European Union (Withdrawal) Bill

Lord Hannay of Chiswick Excerpts

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

Whatever our party affiliation, our duty as parliamentarians is to our country and our conscience. Those who are privileged to serve in Parliament, whether in this House or the House of Commons, are the heirs of a very long and noble tradition that is fundamental to our liberties and must not be betrayed. It is our duty to assert the primacy of Parliament over Ministers. It is in that spirit and with that purpose that I beg to move this new clause.

[Lord Hannay of Chiswick (CB)]

My Lords, this amendment also bears my name and the names of other noble Lords. I will focus my brief remarks on the eventuality of the United Kingdom facing the prospect of leaving the EU in March 2019 without any deal having been reached between the EU and the UK on the terms of a withdrawal treaty, or on the framework for a new relationship between them. I will, too, set out a pretty compelling case for this eventuality to be covered if a parliamentary approval process is to be genuinely meaningful.

This House is no stranger to debate on the no-deal situation. When we considered the Bill authorising the Government to trigger Article 50 before the end of March 2017, we voted by a substantial majority for a meaningful process that covered the no-deal eventuality. The other House, where at that time the Government had a single-party majority, rejected that amendment, and we did not insist. We must, however, face the fact that this Government have never made any commitment to give Parliament any say on a no-deal outcome, although they have committed themselves—rather inadequately—to giving Parliament a say if a deal is struck. The rest of this amendment deals with those circumstances. In the no-deal scenario, there is a void—a vacuum. That is not really tolerable for such an eventuality.

I do not intend to speculate about what circumstances might give rise to this eventuality—that would be a bit of a mug’s game six months before the end of a negotiation. The Government seem to have put away their rather foolish mantra that no deal is better than a bad deal, which I welcome. Suffice it to say that until the final moment of the Brexit negotiations, no deal remains a possibility and needs to be provided for in any meaningful process of parliamentary approval.

On the substance of no deal, I say only that there is now a much wider understanding of the fact that it would be seriously damaging to our economy, as we fell back on WTO terms. The Business Committee of another place brought that out very cogently as recently as last week. There are plenty of other disadvantages outside the trade field if we were to find ourselves going over a cliff edge in March 2019, but this is not the occasion nor the time to have that debate about what the consequences of no deal would be. What needs to be debated today, and I hope decided, is to set out the fact, as subsection (8) of the proposed new clause provides, that Parliament and not the Executive needs to be the ultimate arbiter in such circumstances. I hope that we will establish that in this House at the end of this debate.

[Lord Wallace of Saltaire (LD)]

My Lords, my name is also on this amendment, and I wish to speak briefly on the role that this Chamber needs to play. We are a revising Chamber and we have spent some time looking at the detail of this extremely complex and important proposal to leave the European Union. We also have to be concerned with constitutional propriety, and we are rightly concerned that a referendum which was partly won on an argument to restore parliamentary sovereignty should not be allowed to lead to greater executive power.

As the noble Viscount, Lord Hailsham, said, the Prime Minister has promised that Parliament would be allowed a meaningful vote on negotiations once they are completed. The Secretary of State for DExEU has promised that the resolution presented to Parliament will cover both the withdrawal agreement and the terms for our future relationship with the EU. That should provide some reassurance against fears that most difficult issues are likely to be left for further discussion after the UK has formally the EU.

This amendment puts those promises into legislative form. It spells out the deadlines required to ensure that Parliament is permitted to scrutinise whatever is agreed in good time before the end of March next year. The amendment requires Commons approval by November 30 and Royal Assent by 31 January, and provides a backstop for ensuring parliamentary sovereignty if no agreement is reached by the Government by the end of February. The noble Lord, Lord Callanan, is quoted in today’s Daily Mail as saying that these are “false deadlines”. I hope that in replying as the Minister he will tell us, if these deadlines are to be disregarded, how the UK will get through the constitutional requirements for leaving the EU by the end of March 2019 and what deadlines he might propose instead.

We are acutely aware of divisions within the Cabinet and the Conservative Party about what form of customs arrangements ought to be acceptable. That is a fundamental issue which is not yet decided but which the Government ought to have resolved, at the latest, by the time that they triggered Article 50 some 18 months ago. In her Mansion House speech two months ago, our Prime Minister admitted that it is in Britain’s national interests to remain associated with many of the EU agencies that hard-line Brexiteers wanted to break away from. She promised in that speech a new security treaty with the EU, to ensure continuing co-operation in combating organised crime and counterterrorism, and a close partnership in foreign policy and defence. But we have been told almost nothing more since then about such important issues or about the compromises of sovereignty in the national interest which they would require. We risk a backlash from all sides when the terms for leaving are sprung at the last minute on an uninformed country.

Ministers have repeatedly assured us that negotiations are well on track, even though they will not tell us what they are doing, and that an agreement can be reached by October—in less than five months’ time. If that is true, this amendment offers no difficulties for the Government; if it is not true and the likelihood is that all that will be agreed by October is a loose statement of principles, with the hard details of our future relationship kicked down the track to be sorted out in the implementation period—as the Government like to call it—after we have left the EU, then Parliament needs to intervene. Leaving the European Union without a clear and detailed agreement on the future relationship would be a disaster for our economy, our foreign policy, our relationship with Ireland and our internal and external security. This amendment guards against that unfortunate outcome.

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[Lord Howard of Lympne (Con)]

My Lords, I have great respect for all the proposers of this amendment. It makes me all the more astonished that they should put forward a clause which could, and very probably would, lead to not one but several constitutional crises. I am reluctant to draw the conclusion that that is the purpose of the new clause, that that is the intention behind the new clause, that so determined are its movers to thwart the will of the British people to leave the European Union that they wish to provoke a constitutional crisis, but that is the perilous outcome to which this new clause opens the door.

My noble friend made a very fine speech, but the new clause which stands in his name goes far beyond the fine sentiments which he addressed. I shall concentrate on just two of its consequences. First, the new clause gives your Lordships’ House a veto on any agreement which the Government have reached and which the other place has endorsed. It is instructive to compare the wording of subsection (1)(b) of the new clause with subsection (3). We have not heard very much so far from the movers of the new clause about its precise terms, so it falls to me to draw your Lordships’ attention to those terms.

[Lord Hannay of Chiswick]

The noble Lord is giving us the speech he gave us in the Article 50 Bill, when it was indeed the case that the amendment then moved did not differentiate between the Lords and the Commons. If he looks at this amendment with care, he will see that there is a very clear differentiation and that it is only the Commons that has the right of decision; we have the right of consideration.

[Lord Howard of Lympne]

If the noble Lord waits until I have concluded my remarks, I think he will be better able to form a judgment about how careless I have been.

Subsection (1) of the new clause provides that the Government may conclude an agreement only if the draft has been approved by the House of the Commons and has been subject to the consideration of a Motion in your Lordships’ House. The Minister may have something to say about the circumstances in which such a Motion might be considered. It is not a point I intend to dwell on, although there is clearly a possibility that your Lordships may vote not to consider such a Motion.

Subsection (3) of the new clause provides that a withdrawal agreement may be implemented only if it has been approved by an Act of Parliament, and subsection (7) provides that that Act must have received Royal Assent by the end of next January, so the new clause expressly contemplates a situation in which the Government have reached an agreement with the European Union, the House of Commons has approved that agreement, but your Lordships’ House, simply by delaying the passage of the Bill beyond next January, could defy not only the will of the people but the will of the elected Chamber of Parliament. If that would not provide a constitutional crisis, I do not know what would.

The new clause goes on to provide a prescription about what would happen if such a situation were to arise. It proposes that the negotiations should be taken out of the hands of the elected Government of our country and be decided on a resolution of the other place and the consideration of a Motion in your Lordships’ House. I had the great privilege of serving in the other place for 27 years—not quite as long as my noble friend, but almost—and I have the greatest respect for it, but it is not a negotiating body. I do not believe it has ever taken that role upon itself, I do not believe it wants it and nor should it have it. I need hardly add that if this new clause were to become law, the situation would arise that it would immeasurably weaken the Government’s negotiating position with the EU and would make our Government and our country a laughing stock.

The truth of the matter is that, while a great deal has been spoken about the House of Commons—my noble friend talked about the House of Commons—at the end of the day the House of Commons will have its say and the House of Commons will have its way. The House of Commons does not need to be given any guidance by your Lordships’ House as to how it should go about its business. There are many ways in which the House of Commons can achieve that objective, and the House of Commons will do so.

This new clause is thoroughly and fundamentally misconceived. I am afraid that it illustrates the appalling lengths to which die-hard remainers are prepared to go to achieve their aim, and I urge your Lordships to reject it.

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[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, first, I thank all the contributors to this debate. It is right that we have taken the time to discuss it at length, because this amendment has potentially serious implications for delivering a successful Brexit. Of course, I understand why this amendment might look notionally appealing, at least—it triggers a greater role for Parliament should any of the deadlines set by the amendment pass without their terms being met—but let me be very clear; this is not an innocuous, measured amendment. It contains a number of constitutional, practical, legal and political difficulties, all of which we should seek to avoid if we are to leave the EU with the best deal possible, which is what the Government want to achieve. Indeed, this amendment would create a profound constitutional shift in terms of which branch of the state holds the prerogative to act in the international sphere, a point so well made by my noble friends Lord Lamont and Lord Howard and by the noble Lord, Lord Howarth, from the Labour Benches.

I do not suppose that those who are proposing this amendment are making this suggestion lightly, but I cannot support such a move, as I do not believe that it is in the best interests of the country to redefine the nature of our democracy in this way. It is a well-established feature of our constitution that the Executive represent the country in international diplomacy, and this constitutional arrangement exists for very good practical reasons. In any negotiation, there are judgments to be made as to what can reasonably be achieved. Those judgments can be made only by those engaged on the detail. It would be impossible for negotiators to demonstrate the flexibility necessary for an effective negotiation if they are stripped of their authority to make decisions. That will do nothing but guarantee a bad deal for the UK, which is something I hope we all wish to avoid. If the UK is to be a trusted and effective negotiator, with the EU or anybody else, the Executive branch must be competent to negotiate, just as they are competent to act on their own judgment in other areas of international relations. I speak in strong terms, because I want to demonstrate the seriousness with which the Government take this amendment, its implications and the precedent it will set.

The drafting of the amendment itself is of further concern. It states that a draft of the withdrawal agreement must be approved by the Commons before it can be concluded, but it is not clear what “conclude” means in this context. This may seem a lesser point but noble Lords will understand that we need legal certainty to ensure that the vote occurs at the right time in relation to the process of withdrawing from the EU. We would not want to end up in a perverse situation in which a vote must be offered while negotiations are ongoing, for instance. The vote must happen once the final text has been agreed. Until that point, there would be nothing for Parliament to vote upon, given that ultimately, of course, nothing is agreed until everything is agreed.

[Lord Hannay of Chiswick]

My Lords, I ask the noble Lord to be careful. He is a Member of the European Parliament and knows perfectly well what “conclude” means: it is the moment at which the two parties to an international agreement, having fulfilled all their constitutional requirements, notify one another that the thing can be brought into effect. There is no doubt about that.

[Lord Callanan]

I was a Member of the European Parliament, but I also know that the vote of the European Parliament is in effect a take-it-or-leave-it vote. They do not seek to bind the hands of the Commission negotiators either.

I also question the implications of this amendment on the public’s confidence in our democratic institutions. The scope of proposed new subsection (5) is extremely broad, giving Parliament the power to direct the Government on anything in relation to negotiations: casting back to last week’s debate, it does not even add an “appropriate” or “necessary” restriction. That means directions do not have to be just about negotiating tactics or objectives but could feasibly encompass delaying or thwarting our exit completely, which I believe is the motivation of many of the supporters of this amendment. We should think very carefully about how that could be perceived by the electorate. Such a situation would not be compatible with either the result of the referendum nor the commitments given by many parliamentarians to respect the result. I agree with my noble friend Lord Lamont that this amendment would set a range of arbitrary deadlines and milestones after which Parliament may give binding directions to the Government, up to and including an attempt to overturn the referendum result itself.

Does this give the Government the strongest possible hand in negotiating a good deal? I am afraid that it does not—in fact, the opposite: it would create a perverse negotiating incentive for the EU to string out the negotiations for as long as possible. It is not in the UK’s interest to hand the EU negotiators a ticking clock and the hope that the more they delay, the more they can undermine the position of the UK Government and create damaging uncertainty and confusion. I agree with my noble friends Lord Blackwell and Lord King, who made precisely this point. The amendment would bolster those who wish not to secure the best deal with the EU but rather to frustrate Brexit altogether—a point that was well made by my noble friend Lord Howard.

However, I do not wish my response to be misinterpreted. I do not make these arguments because I think that the Government are somehow not accountable to Parliament. Of course we are. We have made a number of assurances on this matter. For example, there are some who have argued that this amendment is necessary to ensure that there is a vote on the final deal after the negotiations have concluded. I disagree. As my noble friend Lord Dobbs observed, our commitment to that is very clear and is in the best traditions of Parliament. It was made at the Dispatch Box and confirmed in a Written Ministerial Statement and has been repeated many times since.

I will make that commitment once again: the Government will bring forward a Motion in both Houses of Parliament on the withdrawal agreement and the terms of our future relationship as soon as possible after the negotiations have concluded. In reply to the noble Viscount, Lord Waverley, this vote will cover both the withdrawal agreement and the terms of our future relationship, but we have not settled on the precise wording.