Article 50 (Constitution Committee Report)

Lord Hannay of Chiswick Excerpts

Tuesday 22nd November 2016 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, the two reports we are debating deal with matters of the greatest significance for our nation’s future as we prepare to leave the European Union. Others have underlined their importance. I could not put the matter better than it is put in paragraph 2 of the first of those reports—that of the Constitution Committee. It stated:

“Constitutional change of such magnitude must be approached carefully and scrutinised appropriately, with the roles and responsibilities of both Government and Parliament set out clearly in advance”.

It is a pity that the Government have so far declined to do that—but it is not too late to remedy the omission. I hope that the Minister will begin this evening and that the Government will, in the weeks ahead and before the deadline they have set for triggering Article 50 before the end of March, do precisely that—whether or not they are compelled to do so by a ruling of the Supreme Court. If most of my remarks today relate to matters on which I do not entirely agree with the reports, or to querying omissions from them, that does not detract from my view that they are both excellent analyses, for which the House owes both committees a debt of gratitude.

I do not want to dwell at length or in detail on the question currently before the Supreme Court as to whether the Government are entitled under the royal prerogative to trigger Article 50 without Parliament’s say-so; it would be better to await the court’s ruling. But it is surely supremely ironical, as several other speakers have said, that so many of those who campaigned for us to leave the European Union and their raucous supporters in the press, who asserted that only in this way could the sovereignty of Parliament be restored, are now lining up to support bypassing Parliament in this matter. It is, perhaps, too much to hope for logic and consistency in politics—but this pushes the outer limits of inconsistency rather a long way.

On the question of the potential revocability of Article 50, I really do not know on what basis the Government have stated so categorically that reversal is impossible. Since Article 50 is completely silent on the matter and neither says that it is possible nor that it is not, it would seem to be a rather heroic assumption; something that Sir Humphrey might well have told his Prime Minister was, “Very, very courageous, Prime Minister”. I contest, however, the suggestion in the report that the question of revocability is primarily a legal one. I believe that if the circumstances were to arise in which the UK wished to withdraw its triggering of Article 50 it would be and would be seen to be a predominantly political matter, to be handled politically by all concerned, not simply passed on to a court.

As to the manner in which Parliament might authorise the Government to trigger Article 50 through primary legislation, a resolution or Motion—the three options set out in the Constitution Committee’s report—I was rather puzzled to find no reference to a quite recent precedent which, although it may not be identically analogous to present circumstances, was surely close enough to be of some relevance. This precedent was the procedure followed in 2013 and 2014 when the Government wished to trigger the provisions of Protocol 36 of the Lisbon treaty that allowed the UK to withdraw from all the European Union’s pre-Lisbon justice and home affairs legislation and at the same time negotiate to rejoin 35 of the most significant measures.

Those two issues were brought before both Houses in the form of an amendable resolution. Triggering and rejoining were approved by both Houses—although admittedly the Commons took rather longer to approve the rejoining than we did. The Government then negotiated the rejoining package with the Council and the Commission—reporting to Parliament from time to time—and returned to Parliament with the modestly changed outcome which was approved, as were the necessary changes to our domestic legislation to give effect to that outcome. The protagonist of that procedure was none other than the Home Secretary who, strangely enough, was called Theresa May. Might it not be wise for the Government to give some consideration to that precedent just in case they do not win the day in the Supreme Court?

One matter that gets aired rather frequently—this is a quite different matter—is the contention that for the Government to set out their broad approach to the Brexit negotiations as part of the triggering process would undermine or fundamentally damage their capacity to negotiate effectively. That simply does not stack up. It does not match the reality of negotiating in Brussels. Whatever opening statement we make at the outset of the negotiations will immediately be in the public domain. The concept of negotiating confidentiality when you are dealing with 28 Governments and several European institutions is simply not credible. Is Parliament—the two House of Parliament here—to be the last to be told about that opening position? Is it to be the only participant not to have a chance to comment on the Government’s broad approach?

No one is suggesting that the broad approach should be spelled out in minute detail. That will be a matter for the negotiations themselves. Let us hope the Government will come to see the advantages. My noble friend Lord Kerr of Kinlochard set them out very fully, in particular the desirability of giving more prominence to the areas where we want to continue working intimately with our European partners. He named three areas: justice and home affairs, science and co-operation, and a common foreign and security policy. There are real advantages if we spell them out in advance, not disadvantages.

I have one final point. There was a proposal in the European Union Committee report—which the noble Lord, Lord Boswell, so eloquently introduced—that this House should establish its own Brexit committee. What on earth has happened to that? Surely this makes the most obvious and simple sense. Why is it not being taken forward? Why are we allowing the other place to steal a march on us? After all, it set up its Brexit committee about a month ago. I hope the Minister will be able to respond in some measure to the points that have been raised. As I said in another of our rather frequent debates on Brexit, it really is getting just a little bit tedious and frustrating simply to be sending notes up the chimney to Father Christmas.

--- Later in debate ---

[Lord Bridges of Headley]

I think I did answer that point. I am sorry to say that some comments in the media can at times be sensationalist, but at the same time, we obviously want to respect the freedom of the press. Above all, in this case, I concur with the thrust of the noble Lord’s point: we absolutely must respect the rulings of the Supreme Court in this case and the independence of the judiciary. Respecting the rule of law and abiding by due process also means respecting our obligations and responsibilities as a member of the EU up until the day we leave, and respecting parliamentary precedent and procedure as regards the legislation that we shall need to pass as we leave the European Union.

With those principles in mind, I shall approach the issues we are debating under two broad headings: first, the process we are following, up to and including the triggering of Article 50; and secondly, the process that will follow. Let me first, very briefly, chart the democratic process that has been followed so far to leave the European Union, which my noble friend Lord Hunt referred to, in an attempt to bring out the interaction between representative and parliamentary democracy on the one hand, and direct democracy on the other.

In 2013, as your Lordships will remember, the then Prime Minister announced that if a Conservative majority Government were to be elected, they would deliver an in/out referendum—a policy which was in the Conservative Party manifesto. The people voted for that Government, and MPs then voted—by a majority of six to one—to hold a referendum. In the referendum campaign, the Government made it clear that they would respect and implement what the people decide. The referendum itself delivered a bigger popular vote for Brexit than that won by any UK Government in history. The people have therefore voted twice: once for a Government to give them a referendum and then in the referendum itself. Parliament voted to give them that referendum without any conditions attached as to the result.

I heard what my noble friend Lord Higgins and the noble Earl, Lord Sandwich, said about their being non-believers in referendums in our parliamentary democracy, but that argument was meant for when Parliament and this House were debating the referendum itself. I hear what has been said but think that it is now an argument for another day.

Regarding the role of referendums in our parliamentary democracy, I think that my noble friend Lord Lang quoted that noted jurist and constitutionalist, AV Dicey. I too would like to quote AV Dicey. Back in 1911, he wrote that the referendum is the only institution that could,

“give formal acknowledgement of the doctrine which lies at the basis of English democracy—that a law depends at bottom for its enactment on the consent of the nation as represented by its electors”.

The referendum, he wrote,

“is an emphatic assertion of the principle that nation stands above parties”.

I turn now to the actual process of triggering Article 50. It is the rule of law—the principle that I referred to earlier—that has guided the Government’s approach. I am certainly in agreement with paragraph 9 of the Constitution Committee’s report: Article 50 is the only lawful route through which the United Kingdom can leave the EU under the treaties. As a matter of policy, the Government’s view is that, once given, our notification will not be withdrawn. We are committed to leaving in accordance with any legal and constitutional requirements that may apply. The Government have outlined their case and what we believe is the right and proper process to leave the EU under domestic law following established precedent with regard to international affairs.

As your Lordships will know, we have argued that triggering Article 50 is a prerogative power and one that can be exercised by the Government. It is constitutionally proper to give effect to the referendum in this way. As such, we disagree with the judgment of the High Court in England and Wales and are appealing that decision. The Government therefore await the final decision by the Supreme Court and, as I have said, we will abide by its decision. Let me repeat once again: the Government fully respect the independent role of the judiciary in deciding those cases.

I hope your Lordships will understand if I refrain from entering any further into the specifics of the ongoing legal challenge. There will be a hearing in the Supreme Court beginning on 5 December. It is expected to last four days, and a judgment will be reached in due course after that. But whatever happens in the Supreme Court, there will be further parliamentary scrutiny before Article 50 is triggered. We have been making time available for a series of Brexit-themed debates in the other place and in this place which will allow Parliament to make its views clear on a variety of topics. We welcome this House’s likewise debating this but I also note—how could I not?—the recommendations in the report and the numerous contributions made from all sides of the House today regarding the Government’s approach to the negotiations and the scrutiny of our position before those negotiations —or stage 1, as the noble Earl, Lord Sandwich, called it—and furthermore, as he rightly said, the application of the lessons learned from the debates held in this place and the other place and the extensive consultation that the Government are having with business. There were a number of powerful contributions on that point, especially from the noble Lords, Lord Kerr, Lord Teverson, Lord Maclennan and Lord Hannay, and the noble Baroness, Lady Suttie, to name just a few. Naturally, when we trigger Article 50, we want people to be aware of our overall approach, not least to give as much certainty and clarity as we can, and to build a national consensus.

I am sorry to disappoint the noble Lord, Lord Kerr —one of his balls is disappearing into a hedge. I am sorry that all I can say at this stage is that we have noted the calls for this and we will consider the best approach, taking into account what has been said in today’s debate and in the Select Committee’s report. The issues around Brexit, as I have said at this Dispatch Box before, are indeed highly complex, as the noble Baroness, Lady Hayter, said. They deserve very careful consideration, including as the Government continue to consider the customs union.

One of the issues raised in a number of noble Lords’ speeches is, for example, a transitional arrangement. I and my ministerial colleagues are fully aware of this issue in discussions that we have had with representatives of the financial services sector and of other industries right across the board. We have said that we wish the process of Brexit to be as orderly and as smooth as possible—a point which my right honourable friend the Prime Minister repeated at the CBI yesterday. We very much hope that our European partners will also see such an approach as in their interest too, as trade is obviously two-way. I assure your Lordships that we are looking at this issue among all the others that have been raised.

I would also like to address the point that a number of your Lordships made, including my noble friend Lord MacGregor—the position of EU nationals in the UK and UK nationals there. I would draw his and your Lordships’ attention to what the Prime Minister said at the CBI yesterday—that she wants an early agreement in the status of UK nationals in Europe and EU nationals here.

As regards the process of drawing up our negotiating position—

[Lord Hannay of Chiswick]

I wonder if the noble Lord could come back yet again to a suggestion that was made in this House several times but that the Prime Minister did not cover, which is to say clearly that we on our side—the United Kingdom—will not call into question the rights of EU citizens in our country unless anyone else does that to our citizens. If we were to say that, it would make it quite clear, beyond peradventure, that we were not going to raise that issue in a negative sense. Why cannot we say that?

[Lord Bridges of Headley]

I hear the point that the noble Lord makes with his considerable experience. All I would say is that the Government’s position is clear and, as I said, the Prime Minister wishes to have an early agreement on this issue. I cannot go further than that right now.

I would like to go on to refer to a couple of points that the noble Baroness, Lady Suttie, and the noble Lord, Lord Maclennan, made about the involvement of the devolved Administrations in the process of establishing our negotiating position. As has been said before, we will give every opportunity for the devolved Administrations to have their say as we form our strategy and we will look at suggestions that they put forward. As regards mechanism, the joint ministerial committee has been set up to enable discussions with devolved Administrations and government and has started to meet.

I turn to parliamentary scrutiny once Article 50 has been triggered. There are three strands of activity that I am sure Parliament will wish to scrutinise: the process of the negotiations themselves, the outcome of those negotiations and the passage of the great repeal Bill.

I start with the scrutiny of the negotiations. I welcome the fact that your Lordships, especially the Select Committees, are thinking hard about how your Lordships can co-ordinate scrutiny of my department’s work and the negotiations overall. Clearly, the Commons Select Committee for Exiting the EU as well as your Lordships’ EU Committee and its sub-committees will play crucial roles. But as the EU Select Committee report highlights, the issue of what information should be made available, and when, is a matter that we clearly need to agree upon. We have committed as a Government—and I commit again here—that Parliament will have access to at least as much information as members of the European Parliament. That is a point that my noble friend Lord Higgins referred to, as did the noble Earl, Lord Kinnoull, and the noble Lord, Lord Beith.

The EU Select Committee’s report goes into helpful detail in exploring what information the European Parliament will receive. I am very grateful for that. I assure your Lordships that my ministerial colleagues and I are considering the mechanisms for transmitting this information in such a way as to ensure that there can be timely debate and scrutiny on the negotiations, while at the same time ensuring that complete confidentiality can be maintained. For example, we are closely watching the recently opened TTIP reading rooms to see what the advantages and disadvantages of this approach are. Of course, we do not yet know the extent to which the previous and most relevant precedents will be followed by the institutions of the EU, not least because there is no direct precedent for an exit negotiation of the kind that we are about to enter into, so we do not yet know precisely what level of information the European Parliament will receive. However, your Lordships should be in no doubt that we will honour the commitment that my right honourable friend the Secretary of State gave to the committee.

The noble Earl, Lord Kinnoull, referred to the role of Select Committees in this House and the co-operation between them. I am aware that the Senior Deputy Speaker—the noble Lord, Lord McFall—and the Liaison Committee, which he chairs, have been on the front foot in seeking to ensure that the work of your Lordships’ committees benefits from closer than normal communication and co-operation between committees. He has established an informal forum in which the chairmen of the relevant investigative and legislative Select Committees will share notes to try to avoid unnecessary duplication of effort. The Government stand ready to lend their assistance to this forum, as well as to continue to talk directly to the committees themselves, when called upon to do so. I will certainly reflect on the noble Earl’s points about the media and communications.

As regards the end of the negotiations, as I have said before, the Government will observe in full all relevant legal and constitutional obligations that apply. The precise timing, terms and means by which we leave the EU will be determined by the negotiations that follow the triggering of Article 50. The Government, though, are very clear about the obligations of the Constitutional Reform and Governance Act 2010. That Act is clear that both Houses of Parliament have a role in approving treaties as set out in the Act, which is a point my noble friend Lord Inglewood raised.

The noble Lord, Lord Beith, referred to the great repeal Bill. This will be a significant piece of legislation. As with any legislation, parliamentary scrutiny is invaluable, and it will certainly be invaluable on this. We are indeed considering the very best approach to ensure that Parliament, including the various committees, has the appropriate opportunities to scrutinise the Bill. We will set out the content of the Bill in due course and the best approach to involving Parliament in a meaningful way in what will be a very important piece of legislation.

There are a number of other excellent points in these reports which bear close consideration. My noble friend Lord Balfe and others talked about the role of this Parliament and others in creating close links with the European Parliament. I should mention that my right honourable friend the Secretary of State was in Brussels today talking to MEPs. I entirely endorse the points that were made in the committee’s report about the role that Parliament can play in this process.

The electorate’s decision to leave the European Union was indeed a pivotal moment in our nation’s history. As the noble Baroness, Lady Smith, said last week, the role of Parliament is clearly not to block Britain’s departure but to scrutinise the steps that the Government now take in delivering it. The issue at hand is the balance we strike between, on the one hand, transparency and accountability, and, on the other, protecting the national interest and not binding the Government’s hands. Getting this balance right is something that the Government are completely focused on. From this debate, I know that your Lordships are very mindful of that. Each of us knows the responsibilities that we have in this House to kick the tyres of government policy, which may be uncomfortable for those of us standing at this Dispatch Box. But each of us also knows that, as Members of an unelected Chamber, there are limits to what we might do. In the weeks and months ahead, I am sure that your Lordships will reflect carefully on getting this balance right, as the Government most certainly will do.

I remain committed to working with your Lordships and involving this House as much as we can in the months ahead. I once again thank all those who have spoken tonight, and I thank above all those who have contributed to the work of the committees for their contributions to the debate. I am sure that there will be more to come.