European Union (Notification of Withdrawal) Bill

Lord Hope of Craighead Excerpts

Monday 20th February 2017 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, my record in referenda has been mixed. Where I live north of the border I have taken part in three in recent years. I voted no in the referendum for devolution for Scotland in 1997, and the result went the other way; I voted no in the independence referendum in 2015, and the result fortunately went the way I voted; and I voted remain in the referendum last June—and as we all know, the result went the other way again. One out of three is my score so far, but my response to the result of all three is the same.

I recall clearly being challenged in this very place by a former Law Lord, Lord Wilberforce, when I spoke in a debate on the Scotland Bill, which followed the result of the referendum in 1997. With a genuine look of puzzlement on his face, he asked, “Why do you support devolution?”. “Because I believe in democracy” was my reply. These five words sum up the position that I find myself in now. Not only is there the result of the referendum itself but also the fact, as the noble Baroness the Lord Privy Seal reminded us, that there was a resounding majority in support of the Bill in the other place.

Therefore, however much I and the many, many others who have written to us during the past few days might wish that it were otherwise, I am convinced that there is no turning back. As it is, I confess to a keen desire to get on with the Article 50 process as soon as possible. I want to know where we are going. It has been made clear to us many times, particularly by the Minister, that the Government will not reveal their hand until notification is given and the process of negotiation is started. I am speaking only for myself, as I must do from this position on these Benches where all others speak for themselves, when I say that I find this acutely frustrating. I want the process to happen without delay so we can start focusing on the detail of the many issues of concern to us, both of substance and of procedure.

As for the wording of the Bill, its brevity calls to mind remarks made about legislation in a debate initiated by the noble Lord, Lord Butler of Brockwell, a few weeks ago: how good it is to find a Bill which says what it wants to say in as few words as possible; how good it is to have a Bill which does not have a Henry VIII clause—and, as the Explanatory Memorandum points out, there is no sunset clause, either. After all, the sun will scarcely have risen by the time the Bill’s purpose will have been spent. Is it too much to hope that the so-called great repeal Bill will measure up to those standards? Of course, this Bill leaves many questions unanswered on which we will wish to hold the Government to account. However, I do not see it as the function of the Bill to tie the Government’s hands before they proceed to invoke the article.

Let the Government have their Bill, I say. However, I would caution the Government against thinking that by introducing this legislation they have done all that the Supreme Court’s decision in Miller requires. Brevity is all very well but much more lies ahead. If passed, the Act will give the Government all the authority they need to give notification of the UK’s intention to withdraw from the EU under Article 50. That is what the Bill says. However, the notification does no more than start the Article 50 process. The article makes it clear that the process involves two more stages, both mentioned in the article: negotiation, and the concluding of an agreement between the Union and the state in question. The Bill says nothing about these two further stages. I do not think it needed to give the Government the authority to negotiate, as none of the rights of the people who have written to us will be affected or lost at that stage. However, the concluding of an agreement is another matter entirely. The Bill does not say anything at all about that stage of the process.

The White Paper—written, of course, after the Bill was published—now tells us that the Government will put the final deal agreed between the UK and the EU to a vote in both Houses of Parliament. That was confirmed by the Secretary of State in the other place on 7 February when he said that it was intended that the final agreement would,

“be approved by both Houses of Parliament”,

and that,

“this will happen before the European Parliament debates and votes on the final agreement”.—[Official Report, Commons, 7/2/17; col. 274.]

The timing is right, but obtaining approval by a resolution in Parliament is not the same thing as being given statutory authority to enter into that agreement—or, indeed, to withdraw from the EU if there is no agreement.

There is a respectable argument, which other noble—and noble and learned—Lords may say something about later in this debate, that only Parliament has the constitutional authority to authorise, by legislation, the concluding of an agreement with the EU or the act of withdrawal if that is what the Government decide that they have to do. As the Supreme Court said in Miller, at paragraph 123, a resolution of Parliament is an important political act, but it is not legislation and,

“only legislation which is embodied in a statute will do”.

That was why the court held that the change in the law that would result from commencing the Article 50 process must be made in the only way that our constitutional law permits: namely, through parliamentary legislation, which is where we are today. The argument that the Government may face is that the same reasoning must be applied to the final stage in the process, too. Even if there is some doubt about this, legislation would provide legal certainty. It would minimise the risk of further legal challenges.

All I am seeking to do is to caution the Government against thinking that this Bill on its own will give them all the authority they need, or that obtaining approval for an agreement by resolution is the same thing as being given statutory authority to conclude that agreement. They could have provided for that in this Bill, perhaps using the same formula as in Clause 1, by saying that the Prime Minister may conclude an agreement with the EU if the agreement has been approved by both Houses—but it has not done so. I must make it clear that I will not be asking for the Bill to be amended. Others may do so but, so far as I am concerned, it is up to the Government. My point is that they cannot escape from the effect of the Miller decision when we reach the end of the negotiation. It is all about respecting the sovereignty of Parliament. The law will see to that whatever the Government think, as it always does. I do hope that the Government will be sensible about this, and that further recourse to the courts will not be necessary.