European Union (Notification of Withdrawal) Bill

Lord Hill of Oareford Excerpts

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

[Viscount Hailsham]

My Lords, those who have put their names to the proposed new clause are not seeking to stand in the way of the Bill. Our sole purpose is to ensure that the outcome—agreed terms or no agreed terms—is subject to the unfettered discretion of Parliament. It is, in our view, Parliament and not the Executive which should be the final arbiter of our country’s future. Ironically, in this sense we stand with the campaigners for Brexit who wanted Parliament to recover control over policy and legislation. Incidentally, too, we stand in that long tradition of parliamentarians who have stood for the primacy of Parliament against ministerial fiat. In the old days, that was a contest fought on the battlefields; happily, more recently it has been fought in public debate. Of course, most recently of all it was fought in the law courts. This is a conflict that never ceases. Let us not forget that, had it not been for the judiciary, we would not be debating this Bill—oh no. It was the Government’s intention to trigger Article 50 under prerogative powers; that is, under the residual powers of the Crown.

It is absolutely central that we should determine the proper interpretation to be given to the referendum of last June. I acknowledge at once—albeit I was a remainer—that the referendum was much more than merely the advisory expression of public opinion. However, I do deny that it gave authority to this Government to leave the European Union whatever the cost, whatever the terms and whatever the prejudice. That cannot be the case because when the public voted last June, they did not—could not—know the outcome. In any event, the Government’s commitment to subject the ultimate decision to a vote of Parliament undercuts that very proposition.

I believe that the proper interpretation of the referendum is this: it is an instruction to the Government to negotiate withdrawal on the best terms they can get. But that raises an absolutely fundamental question to which this proposed new clause is directed. When the negotiations have crystallised and there are agreed terms—or, perhaps, no agreed terms—who determines the way forward: is it the Executive or is it Parliament? That is the old question we have to resolve. In my view, any believer in a democratic state has to say that the authority lies with Parliament.

In very brief reference to a second referendum, it may be that Parliament, two years down the track, will decide that it is necessary. It may be justified in doing so; the circumstances may well change. Say, in two years’ time, there is a clear change in public sentiment. Say, too, that Parliament recognises that fact. Is Parliament not then under a duty to test public opinion? I quote the noble Lord, Lord Taverne, who spoke earlier today. At Second Reading he said that only dictatorships,

“do not allow people to change their mind but in a democracy no decision is ever irreversible”.—[Official Report, 21/2/17; col. 243.]

I want to turn to the argument that has been advanced by my noble friend Lord Hill of Oareford, who is indeed a very old friend of mine. I say at once that I acknowledge his experience and authority, which are recent. His view, which I am sure will be adopted by the Government, is that if you give Parliament the kinds of powers contemplated by the proposed new clause, you will undercut the negotiating position of the British Government. I do not agree with that view. I share the view expressed by the noble Lords, Lord O’Donnell and Lord Kerr, both citing their own very considerable experience, that the existence of the argument that Parliament will never wear this reinforces rather than undermines the position of the negotiators.

[Lord Hill of Oareford (Con)]

One of my noble friend’s most endearing characteristics is that he cannot walk past a wasps’ nest without wanting to poke it with a stick. He has just succeeded. There are two points that I would ask him to reflect on, which we have already touched on in this debate.

The first—which my noble friend and, I think, all noble Lords, with a few exceptions, would agree with—is that this is going to be an extremely complex negotiation. Anything that adds to that complexity is strongly to be avoided, in my opinion. I do not agree with those who say that this is going to be very simple and we can sort it all out in a matter of time. This is going to be complicated, so we should keep things as least complex as we can make them. When I listened to the noble Lord, Lord Pannick, set out this amendment, it added to my sense that complexity and uncertainty is contained in it.

Secondly, regarding the effect this might have on the negotiation, does my noble friend agree that the argument some people use—that having a Parliament or a board behind you in a negotiation enables you to have a stronger position—normally applies when the board or the Parliament is adopting a harder line than the person negotiating? I have to tell your Lordships that our friends in Europe do read our debates and our media. They are highly intelligent, sophisticated negotiators. They know where people sit. When my noble friend says that it would not weaken our position, can he not see that there are indeed instances where it would weaken our position because it would make Parliament a player in the negotiation and add complexity to what is already going to be very complex?

[Viscount Hailsham]

My Lords, my noble friend has made a very serious point, which enables me to cut directly to the chase, to one of the points I was going to make. It is possible that my noble friend Lord Hill is right about this. There is sometimes a price to be paid for democracy. Indeed, that is the argument that underpins many of the assertions made by the Brexiteers. They argue that, yes, there may be a cost involved in withdrawal but it is more than compensated for by the recovery of democratic control. That argument also applies to the process of negotiation.