Brexit

Debate between Lord Forsyth of Drumlean and Lord Butler of Brockwell

Wednesday 2nd October 2019 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, since we last debated Brexit, much has changed and yet, in many ways, nothing has changed. In some respects, we have gone backwards. We are looking for a new departure arrangement having renounced Theresa May’s agreement, which many of us, however reluctantly, were finally willing to support—including the present Prime Minister. Yet in the gloom, I believe there are some hopeful signs, to which I will return.

Let me first say in parenthesis that I saw nothing surprising or constitutionally revolutionary in last week’s ruling of the Supreme Court. Since the noble Lord, Lord Pannick, was sitting beside me, let me say that in view of the large television audiences for the proceedings of the court and following the ending of the televising of the Ashes contest, my noble friend has a claim to have become the Ben Stokes of the legal profession.

My career was spent in an era when judicial review became established as a means of challenging unreasonable exercises of power by the Executive. Although Prorogation took place geographically in Parliament, it was an act of the Executive: Parliament did not have a chance to vote on it. For me, the crucial sentence in the judgement was:

“It is impossible for us to conclude … that there was any reason—let alone a good reason—to advise Her Majesty to prorogue Parliament for five weeks”.


A five-week Prorogation of Parliament at a crucial time when, as we will see next week, only a few days are needed to prepare for a Queen’s Speech, was an unreasonable exercise of the prerogative by the Executive. That is what the ruling was about; it was not about Brexit.

[Lord Forsyth of Drumlean (Con)]

I have huge respect for the noble Lord and I value his advice. He is arguing that the process of Prorogation did not constitute proceedings in Parliament. Does he think the same is true of giving Royal Assent to Acts of Parliament?

[Lord Butler of Brockwell]

That is a legal issue on which I do not want to reply immediately. I think that is a proceeding in Parliament, but this was an act of the Executive, which happened to take place in Parliament.

The result of the Supreme Court’s judgment is that this House is sitting today and we have an opportunity to make our contribution to the debate, so I welcome this occasion. I hope that the Government get a deal with the EU; and there are some hopeful signs, although perhaps not as many as the Prime Minister claims. The DUP now seems prepared to support a deal on the broad lines the Prime Minister is outlining. The Irish Government, although by no means convinced by the details so far reported about the Prime Minister’s approach, appear to have realised that no deal would be a severe economic blow to them. The European Union wants a deal and is prepared to accept a greater role for the Northern Ireland Executive regarding the arrangements affecting Northern Ireland. As the noble Lord, Lord Howell, pointed out to us in our previous debate, constructive suggestions about alternative arrangements for border controls have been made by the commission established by Prosperity UK.

Yet the prospects of reaching an agreement on all the necessary details by 31 October, let alone 17 October, are so remote as to be impracticable. So what sort of agreement do the Government envisage by that date? I understand that the Minister will not be able to tell us any more tonight, beyond what is in the Prime Minister’s so-called final offer to the EU and the documents that have been placed in the Printed Paper Office. But realistically, we must accept that it seems impossible that an agreement will be reached on 17 October, except perhaps on ways of temporarily mitigating the effects of no deal.

In that case, a request for a postponement under the European Union (Withdrawal) (No. 2) Act seems inevitable. People understandably ask, “What would be the purpose of an extension?”. The Minister described it as “pointless”; I was surprised by that adjective because one benefit would be the general election which the Government have been seeking. It would, presumably, take place in late November or early December and might produce a Government able to hammer out a policy which would command a majority in Parliament, and with whom the EU would have to negotiate seriously. If that were the outcome, it would be a price worth paying for a further extension. It would at least be preferable to the present paralysis and, in my view, greatly preferable to leaving on 31 October without a deal.

European Union (Withdrawal) (No. 5) Bill

Debate between Lord Forsyth of Drumlean and Lord Butler of Brockwell

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I hope that this is an unnecessary fear, but it ought to be clarified. My worry, which I am sorry to say has been intensified by what happened on Thursday, is that if an affirmative resolution is needed on Friday or Saturday, is there a risk that it could be filibustered and therefore not passed? We would then crash out because of that obstruction to the business of the House. As I say, that worries me very much, so for that reason I support the inclusion of Clause 2.

[Lord Forsyth of Drumlean]

My Lords, I know nothing of these matters but perhaps the noble Lord could explain how you can filibuster a statutory instrument?

[Lord Butler of Brockwell]

I imagine that you can filibuster it by continuously talking and thus prolonging the debate until past midnight on 12 April. That is what I fear.

[Lord Forsyth of Drumlean]

As the noble Lord will have discovered, we have a procedure which last Thursday was used on five occasions in order to bring the matter to a close.

--- Later in debate ---

[Lord Butler of Brockwell]

My Lords, I understand the misgivings that many in this House have about this Bill, but I have to say to the noble Baroness that her amendment would not stop the Bill becoming an Act. It is going to become an Act, and that is the mischief, so she cannot stop through her amendment the mischief that she wishes to stop. As the noble Lord, Lord Pannick, said, the Bill ceases to have an effect, so she need not worry about that either.

There is another reason why we should not pass this amendment: with the amendments we have passed so far, supported by the Government, they will be supported in the House of Commons, and so we will not have ping-pong. If we were to pass the noble Baroness’s amendment and the Government resisted it in the House of Commons, the Bill would have to come back here and there would be further delay. Therefore, I urge her not to press her amendment, because it is unnecessary and it will cause unnecessary prolongation of the procedures.

[Lord Forsyth of Drumlean]

Before the noble Lord sits down, why does he think the Government would resist this?

European Union (Withdrawal) Bill

Debate between Lord Forsyth of Drumlean and Lord Butler of Brockwell

Monday 19th March 2018 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I put my name to the amendment in the name of the noble Lord, Lord Newby, when it was Amendment 181. I would have put my name to his amendment today but I did not have the opportunity to do so over the weekend.

In my speech at Second Reading I agreed with others that this is not an appropriate vehicle to require a further referendum on our leaving the European Union. However, I said that I would support any amendments necessary to ensure that a further referendum would be among the options in Parliament’s meaningful vote at the conclusion of the negotiations. The amendment in the name of the noble Lord, Lord Newby, is such an amendment.

I have feared throughout that the choice the Government intend to give Parliament at the conclusion of the negotiations is, “this agreement or no agreement”. I am sorry to say that what the noble Lord, Lord Callanan, said in our debate last Wednesday confirmed that this is indeed the Government’s intention. I hope that he will tell me I am wrong, but I think it was clear from what he said last week that that is what the Government propose to do. Of course, we must all hope that the agreement that emerges from the negotiations will be good for the UK—but the Prime Minister has famously said that no agreement would be better than a bad agreement. It would be entirely wrong if the only choice given to Parliament at the end of the negotiations was between an agreement, however bad, or no agreement at all. I know that the Prime Minister and the Government feel that they have an instruction from the people to take Britain out of the EU—but I cannot believe that a bad agreement is a correct interpretation of the wishes of a majority of the people as expressed in the referendum. If Parliament judges the outcome of the negotiations to be bad, a better alternative must be to think again before we drive the nation over a cliff.

Like the noble Lord, Lord Newby, I cannot get out of my mind my noble friend Lord Lisvane’s aunts, whom he described so graphically at Second Reading. If, having voted to go to cinema, they find that the two films available are ones they do not want to see, the only sensible course must be to think again about going to the cinema at all. If that is true for my noble friend’s aunts on a Saturday evening, I suggest that it is certainly true for the nation as a whole in one of the most important decisions that we will have to make in our generation.

[Lord Forsyth of Drumlean]

To take the cinema analogy further, does the noble Lord not think that if the European Commission thought that there was a possibility of a second referendum, it would be likely to put something on at the cinema that would be even scarier for the maiden aunts?

[Lord Butler of Brockwell]

My Lords, I had expected that intervention. If that is the EU’s tactic, it has plenty of ways of doing it, and plenty of motive for doing it, other than just producing a bad agreement.

As others have said, it is quite clear that, since the people voted in a national referendum to leave the European Union, that decision could be reversed only by the people. That would require either a further referendum or a general election in which the people had the opportunity to elect a Government with an explicitly different mandate. In those circumstances, I suspect the Government themselves would prefer a further referendum.

Ever since the referendum, I have argued that the British people are entitled to a further say when the terms of the UK’s departure are known. I still hold that view, but that is not the case which I am arguing today. The purpose of this amendment is simply to ensure that a further referendum remains an option if the negotiations do not turn out as well as the Government hope.

To say that Parliament’s so-called “meaningful vote” can be a choice only between a bad agreement and no agreement would be an outrage. I shall listen carefully to what the Minister says in his reply, but I am afraid that the Government intend that the meaningful vote will be simply a binary choice between the outcome of the negotiations and no agreement. In that case, I hope that the House will support an amendment on the lines of that proposed by the noble Lord, Lord Newby—if not this evening, then on Report.