European Union (Notification of Withdrawal) Bill

Lord Hope of Craighead Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord Oates]

No, I would not agree with that. Fascinating as it is for me to comment on what the noble Lord, Lord Kerr, said at Second Reading or otherwise, I will leave it to him to comment, but I do not agree that that would be the case.

Those who argued that the purpose of Brexit was to take back control and restore parliamentary sovereignty should have no problem with this at all. I would say with respect to the noble Lord, Lord Spicer, that the real irony is that people who talk so much about parliamentary sovereignty want to surrender it so easily to the Executive.

As the House will be aware, while the Liberal Democrats fully support this amendment and its objective of giving Parliament a real and meaningful say, we believe that, once Parliament has spoken, the people should have the final word in a national referendum. Noble Lords have different views on this subject but, whatever one’s view on the referendum, this amendment will ensure that we make real the promise to take back control and that our Parliament has real and meaningful oversight of the outcome of negotiations. I am very pleased to support the amendment.

[Lord Hope of Craighead (CB)]

My Lords, perhaps I can make my position clear. I think that we have four different attempts to find a solution to a problem that we are all looking for. For me, it would be neater if I made my points on Amendment 17, before others introduce their solutions. I am very much in sympathy with most of what appears in Amendment 17, but I share quite a lot of the difficulties that the noble Lord, Lord Howard, expressed, although perhaps not exactly for the same reasons. I will explain myself a little more.

At Second Reading, I made the point that there was a respectable argument that only Parliament has the constitutional authority to authorise the act of concluding an agreement with the EU or the act of withdrawal, if that is what the Government seek to do. For that reason, I respectfully suggest that it is in the Government’s best interests, for their own protection, to look for a form of words that will provide them with the answer to any possible challenge that might be made along lines that would impede progress towards a final agreement. It was with that view that I was searching for some kind of solution to the problem. I said at Second Reading that I would not seek to put forward an amendment myself and that it was more for the Government to try to find a way of doing it, which it is perhaps still open to them to do.

I will explain my views on proposed new subsections (1) to (3). As the noble Lord, Lord Pannick, has explained, the Government have given an undertaking. David Jones said in the House of Commons:

“First of all, we intend that the vote will cover not only the withdrawal arrangements but also the future relationship with the European Union. Furthermore, I can confirm that the Government will bring forward a motion on the final agreement, to be approved by both Houses of Parliament before it is concluded”.—[Official Report, Commons, 7/2/17; col. 264.]


There are three elements in that undertaking, all of which find their place in subsections (1) to (3) in the proposed new clause. However, I have to say that I have a quarrel with the wording. Clause 1 of the Bill, as I mentioned at Second Reading, is beautifully crafted in the simplest possible language. I am troubled by the fact that, if you cast the undertaking in the framework that you find in Clause 1, you can produce that undertaking in four lines instead of 16. Just from the point of view of the aesthetics of drafting, I would have thought that it would be proper to try to use the undertaking as a basis for an amendment. The amendment would be very simple: another four- line amendment, which would fit neatly into the character of the Bill. It would provide the Government with the protection that I suggest they need and would produce the answer to the point made by the noble Lord, Lord Pannick, with which I entirely agree, about the sovereignty of Parliament. I believe that the sovereignty of Parliament is absolutely paramount in reaching an agreement.

I do not want to elaborate on this point because I agree with everything that the noble Lord, Lord Pannick, said, apart from the wording, which I suggest might be more attractively put. As he might recognise, I am adopting a tactic that advocates adopt in court: if you are addressing a judge, trying to find a way of formulating your proposition, and the judge comes out with some form of words that is not exactly in accordance with it but is in accordance with what you are driving at, it is quite a good tactic to pick up his words, as it is more likely that he will accept your answer. I am just adopting that tactic, as we have this there on a plate before us. You draw together the two things: the language of the undertaking and the interest that the Government have in getting the thing in the Bill for their own purposes. The undertaking that the Minister gave in the House of Commons was not given lightly. We can all understand that it would have been carefully worded and approved by somebody a good deal higher up the line of government than the Minister who was giving it. It really is a gift to adopt those words and get it into the Bill in that language.

I respectfully suggest that it would be wiser to detach subsection (4) from subsections (1) to (3), because we can grapple with subsections (1) to (3) for the reasons that I have given, but subsection (4) raises problems. I do not want to go over all the ground but, through a simple reading of the wording, you can see immediately the difficulty that it runs into. First, it tries to combine two different situations, in that it talks about “the termination” or termination “unilaterally”. I presume that when it talks about termination the first time, this is where both sides are unable to reach an agreement and there is a complete breakdown between both sides. If that is the situation, I, for the moment, cannot understand what can be done. There is no point in coming to the Government and asking for it to be approved, because you cannot get back to the negotiation table. It is a Humpty-Dumpty situation: Humpty-Dumpty has fallen off the wall and you cannot put the bits together again. So I cannot understand that part of the amendment.

The second part talks about terminating unilaterally. Although I can understand what that situation might be, the problem is that subsection (4) requires the Government to come to both Houses for prior approval before they can do that. You can imagine a situation where the Houses say, “We are not satisfied, go back and have another go”, and then we have the neverendum situation that has been referred to—going round and round in a circle with no way out.

[Lord Hannay of Chiswick]

I am most grateful to the noble and learned Lord for giving way. I was following with great interest his ratiocination until he got to the point about neverendums. As the noble Lord, Lord Kerr, has made clear, there cannot be a neverendum, because the two-year guillotine comes down. The only way to get beyond the two-year guillotine—and this answers the point that the noble Lord, Lord Faulks, made—is by the agreement of all 27 member states and the United Kingdom. If the United Kingdom refuses a prolongation of the two-year period, then it cannot be prolonged. So can we please drop the references to neverendums and just address whatever problems the noble learned Lord has with the wording of subsection (4)?

[Lord Hope of Craighead]

I entirely understand the point that the noble Lord is making, but the trouble with subsection (4) is that it does not mention the two-year period—we do not know what period we are talking about. That is one of the problems with it. It does not think through to the factual situation that would arise in the situation that is being addressed.

I do not at all underestimate the importance of finding a solution to the point that this subsection seeks to address; I am in sympathy with it. I just say that it is not suitably worded and it should be rethought. It is for that reason that I suggest that we should not try to struggle to put the two things together. We should separate out subsections (1) to (3) and adopt my solution, which I need not repeat, as to how they might be simplified and made more attractive and then think again about subsection (4). We can find a way to address exactly the particular situation that it seeks—of separating out the unilateral termination from the bilateral situation—and then try to find ways of meeting that. I do not need to elaborate, but these are the points that I wish to make in broad sympathy with what Amendment 17 is seeking to achieve.

[Lord Howell of Guildford (Con)]

My Lords—

--- Later in debate ---

[Lord Howell of Guildford]

My Lords, I shall come at the amendments from a slightly different angle. It seems to me, listening to the debate, that those who have tabled them may not fully understand what goes on in the House of Commons, or what the nature of parliamentary sovereignty really is. As we know, and as Bagehot reminded us 150 years ago, it is actually the majority in Parliament at the time—or whoever can muster a majority—and the managers of the party or parties behind that majority, who seek to maintain the majority, get the Government’s business through and carry out the Government’s intentions.

I am totally in favour of maximum parliamentary involvement in this process, and I have been from the start. I am sorry that it had to go to the Supreme Court; I thought the Government made a mistake in not putting it openly and fully to Parliament from the beginning. I am glad the case went as it did and, peering into the next two or three years or however long it takes, I welcome the fact that all along the way Parliament will be heavily and continuously involved—particularly the Commons, but ourselves as well, of course. That is my forecast.

People say that Parliament should not involve itself in negotiation. I hear my noble friends say that, and it sounds very sensible. In practice, the daily newspapers, the media and Parliament will all involve themselves in negotiations. There will be leaks in every direction and constant debates. Motions will be moved in the House of Commons. The Government may deplore that or try to avoid it; the Whips may manoeuvre to try to suppress it but that will not happen. There will be a massive and continuous debate about this matter over the next two years. When we eventually get to the point where there is some kind of resolution—whether it is the divorce papers; the new relationship; a bundle between the two; or a single core of views with a long trail of dozens of different sectoral views and arrangements and complex and numerous regulations—Parliament will be deeply involved. Whoever has the majority in Parliament will be in a position to assert their will over it, to reject or accept it. It needs no statute law whatever in practice and Parliament will not need to authorise, criticise or reject any arrangements for the divorce and new relationships that Her Majesty’s Government seek to put before it. They will have to do that; the Prime Minister has undertaken to do so and it will happen. The arrangements will be extensive and complex and will have numerous bilateral elements.

This is where the puzzle grows greater. If, at that point, the Government cease to have a majority, lose control or there are too many rebels and a majority is formed against the proposals, which are then rejected, arrangements leading to a general election will be triggered. I am not sure how that works with the five-year rule but the rejection would be a vote of no confidence in the Government and would trigger, one way or another, a general election. So the people would have their say and that is what will happen. The supporters of the amendment seem curiously unaware that MPs, including Back-Benchers in all parties—both official and minor opposition ones—are perfectly capable of bringing whatever the Government agree to the Floor of the House of Commons and voting on it. Votes can be engineered on crucial aspects which, if they were central enough, could destroy the Government. They can bring matters to Parliament by well-tried procedural devices at any time during the negotiating period.

The elaborate amendments, which distinguished lawyers around me are discussing, are totally unnecessary and do not fit in with the way in which Parliament has evolved and worked over the last 200 years. We have the doctrines of Bagehot, the realities of parliamentary manoeuvres and Governments being brought down by people switching sides. All this has happened and may well happen again. To put it on the statute book is to create an absurdity. There is no need for any statutes to tell Parliament how to behave.

[Lord Hope of Craighead]

One of the points made by the Supreme Court is that it is legislation that provides the authority for the kind of exercise we are talking about. It is all very well having Motions on the Floor of the House, but legislation is the key. That is why I suggest the Government need legislation for the protection I mentioned at Second Reading. If it is in the Bill, we get legislative authority.

[Lord Howell of Guildford]

My Lords, if Parliament voted to bring down the process—the whole confection the Government had worked on and negotiated over two years—it would not need a law, just a majority. Three or four years ago, Parliament voted against the Government’s wish to mount military action against Syria. No one wrote a statute saying that we must not fire cruise missiles at Bashar al-Assad and no one needs a statute here. A majority may well move against this. It is quite possible that, over the years, the media view may build up that this is unacceptable, as the noble Lord, Lord Kerr, and others have rightly reminded us. Some reversal may happen half way through. The Governments of France, Germany and Italy are all likely to change and turmoil is about to take place in the European continent. The people we are negotiating with may well change completely in the next 18 months. All this could happen and would change the approach totally. At that point, whoever can muster a majority in Parliament and form a Government—until they are overthrown—can and will have their say. That is called the sovereign role of Parliament. That is the reality. We are moving around ideas of statutes, which belong nicely in the world of law but not in the world of reality—of parliamentary procedure, parliamentary history, parliamentary action or parliamentary will when MPs really get going. It is a different world down there and that should be understood by the supporters of these amendments, which are unnecessary.