Brexit

Lord Goldsmith Excerpts

Monday 25th March 2019 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, nothing makes me prouder of being a Member of your Lordships’ House than sitting through a debate like this. Although we are, as the noble Lord, Lord Bowness, said, spectators at the moment, the wisdom, as the noble Lord, Lord Cormack, said, strength of opinion and experience shown in a debate like this is extraordinary and something to be proud of. We also learned one or two things. I am not sure that I will get used to thinking of the noble Lord, Lord Hennessy, as a national treasure. I still think of Dame Vera Lynn as the original national treasure. I can think hard about that, and I did not know that the middle name of the noble Lord, Lord Naseby, was Wolfgang, so one learns a lot in these debates.

The noble and learned Lord, Lord Hope of Craighead, knows how much I admire him, even though I do not agree with the conclusion of his speech. I was particularly struck by the speech of the right reverend Prelate the Bishop of Newcastle. She reminded us of the risks to which Members of Parliament, particularly female Members, have been exposed—and not just by this issue but by another that is taking place at the moment, about which nobody can be the slightest bit proud. I wish her well with her three candles project, which sounds a tremendous way of trying to heal some of these divisions, as the most reverend Primate the Archbishop of Canterbury told us would be necessary on a previous occasion.

I will come to what I take from the debate so far, but I first want to deal with the legal issues that have arisen. Noble Lords know that I turn up at these debates for that reason. We have not had many but I want to refer to a couple. We have had no change, which we had all been expecting, in the legal issues relating to the backstop. We have had no further opinion from the Attorney-General. We have had no change, as we know, to the withdrawal agreement. It is clear that there will be no change to the part of the withdrawal agreement that says that the backstop will continue unless and until there is a new agreement. That has not changed at all. Maybe we will come back to that at a later stage.

There has been a suggestion—I think the only person who mentioned it in this debate was the noble Baroness, Lady Deech—that Article 62 of the Vienna convention on the interpretation of treaties is a way out of the problem. I fundamentally, seriously and critically disagree with that. From a letter in the Times, I know—rather to my surprise, because I admire him very much—that it has the support of the noble Lord, Lord Pannick. I am sorry that he is not in his place, because he could jump up and tell me why I am wrong. He will have to do that on a later occasion. However, I have been back to the treaty and I do think he is wrong. The treaty says clearly that a fundamental change in the circumstances existing at the time of a treaty’s conclusion, and which was not foreseen by the parties, can lead to its termination. I do not see how one can possibly say that a failure to agree a deal is something that is not foreseen; obviously, that is what we have been debating for some time. That does not seem to be an answer to the conundrum that has been put forward.

One question that was raised, and which might be relevant, was whether international law trumps national law. Several noble Lords raised it, and it is referred to in the Prime Minister’s Statement. I notice that the noble and learned Lord, Lord Keen of Elie, in his place, so he can at least whisper the correct answer to the noble Lord, Lord Callanan, who is winding up this debate. My understanding is this. It is rather as though one is a member of a club. If the club’s rules say that you are no longer a member, or it decides that you are no longer a member, you can say as much as you like that you continue to be a member, but you are not. I think that that is what is going on. Whether it is right to describe that as international law trumping national law, I am not sure, but I am clear in my own mind that because the European Union has now said that the leaving date has changed, it has changed. Until that date we will continue to be a member and after that date, we will not be. The fact that there is little legal discussion in this debate probably indicates how peripheral these issues have been, compared with what your Lordships have really been considering today, with the wisdom, insight and perception that your Lordships show on these occasions.

[Lord Butler of Brockwell]

If the noble Lord’s club analogy is correct, why do we have to pass a statutory instrument at all?

[Lord Goldsmith]

It is to change the club’s rules. In this case, Parliament is the club. I was just trying to explain how I see the situation. I see the noble and learned Lord, Lord Mackay, rising to his feet and gladly give way to him.

[Lord Mackay of Clashfern (Con)]

My Lords, I think that there has been some discussion about this. The situation is that the EU is in charge of the treaty. Therefore, if we are not out of the treaty, we remain members as a result of the treaty of the European Union. However, the treaty by itself was not the whole story, because we had to pass an Act of Parliament to make the treaty work in the United Kingdom. If, as has happened, the EU has extended the date so far as the treaty is concerned, in order to make our law conform with the way the treaty works, the statutory instrument is required. Otherwise, there would be a discontinuity between the treaty on the one hand and the initial law on the other.

[Lord Goldsmith]

I entirely agree with what the noble and learned Lord has said. I see that the noble and learned Lord, the Advocate-General, has come to sit next to the noble Lord, Lord Callanan, to put him straight on all of this.

Let us move on quickly to the things that matter more than that. The issue is what the country is now faced with. In that debate we are now really a spectator, as has been said. At this stage, we are watching as the House of Commons considers what to do. We may well find that, through the mechanism of indicative votes—personally, it is what I hope we will see—it will now consider all the possible alternative routes for this country. As has been said by a number of your Lordships, we are reaching that point at a very late stage and, as has also been said, that is as a result of the obduracy of the Prime Minister. One has to respect her stamina and perseverance but, as already raised in this debate, the fact remains that there are people whose voices have not been heard by the Prime Minister. It was remarkable to watch on the television yesterday who was turning up at Chequers. I admire their motorcars, and there were two exceptional ones that I envied, but it was surprising for the people of this country to see that this is how their future is being decided—by private discussions with just a small group of people.

Now, I hope that that will not happen and that the House of Commons will take charge of the situation. I have no doubt that it will take into account many of the points that your Lordships have discussed today. I am glad that there was a reference during our debate to the position of young people. I have seen the benefits of Erasmus in my own family, and I saw the young people during the march protesting about their lack of voice.

I think that only the noble Baroness, Lady Ludford, referred to the contribution that the European Union has made to peace and security in Europe. I was struck by the remarks of the noble Lord, Lord Heseltine, at Saturday’s march and I am sorry that he is not in his place. This was powerful stuff. He has said it before in this House, although perhaps not in those words. As I recall, he said that being alone was not Churchill’s wish or hope; it was his fear. Peace and security is a very important matter which no doubt the House of Commons will take into account when it considers where we go from here.

Inevitably, your Lordships have talked about the legitimacy of a referendum. Again, it is for the House of Commons to consider in its indicative votes whether that is a way forward. I myself have never understood the objections to a further referendum on democratic grounds. I appreciate that people who thought they had achieved a particular result the first time round do not want to see it rerun. However, regarding legitimacy, in an earlier debate in this House—I do not which one it was; it might have been the first debate but perhaps the noble Lord, Lord Newby, can tell me—the noble Lord, Lord Lisvane, used the colourful if slightly whimsical example of his maiden aunts being invited to make a choice on the basis of inadequate information. I therefore agree with the noble Baroness, Lady Altmann, who asked why this would be undemocratic.

As a result of what the European Council said, there has also been much discussion about the need to hold further European elections. If that is the case, it will be, as the noble Lord, Lord Kerslake, said, inconvenient—one could perhaps put it more strongly than that—but I find it difficult to describe it as undemocratic to ask people to vote in an election. That is perhaps why the noble Lord, Lord Butler of Brockwell, referred to the need to give people the final say. However, that is not for us to decide today. Looking at the annunciator, I see that there is a Division in the Commons. Maybe I should sit down before we find out what is going to happen over the next few days. Arguments were powerfully put by my noble friend Lord Adonis. I am not sure that I agree with the sequencing that he has in mind but that was not the fullness of his observation.

In an earlier debate, I drew an analogy with the play “Waiting for Godot”. At that stage, we thought that there would be a further opinion or a further amendment to the legal position that would cause us to reconsider what we had been saying about that. I quoted the Irish critic who had referred to “Waiting for Godot” as,

“a play in which nothing happens, twice”.

I hope that we are not going to see nothing happening three or four times.

We have to move on for the sake of the country, and it is now to the other place that we must look to get the guidance and establish the direction in which the country will be going. That is what I look forward to seeing at the end of this evening when the House of Commons decides about the procedure, and during the rest of this week, when it makes its decisions on the votes.