather suspect we would not vote for its removal—there is no question that we would be paying a political price.

On the question of whether we would legally be able to withdraw the letter unilaterally, the noble Lord, Lord Faulks, who is a much better lawyer than I am—I am not a lawyer at all—said that that would be a matter for the ECJ. With respect, I do not think so. If the Prime Minister of the United Kingdom appeared in the European Council and said that, as a result of an election or a referendum, there had been a change of view in the United Kingdom and that we would like to stay in the European Union, there is absolutely no doubt what the European Council’s answer would be. It is on the record. The President of the Council, the President of the Commission, the President of the Parliament, the President of France and the Chancellor of Germany are all on record as saying that, although they respect our plan to leave, they would rather we changed our mind and stayed. There is absolutely no doubt that the European Council would say yes. It is conceivable that, three years later, a case might go to the European Court of Justice. Were the European Council correct and intra vires when it agreed that the British might take back their Article 50 letter, I have absolutely no doubt how the ECJ would rule in that case when it came up.

The second point I want to touch on is whether an extension of the two-year negotiating period would, if we sought it, be obtainable. This seems very relevant to the amendment we are considering. If the House of Commons were to choose to adopt the option—it is only an option in the amendment—of putting the deal to the people, it would require an extension. It would be impossible to do that before 29 March. We do not have a referendum law in our statute book; we would have to pass one. There would then have to be a campaign. Realistically, we would be looking at June or perhaps September. We would be looking for, say, a six-month extension.

Would we secure the necessary unanimity in the European Council for that extension? It is a matter of judgment. In my view, it would depend entirely on the reason we gave. If, for example, we said, “We’d like an extension to carry on negotiating. We’d like to send David Davis across for a few more months”, it is conceivable that we might not get the necessary unanimity. If, on the other hand, we were to tell 27 democracies that we needed an extension because the House of Commons had voted in a way that meant there had to be a referendum, or an election, there is no question but that we would get the necessary unanimity—in my view; that is only a judgment. The option in the amendment, and it is only an option, therefore seems reasonable, foreseeable and possible, and I shall vote for it.