Brexit

Lord Goldsmith Excerpts

Wednesday 2nd October 2019 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, this is the first full opportunity that this House has had to debate Brexit since the Supreme Court told the Prime Minister unanimously that his Prorogation plan was,

“unlawful, null and of no effect”,

because it had the effect, in their view, of frustrating or preventing the constitutional role of Parliament in holding the Government to account. It is right that this House should have the opportunity to debate where we are because the Supreme Court particularly recognised that this House too had a role in holding the Government to account, part of our responsibility under our constitution.

During the short period since that decision, much has already been said, and I am sure much will be said today by noble Lords and that their words will be wise and informative. We will also have to deal with and comment on the new information that the Minister has just provided, and I will come back to that in a moment. However, I shall concentrate on two particular matters. Assuming that this new proposed deal does not get either support from Parliament or agreement from the EU, what are the Government going to do? That is what I want to spend a few minutes on, particularly on how the Government intend to achieve what they, including the noble Lord, Lord Callanan, have repeatedly said: that they will comply with the law yet still leave on 31 October.

That mantra of compliance has been much repeated, but we still do not know what the Government mean. This will be the third time that I have raised the question in the House. Of course, it is not a question of generalised compliance, or compliance with the law in general, but of how the Government will comply with the European Union (Withdrawal) (No. 2) Act. That is what has been termed by the Prime Minister the “surrender Act”, which is his favoured term. Language is powerful, as the Prime Minister in particular, as an experienced journalist, knows; but that is a misuse of language and a dangerous one, as colleagues have pointed out, particularly in the other place. Language has been a political tool, at least ever since Erik the Red misnamed frozen Greenland to attract more settlers to his new land. This Act in fact surrenders nothing. It is Parliament which, in the Act, has set the date of an extension of three months, which is to be triggered. If the EU accepts that date, then that is the extension. If the EU proposes another date, that has no effect unless Parliament accepts it. So it is Parliament that is in control. If there has to be a nickname for this, other than the Benn Act, the “parliamentary sovereignty Act” would be a more appropriate name.

Let us look for a moment at what compliance with the Act means. It means more than a bare adherence to the minimal interpretation of the words of the law; it means an acceptance, too, of the spirit of the law—what Parliament, what we, intended by the law. So what are the Government actually doing? From all the statements that have been made, it looks as though, if the Government cannot get this deal through, either with the EU or in the other place, they are looking for a way to circumvent the law, to try to find a way round it. We expect more from people in high office. We expect good faith and respect for the spirit of the law. Mr Johnson has impoverished our society and our politics with his unlawful scheme to shut Parliament up. Let us hope that he does not impoverish it further by looking for shoddy tricks or shabby stratagems to get round what Parliament has ordained.

What will the Government do? The internet has been buzzing with different ideas of loopholes and workarounds. There are none. As the former Supreme Court Justice, Lord Sumption, said on the BBC, the courts disfavour finding loopholes. The earliest of the “loopholes” suggested was that the Prime Minister could accompany the letter of request that he is obliged to send with another letter saying that he does not want an extension at all. However, that would clearly be contrary to the Act. The Act requires that he should “seek an extension”, and you do not seek an extension if, at the same time as asking for it, you say, “Please don’t give it”, or keep your fingers crossed behind your back, as in the playground. This is not playground politics.

My first question to the Minister, when he winds, is on what reassurance he can give about what the Government plan to do in the event that this new proposal does not meet favour with the EU or with the other place. Let me spell out the question more clearly so that there is no room for misunderstanding or, forgive me for saying so, evasion. The Government say that they will comply with the law yet leave on 31 October. The Act allows two ways in which that can happen. First, if, by 19 October, a deal has been agreed with the EU—it will have to be this deal, according to what the noble Lord has said—which the House of Commons has approved and, indeed, this House has debated too. Or, if the Commons has agreed that we can leave without a deal and, again, this House debates that question as well. The clear question becomes: if, by 19 October, neither of those things has happened—there has been no agreed and approved deal and the House of Commons has not agreed that we can leave without a deal—will the Prime Minister “seek to obtain” an extension under Article 50(3), as the Act requires? Secondly, and importantly, will the Government agree not to undermine the request by second letters or other messages or statements which contradict the request?

One of the most disturbing suggestions that we have heard in recent days is that the Government could rely on the Civil Contingencies Act. This is the second “loophole” that I want to mention. That would mean using the powers in the Civil Contingencies Act to override or indeed revoke or set aside the Benn Act. There are a number of reasons why that would be wrong. First and foremost is because the great powers that do appear in the Civil Contingencies Act only arise if there is an “emergency”. That arises only when the Government are satisfied that,

“an emergency has occurred, is occurring or is about to occur”.

According to the Act, “emergency” means,

“an event or situation which threatens serious damage to human welfare … in the United Kingdom”,

or in a part or region of it. It would still be necessary to show that urgent provision has to be made to address that emergency. Noble Lords will agree that that situation does not apply at the moment. However, the suggestion that this Act might be employed is worrying, because if civil unrest or riot, or the prospect of them, were invoked, the Government might then claim that the statutory conditions to revoke the Benn Act were in fact in existence. It is a worry that some Ministers appear to be talking up the risk of unrest, perhaps precisely with that intention in mind. That would be cynical and unlawful.

Another idea which has been floated, and apparently attributed to the Foreign Secretary, is that the Benn Act somehow conflicts with EU law. There is a lovely irony in the Government relying on EU law to get out of this particular problem. However, I do not understand the argument at all. It is no way inconsistent with Article 50 to ask for and agree extensions to the leaving date. That is what we have done at least once already, and it is fully consistent with Article 50. All the Benn Act does is require that a request for an extension is made if certain conditions are fulfilled: namely, that the Government have not persuaded the other place to agree to a deal that they have reached or to agree that we can leave without a deal. What is more, although I do not think it arises, Article 50 requires our notice to leave to be given in accordance with our constitutional traditions. That is what has happened. If it further required that extensions should be requested in accordance with those traditions, that has happened too, because it is pursuant to an Act of Parliament passed by both Houses that the Prime Minister will be required to make this request.

I will not deal with other suggested loopholes, save to say that all, in my view, are wrong. However, even though they are wrong, dealing with such arguments will take time. The worry is that the Government will run down the clock so that there is inadequate time to get decisions from either Parliament or the courts. Therefore, I am not surprised to read that other legal actions are already being planned. Clear answers from the Government today could help to render those unnecessary, so we look forward to hearing what the Minister will say in winding up.

The second issue I will raise—the Minister touched on this in his remarks, but I want to probe him a little further—is what the consequences of a no-deal Brexit would be. If the House of Commons is to approve a no-deal Brexit, clearly the Government are under an obligation to give full, frank and honest advice about the consequences for the British people. How do they intend to do that? We started with the leak of Operation Yellowhammer documents. Will the Government update and release the results of that inquiry? If so, when? We need to know.

I turn now to the subject of the Minister’s opening remarks. Of course, the third important issue is what new terms of the deal there are. If the Government can persuade the EU and the other place to accept those terms, that is one thing. They, and we, will need to examine them closely. During the course of today, others will no doubt comment on them. I want to make some brief initial comments. First, it is telling that this statement is released just as the Conservative Party conference comes to an end. The result of that was that the Prime Minister did not have to debate its contents and merits with the conference itself, which might have been a difficult job. It also means that we and the other place have less time to deal with it. Secondly, as noble Lords will recall, there was a commitment that there would be no more infrastructure or physical checks on the Irish border. I am not at all clear from reading and listening to the Minister whether that is in fact what these proposals will do. That needs to be probed as we go through this. Thirdly, it also seems that this provides for separate regimes for Northern Ireland and the rest of Great Britain. Again, the Minister will no doubt confirm that remark, or otherwise. That is a very important consideration which has been a terrible problem for many people in the past.

Those issues will need to be examined. I will say no more about them at this stage, but I have no doubt other noble Lords will during this debate, including my noble friend Lady Hayter. I am glad to hear—and for this I thank the Minister—the announcement that a Statement will be made tomorrow. The usual channels will have to consider how long to allow for that Statement, as I imagine many noble Lords will want the opportunity to speak to it.

--- Later in debate ---

[Lord Hamilton of Epsom]

Because I do not know what went on in the previous discussions of the Supreme Court; I was not there. All I am saying is that it is very strange that the conclusion the court came to was completely unanimous. This is very odd.

[Lord Goldsmith]

Perhaps I could help the noble Lord. The Supreme Court judges said they were all of the opinion that parliamentary sovereignty was what was at stake. As they made very clear, they were not taking a decision for or against Brexit. They were talking simply about the role of Parliament, and how wrong it therefore was for the Prime Minister to stop Parliament sitting. I do not see any difficulty at all in seeing why they all took that opinion. I entirely agree with the noble Lord, Lord McNally. To suggest something improper about our Supreme Court, as the noble Lord was, is absolutely inconsistent with the rule of law and the role we should take.

[Lord Hamilton of Epsom]

The noble and learned Lord, Lord Goldsmith, is putting words in my mouth. I did not say anything improper. I just said that, considering the judiciary is completely divided on this issue, it was remarkable that all 11 members of the Supreme Court reached the same conclusion. The issue at heart was whether the business of proroguing Parliament was judiciary. The previous court had said it was not judiciary and the Supreme Court said it was. What has actually happened—