European Union (Withdrawal) Bill

Lord Hamilton of Epsom Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[Lord Newby (LD)]

My Lords, your Lordships’ House has just passed an amendment to the Bill that gives Parliament a meaningful vote on any Brexit deal. This amendment, standing in my name and those of the noble Lords, Lord Butler and Lord Wigley, and the noble Viscount, Lord Hailsham, is about what happens next. It says the Government must put forward the option of a referendum on the deal, a people’s vote to determine whether the people as a whole approve the outcome of the negotiations or seek to remain within the EU. It would not require a referendum to be held in all circumstances but only if Parliament—the Commons in particular—voted for one. In what circumstances might the Commons choose to do this? I think it might well choose to do so if it had rejected the deal that the Government had negotiated, and that is a perfectly plausible outcome.

I have had the privilege of listening to almost all the 16 days on the Bill—some 120 hours of debate—and the dubious pleasure of hearing virtually every word uttered by Ministers during the process. Whether we have discussed clinical trials, family law, environmental protection, police co-ordination or international security, the position of the Government has been virtually identical: they wish us to have arrangements as close as possible to those that currently obtain, to the extent of being prepared to submit to the rulings of the hated European Court of Justice in respect of key regulatory bodies, while accepting that we will not have the benefits nor the influence that we enjoy today. In area after area, they accept that we will be powerless rule-takers. The alleged sunny uplands of being in a more favourable position in any of these areas have, to put it mildly, been shrouded in fog. On the key issue of the customs union, vital to the future of Northern Ireland and our trade more generally, and faced with the brick wall of hard reality, the Government’s response is simply that of petulant defiance.

If the Government reach an agreement based on their current negotiating stance, I believe that it will be obvious that it leaves the country poorer, less influential and less secure—as the Prime Minister predicted it would before the referendum. A large majority of MPs and members of your Lordships’ House know this, but may yet vote for it. Why? Because the 2016 referendum vote has become sacrosanct, and the expressed will of the people two years ago holds people under its spell. It is as if it has frozen attitudes in a way alien to the democratic principle, which allows people to change their minds.

There is only one way in which this spell can be broken; there is only one way in which MPs can be liberated to vote for what they know is in the country’s best interest and in line with their beliefs; and that is giving the people the final say. The spell cast by the previous referendum is so powerful because it reflects the political reality that a vote in the Commons to reject a Brexit deal could not be the end of the matter. In those circumstances, the country would demand a final say.

As the noble Lord, Lord Hamilton, put it at Second Reading, such a vote would mean that he had,

“no option but to take to the streets”,—[Official Report, 20/2/17; col. 144.]

because he could not get representation in Parliament. I suspect that he is not alone in that view. To save him from a potential criminal record and in order to give the people, who started the Brexit process, the chance to determine how it should be concluded, a vote on the deal should then be held.

[Lord Hamilton of Epsom (Con)]

As the noble Lord mentioned my name, the Liberals were very reluctant to accept the result of the first referendum, so why will they accept the result of the second one if it goes against what their interests are?

[Lord Newby]

My Lords, the first referendum was a mandate to the Government to negotiate Brexit. At the end of the process, a decision has to be taken on whether that mandate has been adequately fulfilled. The only question is whether the Commons alone or the Commons supported by the people should take that final decision.

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[Lord Hamilton of Epsom]

Does the noble Lord think that dissatisfaction with the EU has grown greater since the stance it has taken on the negotiations?

[Lord Howarth of Newport]

There is a great deal of national grumpiness, and when the British people get grumpy, they are a force to be reckoned with. The dispossessed rejected the status quo and were unimpressed by Project Fear, and my advice to my noble friends is to stop digging.

The false simplifications, the distortions and the mendacities on both sides in the referendum campaign were a degradation of our politics. I believe that the nation’s heart would sink at the thought of another bout of all of that. The second referendum would inevitably intensify the divisions and the bitterness of the first one. There would, I fear, be ugly episodes. The losers would demand a third referendum, whatever the noble Lords, Lord Newby and Lord Wigley, say.

We are not immune in this country to the neo-fascism that has so deeply, disturbingly possessed swathes of central and eastern Europe. We are fortunate that the most sinister figure to present himself as a leader of the far right in this country was Nigel Farage. If we were to have a second referendum, I greatly fear that a far more charismatic and sinister leader might emerge on the far right.

In any case, referendums are alien to our constitution, and the issues that would fall to be decided at a referendum, if and when the people were asked to judge the terms of the deal the Government had negotiated, would be immensely complex technical issues about trade, financial services, immigration, security, environmental protection and so forth. These complex issues should be determined by indirect democracy, by the intricate processes of parliamentary government, not by the crude instrument of a plebiscite.

I am always a little unsure of myself when I find myself disagreeing with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, because I have huge respect for his judgment. He calls for one last referendum. But the Constitutional Committee of your Lordships’ House advised us that referendums should occur only rarely, but were appropriate when a major constitutional issue needed to be decided. That is what happened in 2016. There was a referendum on the great constitutional issue of whether we should leave the European Union and reclaim the sovereignty that we had lent to it. That great constitutional issue has been decided. Strictly, of course, as noble Lords have mentioned, in legal terms that particular referendum was advisory, but politically it was binding.

Noble Lords may recollect this document. The Government sent it to every household in the country. It was sent to 27 million households and cost £9.3 million of taxpayers’ money. In it the Government said:

“The referendum on Thursday, 23 June is your chance to decide if we should remain in or leave the European Union … This is your decision. The government will implement what you decide”.


We have to live with the results of our democratic choices. If Parliament and the Government were to renege on the commitment made by the Government in that document, I believe there would be a very serious crisis in our country.

Great political turning points in the national life are inevitably uncomfortable for the establishment. The political genius of the British establishment has hitherto been to accommodate itself, however reluctantly, to big, uncomfortable changes: Catholic emancipation, the Great Reform Act 1832, repeal of the Corn Laws, death duties, reform of the House of Lords in 1911, the welfare state and the loss of empire. The latest such challenge is leaving the European Union. Your Lordships’ House and the people who take the big decisions in government and public administration on behalf of the people should now be similarly prudent, constructive and magnanimous. We should not waste our energy in seeking to overthrow the democratic decision of the British people to leave a European Union that is discredited in the eyes of the majority and perceived as failing because of mass youth unemployment, deep inequalities and its undemocratic nature.

It is for the left to rediscover the generous patriotism of JB Priestley and George Orwell. Agitating for a second referendum is displacement activity. The real challenge is to revive the centre left and to get beyond the intellectual and political bankruptcy of social democracy in the period since 2008 and the global financial crisis. But if all the centre can now offer, 10 years after that moment, is to remain in Europe, voters will say, “These politicians don’t understand us, they don’t respect us and they have nothing useful to offer us”, and they will move to the extremes. If the respectable politicians do not engage with voters on these matters of the deepest possible concern then disreputable politicians will take our place. I heard a former Commissioner of the European Union on the “Today” programme criticise his former colleagues, saying that those in Brussels tend to live in something of a bubble. I hope that will not be said of your Lordships’ House.

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I have one last point, which I think is important. If Germany said that it wished to withdraw from the EU and the UK was one of the 27, it is very hard to imagine the UK providing the kind of easy exit it seeks for itself as those roles are reversed. I have in mind, as I think everyone does, the whole issue of Ireland—nothing to do with this amendment, perhaps, but a bellwether. Unless and until we know precisely what the Government’s view is about Northern Ireland, then for many people, not least those on the island of Ireland in the north and in the Republic, there will be precisely that uncertainty that has rightly been criticised in the debates already today. For these reasons, I have no doubt whatever that this amendment should command the support of your Lordships.

[Lord Hamilton of Epsom]

I was not really intending to get involved in this debate. However, the noble Lord, Lord Campbell of Pittenweem, has gone on about the canard that we do not know what the Government want out of the negotiations. He then explained to us what the Government want out of the negotiations: as easy a deal as possible. It is quite straightforward what the Government want. They want a free trade deal. They want to go on doing business with the EU in the way that they have in the past, with as little change as possible.

I hear your Lordships say, “But we’re not going to get that”. That is probably true, but that is because the EU is not prepared to give us that. It is prepared to suffer when it comes to its trade in goods—as it sells so much more to us—for the benefit of punishing this country, because for some reason the EU is such a wonderful organisation that you have to punish people who want to leave it. We voluntarily joined the EU; why can we not be allowed to leave it voluntarily without being punished? That does not say much for it, does it? This is one of the problems that the Remain campaign had during the referendum: what was the narrative that was so wonderful about staying in the EU? The fact that no narrative could be produced was one of the reasons why the Leave campaign won.

So let us not mandate the Government to doing x or y, as the amendment suggests. It is quite clear what the Government want. They want a bespoke free trade deal that carries on business as we have done in the past. It does not look as if we will get it but that is what the Government want, and mandating it will not make the slightest bit of difference.

[Lord Lea of Crondall (Lab)]

My Lords, I am very glad to follow the noble Lord, Lord Hamilton of Epsom. He spoke in rather a different tone from the previous speakers, my noble friend Lord Monks, the noble Baroness, Lady Wheatcroft, and the noble Lord, Lord Campbell, who have brought to this discussion what I might call a mature, thoughtful approach to a crisis facing this country that will become even more stark when we get to October.

A lot of people have mentioned today the relationship between the Lords and the Commons. I draw the House’s attention to a creative opportunity that we have right now in the light of the report published on 13 March by the Brexit Select Committee of the House of Commons, chaired by Hilary Benn MP. By a majority in some cases but unanimously in others, it has produced something pretty much like the sort of remit that I imagine will make sense in terms of the detail that one would present to Mr Barnier, who has his own remit. Perhaps I may pick out one or two points from it to give the flavour.

The noble Lord, Lord Hamilton, says it is obvious, and everyone knows, what the Government want. I think that, on a scale of one to 10, we know about only two or three out of 10 what is in the negotiating mandate. If we were to make a constructive contribution then, first, there would have to be something in the mandate because otherwise on what criteria would anyone, including ourselves, judge the outcome of the negotiations? I return to the analogy that my noble friend Lord Monks drew with trade union negotiations. The two things are analogous in some ways, though not totally. What you do not do is go into cloud-cuckoo-land at the start and say to the employer—on an industry basis or a company basis; it does not matter at the moment—“Here is our claim: double the pay, double the holidays, halve the hours and double the pensions”. There are two reasons why mature trade unions do not go down that route. First, you will not get what you have asked for, and what do you do when you come back to the executive? Does it call a strike? That would be a fantasy and it would not get anywhere. The second reason, of course, is that that trade union would not be taken seriously on the other side of the table. I know some trade unions can be satirised in that way, but then I suppose I could satirise Boris Johnson quite adequately if I put my mind to it.

With regard to the degree of specificity that is needed in a mandate at the moment, I shall read one or two of the proposals in the report of the House of Commons Select Committee. If the House of Commons is to be part of looking at a mandate, it does not matter who writes it down. The Government have yet to respond, by the way, to the report, which picks up a couple of points made by the noble Lord, Lord Campbell. I shall read just one or two:

“The border between the Republic of Ireland and Northern Ireland must remain open, with no physical infrastructure or any related checks and controls, as agreed in the Phase 1 Withdrawal Agreement”.


That is very difficult to implement, and things follow from it to do with the customs arrangement and the single market. If we are to get somewhere between cloud-cuckoo-land and the specificities, I must say to the noble Lord, Lord Hamilton, that there is no button to press that says, “Take back control. Job done”. This has taken two years of an educational exercise—we are in the middle of a huge educational exercise. Whether or not people argue in the pub about it—and some people do—the fact is that it is a very complicated matter, and it is now understood a lot more than it was at the time of the referendum. Let us try to see how people could understand it a bit better. Surely it would be good if there could be more transparency from the Government. I am sure they would get more respect in Brussels, Paris, Berlin and the rest if they could be franker than they have been so far—although we know the reasons why they cannot easily be franker at the moment and why Parliament needs to give them a nudge.

To give another example, on crime and terrorism, the report says that,

“arrangements must replicate what currently exists in operational and practical cross-border co-operation. In particular, the UK must retain involvement with Europol and the European Arrest Warrant and continue to participate in the EU’s information-sharing systems including SIS II”.

It goes on:

“Institutional and decision-making frameworks must be identified to ensure that the UK is able fully to participate in foreign and security co-operation with the EU, to meet the challenges it shares with its neighbours in the EU-27”.


Another example is:

“In respect of trade in goods, there must be no tariffs on trade between the UK and the EU 27”.


There are a dozen such propositions that would be highly desirable in an adult democracy, which has been a democracy for 1,000 years, or whatever it is. Surely that is the minimum that we can expect: a little more transparency, please. Then people would know that they were being treated as adults and take it from there. We have a huge problem with the credibility of where we are all headed in the continued mention of October this year. I am not saying that the idea that we can get to this place by October is impossible, but it stretches one’s imagination to see how all this will be done. A mark of our seriousness could be to make a proposition.

It is not a risk-free exercise for anyone, whatever their views, to put up a comprehensive proposition. The only way we can describe the arrangements from which we have to select is that they are all different trade-offs, or different package deals. Some people have seen a paper that a trade association produced on the different trade-offs on offer. The maximum at what you might call the remain end of the market would be something that does not look very different from where we are. Another, mentioned by my noble friend and increasingly the position of many industries, is to stay within the European Economic Area by moving from pillar 1, which is the EU, to pillar 2, which is EFTA, of which we were a member from sometime in the 1960s to sometime in the 1970s—a long time ago. It is an organisation that, on trade, works. No one doubts its position in the world. We must look at these practical alternatives. If we were to adopt the amendment, the House of Commons would find it a very constructive way forward to reach some accommodation, not only between the Lords and the Commons, which is a consideration, but between the Government and the people, as mentioned many times today. The amendment will provide constructive input, if the House will support it today.

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Offering reassurances on the Irish border and good intentions to finalise the detail of our future trade relationship are warm words, but having those warm words in some unspecified agreement after we have left the EU is liable to leave us in a very dangerous limbo indeed. In those circumstances, I believe Parliament would be justified in saying no and asking the Government to go back to the negotiating table—not to conduct negotiations and not even necessarily to set the direction of negotiations, but to go back to the table rather than fall off the cliff with no deal.

[Lord Hamilton of Epsom]

What evidence does the noble Lord have that you get a better deal when you go back to the table than the deal you have already got?

[Lord Reid of Cardowan]

The noble Lord may be able to predict whether it will be better or worse, but any deal that is acceptable to the British Parliament would be better than the disastrous situation of no deal at all. But that may need time. Why have an artificial deadline cutting us off from the conclusion of a deal, which may be there in the bones or, in the famous words of the Brexit Secretary, as a “platform”—and deny ourselves the opportunity of having the alternative of a cohesive deal rather than no deal, which I think would be the worst of all worlds? This is an opportunity that we should take.

A lot of the debate on Amendment 49 was about the ideological motives of those who are handling this. As my noble friend and occasional protagonist Lord Grocott keeps pointing out, I was a reluctant remainer. I was sceptical about the eurozone and the bureaucracy and unaccountability of the European Union, but on balance I wanted to stay in because all the challenges that we face are global: cyber, terrorism, trade and the environment. Being part of a larger bloc is, on balance, worth it. Therefore, my approach to this is pragmatic, not ideological. I admit to being confused by the ideological positions of the leaders of the major parties. We appear to have the leader of one party who is ideologically inclined to remain in the European Union but doing her best to get us out of it, and a leader of the other party who is ideologically inclined to remove us from the European Union who appears to be doing his best to keep us in part of it. I am confused about the ideologies that are supposed to be driving this on all sides of the House.

I believe that we should take what the noble Lord, Lord Cormack, called a common-sense position. It is possible that the vote on the final deal could be little more than a deal or no deal choice, where a rejection of the Government’s Motion would mean the UK exiting the EU with no deal on WTO terms, which would be the worst possible option for the UK. That is not according to me, in my lack of wisdom, experience, depth and analysis, but according to the Government’s own impact studies. I believe that we must insure against that, which is what Amendment 62 seeks to do.

The Secretary of State told the House of Commons that the agreement will deliver the “exact same benefits” as our EU membership. That is basically what the noble Lord, Lord Hamilton, said our objectives were. As it happens, that is also the commitment of the Opposition Front Bench, which has adopted it as one of its six tests. Amendment 62 simply safeguards this commitment by guaranteeing that we keep our current benefits until a withdrawal agreement has been reached that can match our objectives. As the noble Lord, Lord Cormack, said, it is a common sense, pragmatic amendment. It has no political motivation and no ulterior motive, other than the objective of preserving the best for this country. That is what this whole debate is supposed to be about.

It is my great pleasure to support Amendment 62. I am grateful to the noble Lord, Lord Cormack, for indicating that, if time constraints prevent us pushing this to a vote later tonight, we may come back to it at another stage.

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[Lord Hamilton of Epsom]

Is the negotiation with the EU not somewhat unique, because you are negotiating with 27 different countries?

[Lord Deben]

It is unusual to negotiate with 27 different countries, but I have negotiated with large numbers of different people on the other side. That is one thing that we just have to accept. It is, like anything else, a negotiation. If we think that it is so unique that we cannot do it, we should not have started the negotiation in the first place. It does not make any difference if you have a second negotiation: it is the same position that you had with the first negotiation. The fact that it is with 27 different countries makes no difference because it does not change from the first negotiation to the second. I do not think that my noble friend has a point on that.

The real issue is the fundamental fact: the amendment does not operate unless Parliament has voted in a particular way. The Government’s answer to the amendment must therefore be that they have a reason not to let Parliament continue to be involved after such a vote. The Government do not think that Parliament will take such a decision. They are very sure—and I have listened to government speakers again and again—that they will produce a result that will be cheered by Parliament. We will all be thrilled with what they have been able to achieve. I would be very suspicious if the Government’s answer is that they do not think they will get that sort of result and therefore do not want to get themselves into a difficult position. I am assuming that, whatever agreement they have, it will be a good one and this amendment will never come into operation.

The only reason for the amendment is to be a backstop for the circumstances in which the Government do not achieve what they tell us they can achieve and they therefore produce something that is so unacceptable that Parliament decides that it cannot accept it. The Government have to say, “What happens then?”. Unless they accept the amendment or some technically different one that suits them, their only answer can be, “We the Executive will decide”. That is why this is not about the European Union. It is about the powers of Parliament and it is why I am surprised at my noble friend Lord Hamilton, who was chairman of the 1922 Committee, who protected and defended the rights of Members of Parliament and who believes and believed in the nature of Parliamentary democracy. It is why I do not understand why this divides the House.

This should be something that both leavers and remainers—and those who wander between and those who are confused—all of us, should accept that we want Parliament to be in a position to accept and to decide. This will not work unless Parliament has decided that it does not want the agreed solution. The amendment will not come into operation unless that happens. Surely it is not too much to ask that the Government say, if we get to that point, that Parliament should have the right to ask the Government to go back and try again.