European Union (Notification of Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

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

[Lord Forsyth of Drumlean (Con)]

Can the noble Lord explain? He has repeatedly said that what he has put in his amendment and wants to put in the Bill is no different from what the Prime Minister indicated to the House of Commons. Surely the difference is that the Prime Minister’s undertaking was that there would be a vote in both Houses on the issue of a deal or falling back on WTO. Reading his amendment, his difference is between no deal and what? What happens? Can he explain?

[Lord Pannick]

What happens? Nobody knows what will happen: that is the whole point of the difficulty that we face in 21 months’ time. I do not know what will happen. The noble Lord does not know what will happen. I am saying to the House that it is essential that Parliament has an opportunity, guaranteed by legislation, to address the circumstances at the time.

[Lord Forsyth of Drumlean]

I know that some people in the House do not want to see the flaws in this, but the answer to my question—no deal or what?—is that we end up rejecting the view that the British people voted for: that we should leave the European Union. That is the hidden agenda behind the amendment.

[Lord Pannick]

If by referring to a hidden agenda, the noble Lord is suggesting that I have some motivation, I assure him that my only motivation is to ensure that Parliament has a guaranteed opportunity at the end of the negotiating process to decide whether the terms of our withdrawal are acceptable or not. That is a basic question of parliamentary sovereignty.

The amendment will not delay notification of withdrawal from the EU. It does not commit the Government to adopt any specific approach in the negotiations. It does not impede them in the negotiations any more than the undertaking already given by the Prime Minister. Crucially, it will guarantee that the Government must come back to both Houses to seek approval for the result of the negotiations.

--- Later in debate ---

[Lord Oates (LD)]

My Lords, I support the amendment moved by the noble Lord, Lord Pannick. I will not take up too much of the House’s time, not least because I think the issue at stake is really rather simple. On 17 January this year, the Prime Minister confirmed in her Lancaster House speech the Government’s intention to,

“put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament”.

As the noble Lord, Lord Pannick, said, on 7 February the Minister of State for Exiting the European Union stated that,

“the vote will cover not only the withdrawal arrangements but also the future relationship with the European Union”.—[Official Report, Commons, 7/2/17; col. 264.]

This amendment merely gives legislative effect to the Government’s pledge. In doing so it will assist the Prime Minister in upholding her intention, should she or any successor be tempted to resile from it. The amendment will also provide clarity that the Government will require the prior approval of Parliament should the Prime Minister decide to leave the European Union without any agreement at all.

In Committee, some noble Lords on the Benches opposite questioned the need for legal underpinning of the commitment given by the Government to a meaningful vote. The reason is simple. We do not trust the Government on this matter—not because we do not trust the integrity of individual members of the Government but because, as the noble Lord, Lord Deben, pointed out in Committee, we are only discussing this at all because the Government were forced by the courts and the arguments made by the noble Lord, Lord Pannick, to come to Parliament and hear its voice on the matter.

If we want to ensure that our sovereign Parliament, so often championed by the leave campaigners, has a clear and decisive role in scrutinising the final outcome of this process, it must assert its rights in legislation. If the Government are genuine in the commitment they have given on these matters, they should have no problem accepting the amendment. If they are not willing to do so, it will call into question the sincerity of their commitment and only strengthen the argument to pass this amendment into law.

The noble Viscount, Lord Hailsham, reminded us last week:

“Prime Ministers can go, Ministers can be sacked, Parliaments can change and Governments can cease to exist. One needs to enshrine assurances that stand against … changes in circumstances”.—[Official Report, 1/3/17; col. 921.]


I wholeheartedly agree with the noble Viscount. That is why I support the amendment. I hope that your Lordships’ House will do so, too.

[Lord Forsyth of Drumlean]

My Lords, on the noble Lord’s latter point, it is perhaps worth recalling to the House what the Minister, Mr David Jones, said in the other place:

“The Government have repeatedly committed from the Dispatch Box to a vote in both Houses on the final deal before it comes into force. That, I repeat and confirm, will cover not only the withdrawal agreement but the future arrangement that we propose with the European Union. I confirm again that the Government will bring forward a motion on the final agreement … to be approved by both Houses of Parliament before it is concluded, and we expect and intend that that will happen before the European Parliament debates and votes on the final agreement”.—[Official Report, Commons, 7/2/17; col. 269.]


In the course of the debate, the Minister repeated those sentences three times, and the shadow Secretary of State, Keir Starmer, to whom I paid tribute in the Second Reading debate, said:

“Minister, I am very grateful for that intervention. That is a huge and very important concession about the process that we are to embark on. The argument I have made about a vote over the last three months is that the vote must cover both the article 50 deal and any future relationship—I know that, for my colleagues, that is very important”.—[Official Report, Commons, 7/2/17; cols 264-65.]


Both Houses will get a vote on the final draft deal, and we do not need any of these amendments. It is a complete distortion to suggest that the amendments before us today—

[Lord Hannay of Chiswick (CB)]

My Lords—

[Noble Lords]

Order.

[Lord Forsyth of Drumlean]

I will give way in a second.

[Noble Lords]

Order!

[Lord Forsyth of Drumlean]

I shall give way to the noble Lord if he sits down and lets me finish my sentence.

It is a complete distortion to suggest that the Government are likely to renege on those promises or that the amendments that we are discussing today put on to the statute book exactly what was said by the Prime Minister and the Minister in the House of Commons. They do something completely different.

[Lord Hannay of Chiswick]

I am most grateful to the noble Lord for giving way, but having read out three times what the Minister said in the House of Commons he has revealed that the Minister failed to answer the question that he and the noble Lord, Lord Howard, and others put to my noble friend on what happens if there is a disagreement between the two Houses. Perhaps he could address that, and perhaps he could also put that question to the right person to put it to, which is not my noble friend but the Minister who is going to reply to the debate and who will have ample opportunity to reply to it.

[Lord Forsyth of Drumlean]

I know that the noble Lord is very experienced. If he does not know the difference between a resolution in the House of Commons and putting in statute a power of veto for the House of Lords, I am very surprised to hear him making that point.

The point about the amendment that we are discussing, Amendment 3, is that it is a wrecking amendment.

[Baroness Butler-Sloss (CB)]

My Lords—

[Lord Forsyth of Drumlean]

I am not going to give way; I am going to make some progress.

[Noble Lords]

Order!

--- Later in debate ---

[Baroness Butler-Sloss]

How can it be a veto since we cannot in fact impose our will on the House of Commons?

[Lord Forsyth of Drumlean]

The noble and learned Baroness is very experienced, and she should know that this House is able to impose its will on the House of Commons. By convention, we do not do so, and, if we sought to do so, we would be in very deep water. This amendment is taking us into deep water.

I return to the issue under discussion, which is the amendment. Proposed new subsection (1) says:

“The Prime Minister may not conclude an agreement with the European Union under Article 50(2) … on the terms of the United Kingdom’s withdrawal … without the approval of both Houses of Parliament”.


So we get to the final hour, at midnight, when the deal is being done, and the Prime Minister says, “Hang on a second, I cannot agree a deal—I’ve got to go and consult the House of Commons”. It is a ridiculous proposal—

[Noble Lords]

The Prime Minister’s!

[Lord Forsyth of Drumlean]

It is not the Prime Minister’s proposal. It is a ridiculous proposal to say that the Prime Minister may not conclude an agreement until this has been sorted.

[Viscount Hailsham]

Would my noble friend give way?

[Lord Forsyth of Drumlean]

No, I am not going to give way to my noble friend.

[Noble Lords]

Oh!

[Lord Forsyth of Drumlean]

I promise to give way to him once I have actually made my points about the amendment.

It is a first rule of negotiation that you never negotiate with someone who does not have authority to conclude the deal. The effect of these proposals is to put Ministers in a position where their authority is in doubt and where, in effect, this House and the House of Commons are parties to the negotiation, which has to be conducted between Ministers and people from the EU.

[Lord Heseltine]

I wonder whether the noble Lord realises that the Ministers or European officials with whom this will be negotiated have all got to go back to every European parliament and the European Parliament before they can conclude a deal.

[Lord Forsyth of Drumlean]

I do realise that. I have the utmost respect for my noble friend, who helped to get me elected in 1983, which may not be one of the most important things on his escutcheon. He has served the party with great distinction. But I have to say to him that it is not the moment for this House to grab the mace and challenge the authority of the House of Commons.

[Noble Lords]

Oh!

--- Later in debate ---

[Lord Forsyth of Drumlean]

Subsection (2) of the proposed new clause states that:

“Such approval shall be required before the European Parliament debates and votes on that agreement”.


How are Ministers supposed to deliver that? They are not in control of the timetable for when the European Parliament debates these matters. It is an impossible condition for them to meet.

[Lord Hope of Craighead (CB)]

I beg the noble Lord’s pardon and am grateful to him for giving way. The phrase,

“this will happen before the European Parliament debates and votes on the final agreement”—[Official Report, Commons, 7/2/17; col. 264],

is set out in Hansard in the undertaking given by David Jones on 7 February. The more the noble Lord makes his points, the more important it is, it seems to me, to pass this amendment.

[Lord Forsyth of Drumlean]

If the noble and learned Lord accepts my point then the more important it is not to seek to put it in statute. He did not actually deal with my point. How on earth are Ministers able to ensure that,

“approval shall be required before the European Parliament debates”,

when they are not in charge of the timetable for those debates? I would happily give way to him if he would like to answer that point. He is arguing that this should be put in statute and he should be able to explain how it could be achieved.

[Lord Hope of Craighead]

My Lords, I would love to continue this discussion until we reach an end of it, but all I am doing is referring to the words of the Minister himself. It is for him to work out how this undertaking, which he gave to Parliament and which fits exactly with the wording of the White Paper, should be conducted. It is very important that we make this matter clear. The best way of dealing with it is to use the Minister’s words in proposed subsections (1) to (3)—as the noble Lord, Lord Pannick, has done—and pass the amendment. The House of Commons can look at it again if it wishes.

[Lord Forsyth of Drumlean]

The noble and learned Lord is normally very careful and precise. At the beginning of my speech I read out the words that David Jones used in the other House. He said: “We expect and intend” that that will happen before the European Parliament debates. This says that such approval “shall be required” before the European Parliament debates. There is a big difference between “expect and intend” and “shall be required”.

[Lord Callanan (Con)]

Does the noble Lord agree that the vote in the European Parliament will be about whether the deal that is negotiated will be acceptable, not about whether the UK actually leaves the EU or not?

[Lord Forsyth of Drumlean]

My noble friend is absolutely right on that point. Subsection (3) of the proposed new clause states that:

“The prior approval of both Houses of Parliament shall … be required in relation to an agreement on the future relationship of the United Kingdom with the European Union”.


I put that point to the noble Lord, Lord Pannick, in my intervention. This effectively gives this House, and the House of Commons, a veto on Brexit. It gives it the ability to prevent us from leaving the European Union, despite the fact that we have had the biggest vote in our history from people requiring that. It would be immensely destructive to the reputation of Parliament and of this House.

Subsection (4) states that:

“The prior approval of both Houses of Parliament shall also be required in relation to any decision by the Prime Minister that the United Kingdom shall leave the European Union without an agreement as to the applicable terms”.


That means that Ministers are unable to walk away. This was the mistake that David Cameron made. If he had walked away he might have been able to get a proper deal—who knows? He did not walk away and they knew he was not going to. That is why he got such a useless deal. This ensures that Ministers cannot walk away. For the noble Lord, Lord Pannick, to suggest that the amendment is simply implementing the Prime Minister’s promise is a complete misrepresentation.

[Lord Pannick]

I am sorry; I did not say that. I made it very clear to the House that proposed subsections (1) to (3) implement the undertaking. That is not the case in relation to subsection (4). I take the view—noble Lords will form their own judgment—that it is absolutely vital for this House and the other place to have a say on whether we should leave with no deal or the one that is being offered. I made that very clear.

[Lord Forsyth of Drumlean]

I have to say to the noble Lord that we know what he is up to, and we know what is going on.

[Noble Lords]

Oh!

[Lord Forsyth of Drumlean]

I appreciate that I am in a minority in this House, and not just because I am a Scottish Tory. I am in a minority because I support the views of the majority of people in this country. This House is absolutely full of people who still have not come to terms with the results of the referendum. This is a clever lawyer’s confection in order to reverse that result. That is what we are debating. That is what it is about.

[Lord Hannay of Chiswick]

My Lords—

[Noble Lords]

Order.

[Lord Forsyth of Drumlean]

I have already given way to the noble Lord. He can make his own speech.

[Lord Hannay of Chiswick]

My Lords—

[Lord Forsyth of Drumlean]

I am not giving way to the noble Lord.

[Noble Lords]

Order!

[Lord Forsyth of Drumlean]

Well, all right. I will give way to the noble Lord.

--- Later in debate ---

[Lord Hannay of Chiswick]

I am most grateful to the noble Lord for having arrogated to himself the decision as to what the hundreds of people around this place believe.

The point I was going to raise, and ask the noble Lord, Lord Forsyth, to address, is this. Of course the Prime Minister of this country has the ability to ensure that we leave the European Union without an agreement, because of the two-year time limit in Article 50, which the noble Lord has not addressed. That time limit is absolute. It will be triggered within the next few days and, sometime in 2019, it will reach its conclusion. It takes two to negotiate. Since the Prime Minister will be one of them—and the 27 and the institutions of the European Union will be the other—she has the ability to ensure that we leave without an agreement. That is the eventuality that is being dealt with in this amendment.

[Lord Forsyth of Drumlean]

The noble Lord makes my point for me. If, after two years, we have no agreement, then we will have left the European Union. I need to conclude my remarks.

[Noble Lords]

Hear, hear!

[Lord Forsyth of Drumlean]

This place is beginning to be like the House of Commons.

What is going on here is like Gulliver. These amendments are trying to tie down the Prime Minister—by her hair, her arms and her legs—in every conceivable way in order to prevent her from getting an agreement and us from leaving the European Union. The House should reject this amendment for what it is—which is an unelected Chamber trying to frustrate the will of the democratically elected Government and of the people, which has been expressed in a huge vote in a referendum.

[Lord Bilimoria (CB)]

My Lords, one of the main reasons why we are where we are now is that the Prime Minister and the Government wanted to go ahead and use the prerogative, and it is only because of the ruling in the Supreme Court that we are debating this here.

In this amendment, we are asking to have something put in statute to protect against uncertainty in the future. We have heard so far in the discussion that questioning why voters voted—remain or leave—would be an insult to them. However, this was not a general election. In a general election, you have the party’s manifesto—or an “Ed’s stone” and its commandments. If the people do not like the Government and say that they have not lived up to their manifesto, or have not delivered, in five years’ time they can throw them out. The difference here is that this decision is permanent. The last referendum was in 1975—over four decades ago. Then, there was a majority of 67%. A supermajority was achieved. The decision was decisive. There was certainty. This time, we were told that it was a binary decision—remain or leave—but the outcomes are anything but binary. One of the outcomes is a hard Brexit.

The main issue here is that people are allowed to change their minds. Whether it is the Prime Minister, her Ministers, Members of the other place or Members of this House who want to change their minds, it is their right to do so. In fact, Steve Jobs, the founder of Apple, said that changing your mind was a sign of intelligence. As Keynes said, “When the facts change, I change my mind”. As the noble Lord, Lord Heseltine, said, many facts and many outcomes of this negotiation are completely uncertain. The Dutch elections, the French elections and the German elections are coming up. The eurozone might collapse. Europe might even reform its immigration rules, which we would like. Therefore, it is only right that Parliament has a full say on the road ahead. This amendment would protect us from the potential outcomes.

I concluded my Second Reading speech by quoting Professor Deepak Malhotra of the Harvard Business School, a world expert in negotiation. He told me to make sure that I read a book called The Guns of August by Barbara Tuchman about the beginning of the First World War. He said that reading that book was like watching a train crash in slow motion. That is what we are seeing right now with Brexit. I conclude that we need to support this amendment more than anything in order to protect the future.