European Union (Withdrawal) (No. 5) Bill

Lord Howard of Lympne Excerpts

2nd reading (Hansard): House of Lords
Thursday 4th April 2019 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, it is a genuine pleasure to follow the noble Lord. He and I crossed swords many times in the other place, and I always emerged from those exchanges with a great deal of respect and a touch of affection for the noble Lord—but I regret to say that I disagree what he has said to the House this evening. The House of Commons and this House decided to delegate the decision on the future of our relationship with the European Union to the people of our country in a referendum. They did that without qualification. The question on the referendum paper was not, “Do you want to remain in the European Union if we can get satisfactory terms?” or, “Do you want to leave if we can get satisfactory terms?” Rather it was a clear question: leave or remain? The country delivered its verdict without qualification. It said, by a relatively small but clear margin, that it wanted to leave.

Parliament then voted to trigger Article 50 and did so without qualification. Article 50 meant that we would leave the European Union two years after the article was triggered. There was no qualification. It was not a question of our leaving in two years’ time if we could get a reasonable deal; it was that we should leave. That, I believe, is what we should have done last week, but we did not. That was because Members of both Houses of Parliament did not get the answer they wanted. There was a considerable majority in both Houses for us to remain in the European Union. After the result of the referendum, some Members of both Houses who had been in favour of the UK remaining accepted the verdict of the people in good faith. Some accepted it but tried to limit what they saw as the damage. They were reluctant accepters of the verdict of the people. Others—far too many, I fear—have sought to thwart, obstruct and reverse the decision of the people and have never really accepted the result of the referendum.

I believe we should leave the European Union without, if necessary, any overarching agreement. In the end, I was persuaded of the merits of the proposal put by the Prime Minister to Parliament for a third time and I would have reluctantly voted for it. However, the proposal did not achieve the support of Parliament. In those circumstances, I would leave without a deal, which is why in due course I shall vote against this legislation.

I do not want to repeat the points made very eloquently by my noble friend Lord Lilley in his speech today before he was cut off in his prime, but it is the case that we could leave. Preparations have been made on both sides of the channel for us to leave in relatively good order, and that is what I think we should do if the Prime Minister cannot achieve agreement to the terms she has negotiated. The former Governor of the Bank of England has suggested that we should do so with a six-month standstill. After we have left, we should agree with the European Union to trade with each other on the same terms. That is a sensible proposal and I would even go so far as to say that we should give each other 12 months in which to negotiate a satisfactory trading agreement. I have no doubt that if that step were taken, it would be perfectly possible to reach an agreement along those lines.

Given that, I speak against the Bill currently before your Lordships’ House. When the moment comes, I shall vote against it because I think we have to honour the result of the referendum, and the time has come for us to do so.

[Lord Cormack (Con)]

My Lords, is my noble friend saying that he will vote against Second Reading?

[Lord Howard of Lympne]

No, of course not. I accept the procedures of this House, but there will come an opportunity for us to vote on the merits of the Bill and at that stage I shall vote against it.

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[Lord Bilimoria]

Absolutely not. The noble Baroness, Lady Noakes, is here. She was a member of that committee, and I have sat on the committee with her. I was referring to other people. By the way, today’s running order was blessed by the Government. Could the Minister explain how they came to that?

Today, I was not proud of the behaviour of our House. At many stages I felt ashamed of the disgraceful behaviour that I do not think was befitting of the finest, highest-quality debating Chamber in the world. I asked one of our Members who has been here for nearly 50 years, “How bad is this compared with Maastricht?” He said, “Maastricht was a tea party compared with this”.

My noble friend Lord Pannick has clearly said that the Bill is not perfect. None of us says that it is perfect; it was rushed through at the other end. However, he and my noble and learned friend Lord Judge have already found a way of amending the Bill in Committee that will allow it to be effective and will prevent us reaching the cliff edge.

Before I conclude, I want to emphasise how much we need the Bill, because what has been agreed so far is nothing. If my noble friend Lord Kerr were here, he would say, “I wrote Article 50 in order for those two years to be used to agree a future relationship. The withdrawal Bill just becomes part of that, and then you leave after two years having agreed it”. We have not negotiated our future relationship. We have negotiated only three things: people, the backstop and money. And £39 billion out of a £2 trillion economy is absolutely not material in the long run; this big figure is actually not a material figure. What about the political declaration—the wish list of our future? Nothing has been negotiated at all: tariffs, customs, services, market access, regulation, financial services, digital, capital markets, intellectual property, movement of people, aviation, roads, maritime, energy, civil nuclear, data exchange, foreign policy, security, defence, space, cybersecurity or counterterrorism—

[Lord Howard of Lympne]

Would the noble Lord give way?

[Lord Bilimoria]

Do not ruin my momentum, please; I will give way in a second. Nothing has been agreed.

[Lord Howard of Lympne]

I have great sympathy with the point made by the noble Lord. Is it not a fact that it was the European Union that insisted on the sequencing of the negotiations and was not prepared to talk about the future relationship until the withdrawal agreement had been effected, contrary to Article 50?

European Union (Withdrawal) (No. 5) Bill

Lord Howard of Lympne Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Lord Goldsmith]

That was the view the House took on each of those closure Motions.

To deal with the substance, we oppose the amendment, essentially for the reason put forward by the noble Lord, Lord Pannick—that we should not send this Bill back with constraints on the other place. What will then happen is for the Prime Minister and the other House to determine, but I urge the noble Baroness not to press her amendment.

[Lord Howard of Lympne (Con)]

The noble Lord says we should not put constraints on the other place when we consider these amendments. Has not the argument been put forward many times from the Benches on which he sits that we should take into account the extent of the majority in the other place for any legislation we are considering? I cannot recall a narrower majority than the one by which this Bill was passed in the other place.

[Lord Goldsmith]

I will not attempt definitions of words; I am a lawyer, not a grammarian.

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[Lord Pannick]

I entirely accept that.

It is necessary to have legal certainty on the retention of the Prime Minister’s powers on such an important matter. That is why the noble and learned Lords, Lord Judge and Lord Goldsmith, the noble Baroness, Lady Ludford, and I have all put our names to Amendment 7.

[Lord Howard of Lympne]

My Lords, I have listened with care to the speeches of the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, and the intervention from my noble friend Lord Hailsham. I do not have my noble friend Lord Forsyth’s advantage because I have the misfortune of having trained and practised as a lawyer, so I am in that difficult circumstance. I am confused by the exchanges that have taken place. I draw only one inference from them: this appalling piece of legislation is totally misconceived. It seeks on the one hand indubitably to constrain the exercise of the royal prerogative by the Prime Minister. That is its main purpose. Now we have amendment after amendment that seek to persuade us that it is only in some circumstances that the royal prerogative should be constrained and that in others it is absolutely necessary because, as the noble Lord just said, the Prime Minister must be able to make use of the royal prerogative when she is involved in negotiations of this kind. It is negotiations of this kind that the Bill is all about.

The fact is that the Prime Minister will be involved in negotiations about the date on which we exit the European Union, the conditions in which we do so and any terms that might be sought by the European Council to limit the extent to which we might be able to act in accordance with the result of the referendum. The Prime Minister will be engaged in negotiations of that kind. She ought to be able to exercise the royal prerogative when she engages in those negotiations, as the noble Lord said a moment ago. This ludicrous Bill, which seeks in part to restrain the royal prerogative and then to subtract from the extent to which it constrains it, is wholly misconceived and should never reach the statute book.

[Baroness Ludford (LD)]

My Lords, perhaps I could assist the noble Lord, Lord Howard, to see this situation in a different light when it comes to the European Council on Wednesday: as a happy blend of parliamentary accountability and government flexibility. I agree with the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, that the combination of Amendments 5 and 7 supplies both legal and practical certainty. They perhaps take away the complication that might be in the minds of the Council on Wednesday night about what happens if the Prime Minister proposes or agrees to a different extension to what is being discussed in the other place.

The noble and learned Lord, Lord Goldsmith, is also right that there could be some discussion about the difference in wording between Clause 1(7), about a proposal, and a scenario of agreement by the Prime Minister at the European Council. We need to remember that the specific context that is being addressed by Amendment 7 is envisaging what happens in those negotiations at the European Council. Like the noble and learned Lord, I look forward to the response from the Minister—

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[Baroness Ludford]

I was reflecting the position and view of my colleagues in the other place. As I said, in principle, we prefer the affirmative procedure. However, I would also prefer to avoid the catastrophe of no deal. Therefore, it would be ridiculous for us to get to the end of week and be prevented from amending exit day by the inhibitions of procedure. I take the point that negative procedure can be prayed against but that risk is relatively minimal.

It is true that Clause 2 is headed, “Procedure for ensuring domestic legislation matches Article 50 extension”. If the Article 50 extension has been agreed to, it is in EU law. I remember the Government being slightly coy two weeks ago in acknowledging that EU law trumps domestic law. Our amending exit day to accord with the date of an extension is an essential tidying-up exercise in domestic law; otherwise, discordance between the two dates leads to uncertainty. It is essential that exit day accords with the Article 50 extension.

[Lord Howard of Lympne]

The noble Baroness was rather dismissive a moment ago about the inhibitions of procedure. Is this whole Bill not designed to put such inhibitions in place? That is what we are discussing. That is what it is all about.

[Baroness Ludford]

I have talked about the specific context. If we get to the end of this week, it would be absurd for us to be prevented from preventing no deal because of the need for an affirmative resolution. That is a very specific scenario which justifies the negative procedure in this case.

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[Lord Wallace of Saltaire (LD)]

My Lords, I have been thinking hard over the past few weeks about the meaning of parliamentary sovereignty, which was one of the things that the leave campaign strongly campaigned to restore. Last week, I was struck to hear Mr Jacob Rees-Mogg in the other place defend the relationship between the Government and Parliament at the time of Henry VIII as the most appropriate relationship between monarch and Parliament. Oliver Letwin replied that we had fought a civil war a century later to establish a proper relationship between the Executive and the legislature.

Much of what we are doing in this Bill is not entirely ideal. We need not have had this Bill if the Government had been more united, if negotiations had been expedited and if Parliament had been more actively engaged at an earlier stage. We are now up against a tight deadline and we have to take some emergency measures. That is where we are and we need to recognise that.

[Lord Howard of Lympne]

I wonder if the noble Lord might add this to the conditions in which this Bill would have been unnecessary: if Parliament had been prepared to respect the result of the referendum.

[Lord Butler of Brockwell]

My Lords, I understand the misgivings that many in this House have about this Bill, but I have to say to the noble Baroness that her amendment would not stop the Bill becoming an Act. It is going to become an Act, and that is the mischief, so she cannot stop through her amendment the mischief that she wishes to stop. As the noble Lord, Lord Pannick, said, the Bill ceases to have an effect, so she need not worry about that either.

There is another reason why we should not pass this amendment: with the amendments we have passed so far, supported by the Government, they will be supported in the House of Commons, and so we will not have ping-pong. If we were to pass the noble Baroness’s amendment and the Government resisted it in the House of Commons, the Bill would have to come back here and there would be further delay. Therefore, I urge her not to press her amendment, because it is unnecessary and it will cause unnecessary prolongation of the procedures.