European Union (Notification of Withdrawal) Bill

Lord Grocott Excerpts

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

[Lord Pannick (CB)]

My Lords, Amendment 3 is in my name and the names of the noble Baroness, Lady Hayter, the noble Lord, Lord Oates, and the noble Viscount, Lord Hailsham. The purpose and effect of Amendment 3 is very simple. It would ensure that at the end of the negotiating process, the approval of Parliament would be required for the terms of our withdrawal from the EU. The Prime Minister has accepted that principle: she has undertaken that any agreement with the European Union on the terms of our withdrawal, and any agreement on our future relationship with the EU, will be put to both Houses of Parliament for their approval. She has also promised that this will occur before the withdrawal agreement is sent to the European Parliament for its consent. That must be right: this Parliament must have at least the same opportunity as the European Parliament to disagree with the terms of any draft agreement. The Prime Minister has given an undertaking but the Government are refusing to include the commitment in the Bill. Given the importance of the decision to leave the EU and the importance of the terms on which we are to do that, the role of Parliament must surely be written into the Bill—no ifs and no buts.

The amendment has been revised since the very helpful debate in Committee last Wednesday evening. As suggested by the noble and learned Lord, Lord Hope of Craighead, during that debate, proposed new subsections (1), (2) and (3) in the amendment set out the undertaking given to the House of Commons by the Minister, Mr David Jones, on 7 February at col. 264. The only alteration to what Mr Jones said is that the amendment does not commit the Government to proceeding by way of a Motion in both Houses. The amendment allows the Government to decide what would be the best means of seeking and obtaining approval from both Houses. That is because of the point made in Committee last Wednesday night by the noble Lord, Lord Lisvane, with his enormous knowledge and experience of parliamentary procedure.

Proposed new subsection (4), which has also been revised since the debate last Wednesday, requires the “approval of both Houses” if the Prime Minister decides that,

“the United Kingdom shall leave the European Union without an agreement”,

as to the terms. Parliament must also have a role in those circumstances. It must be for Parliament to decide whether to prefer no deal or the deal offered by the EU.

I will also address a point that has been raised with me by some noble Lords, about what happens if the two Houses disagree when the agreement, or lack of agreement, is put to Parliament. It is of course the Prime Minister who has decided that the terms of our withdrawal are so important that the approval of both Houses of Parliament should be required. The White Paper says, at paragraph 1.12:

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


The Minister, Mr David Jones, stated in the House of Commons in Committee that,

“the Government will bring forward a motion on the final agreement, to be approved by both Houses of Parliament before it is concluded”.—[Official Report, Commons, 7/2/17; col. 264.]

In any event, if this House were to agree this amendment today, it is open to the Government, if they are concerned about this issue, to seek to amend this proposed new clause in the Commons next week to address what happens if the two Houses were to disagree.

[Lord Grocott (Lab)]

This is a very important point, and I am glad that the noble Lord is addressing it in such detail, but we cannot make our judgments on the basis of what the Government have said they might do. The judgment today must be on the basis of what is in this proposed new clause. I therefore ask the noble Lord, from his perspective, given that the proposed new clause repeatedly says,

“the approval of both Houses of Parliament”,

what, in his judgment, would the solution be if one House said yes and the other said no?

[Lord Pannick]

As I have said, this is the Prime Minister’s undertaking, but since the noble Lord has asked me—I do not have to tell him this, given his enormous experience—if the House of Commons were to give its approval, this House would, in my judgment, rightly be told that it should be very slow indeed to take a different view from the elected House. If we were to disagree with the Commons, I understand that it would be open to the Government immediately to take the matter back to the Commons for a further confirmatory resolution, which, if agreed, would lead to a further approval Motion in this House. I expect, at that stage, it would be exceptionally unlikely that this House would stand its ground. I repeat, however, that if the Government were dissatisfied with that, which is the consequence of the undertaking given by the Prime Minister, it is open to the Government to bring forward an amendment in the other place. Indeed, it was open to the Government in this House to bring forward an amendment to this amendment to deal with the matter.

--- Later in debate ---

[Lord Kerr of Kinlochard]

I am grateful to the noble Lord. The first of my two quick points is to clarify the issue of irrevocability raised by the noble Lord, Lord Finkelstein—and I am glad that he did so. We discussed the issue extensively at Second Reading and he told his readers in the Times that we did not mention it at all, so I am glad that he is here this time. I also pay tribute to the skill of the Lord, Lord Pannick, both in court and in this House. When he won his case in the High Court—not the Supreme Court—the No. 10 spokesman was asked about revocability and said that,

“as a matter of firm policy, our notification to withdraw will not be withdrawn”.

After our extensive debate at Second Reading, the Minister was put on the spot by the noble Baroness, Lady Symons of Vernham Dean, about whether it was revocable or not. The Minister is a very clever man and replied:

“As a matter of firm policy, our notification will not be withdrawn”.—[Official Report, 21/2/17; col. 320.]


That is very similar to what was said by the No. 10 spokesman, which is always wise in a Minister. Last Wednesday, in Committee, the same issue of revocability was raised. When the Minister replied to the debate on the amendment, he said that,

“as a matter of policy we will not withdraw our notice to leave”.—[Official Report, 1/3/17; col. 923.]

The wording was slightly wrong there, but I am sure they will forgive him.

Every time the Government say that,

“as a matter of policy”,

firm or infirm, they will not withdraw the notification which the Bill authorises, they implicitly confirm that, in law, they could withdraw it—and they could. If you want a definitive source, do not look at me, listen to the President of the European Council, who has said so on the record. If you want a definitive EU legal view, and this would be an EU legal question if it were ever tested, try the present head of the Council’s legal service or the one who advised me when I was writing the wretched thing. Just a point of clarification: it is revocable.

My second point relates to the discussion of subsection (4) of the new clause proposed in the amendment. The noble Lord, Lord Lawson, detected deep evil in it. What is being said there is that it is for Parliament to decide whether no deal is better than a bad deal and to make a judgment on whether the deal is bad and that the chaos and disruption of leaving with no deal is preferable. I struggle to think of a deal which could be worse than no deal. Last week, the president of CBI said that the worst possible scenario was leaving with no deal. However, that is not the point: the point is about parliamentary sovereignty. The issue of whether no deal is worse than the deal which is available on the table on that day is for Parliament to decide. That is what subsection (4) of the amendment says, and I support it.

[Lord Grocott]

My Lords, the noble Lord, Lord Kerr, quite rightly—and entertainingly as always—referred to the crucial element of parliamentary sovereignty. We have heard from top lawyers and diplomats and I only offer some thoughts as a run-of-the-mill parliamentarian. I could not possibly vote against parliamentary sovereignty. Voting against an amendment such as this would be like voting against motherhood and apple pie. It is something in which I passionately believe. It was one of the reasons why many people—and I was one of them—were concerned during the course of the European referendum because it seemed incontrovertible that the way in which the European Union had developed involved a steady erosion of parliamentary sovereignty. It would be quite difficult to disagree with this proposition.

When addressing this amendment, we have to decide what a decision by Parliament actually comprises. I am forced to read the amendment. Proposed subsection (1) refers to,

“without the approval of both Houses of Parliament”.

Subsection (3) requires:

“The prior approval of both Houses of Parliament”,


Subsection (4) refers to:

“The prior approval of both Houses of Parliament”.


With great respect to the weight of legal opinion being offered, to propose this amendment without being clear as to what is involved in the approval of both Houses of Parliament is to leave an ambiguity at its heart. It is hardly necessary to add to what the noble and learned Lord, Lord Mackay, has already said.

I was concerned about this from the start. I raised it in Committee. There has been an attempt to move towards answering the question, “What happens if the Commons say ‘yes’ and the Lords say ‘no’?”. The solution is certainly not contained within these amendments.

I made an, admittedly inadequate, attempt with the Public Bill Office to see if there was any way in which I could put down an amendment which would satisfy, or at least address, this problem at the heart of the Bill. If the House will forgive me—as I will conclude shortly afterwards—I will read out the terms of the defunct amendment. It would have said:

“(5) If, under the provisions of subsections (1), (3) or (4), there is disagreement between the House of Commons and the House of Lords as to whether or not the agreement or decision should be approved, the view of the House of Commons prevails over the view of the House of Lords”.


That makes an attempt to explain precisely—or, I hope, resolve precisely—the ambiguity at the heart of the Bill.

[Lord True]

I was following the noble Lord’s argument, and I agree with it in terms of the imprecision and lack of clarity as to what happens if both Houses disagree. Does he agree that there is a further issue in relation to the different procedures of the two Houses? In the House of Commons, the Government control the agenda. We heard from the noble Lord, Lord Pannick, that what happens in this House will be up to the Government. But am I not right in saying that any noble Lord can put down an amendment at any time to disapprove a resolution and this House will vote on it? Surely there cannot be any circumstances in this House in which the Government control what might constitute approval or disapproval. Is this not a further difficulty with the amendment?

[Lord Grocott]

Yes. I can understand that point. I want to emphasise the central problem, which the noble and learned Lord, Lord Mackay, has identified. I ask the House—or, more specifically, the mover of the amendment—whether something like that, included at Third Reading, would solve the difficulty which I think even he would acknowledge was expressed in the various interventions that he dealt with.

There is one thing that I can influence to some degree—something which, if not within the control of this House, is within the control of my beloved Labour Party. For as long as I have been in it, it has been absolutely clear about the primacy of the elected House over the unelected House. I say this to my Front Bench and to my very good noble friend Lady Hayter, who will be winding up. Should we pass this amendment as written and, in two years’ time, find ourselves in a situation where there is a clash between the House of Commons and the House of Lords, and if all the normal attempts at agreement and solutions to the differences had been tried, this party, at any rate, would assert clearly that, ultimately, the primacy of the House of Commons must prevail.

[Baroness Altmann]

My Lords—