Article 50 (Constitution Committee Report)

Lord Hunt of Wirral Excerpts

Tuesday 22nd November 2016 Lords Chamber

[Lord Hunt of Wirral (Con)]

My Lords, I declare my outside interests as set out in the register and in the fourth report of the Select Committee on the Constitution, of which I am a member. I join my noble friend Lord Lang of Monkton in commending this report warmly to the House. I pay particular tribute to our clerk, Antony Willott, and his entire team, all of whom did a first-class job, ensuring that we heard all the necessary evidence and marshalled our arguments effectively. The fourth report of the European Union Committee, which has just been introduced by the noble Lord, Lord Boswell of Aynho, is also an excellent piece of work.

The House does not need me to remind it that we are in extremely choppy waters and largely uncharted waters at that. In the run-up to the referendum it soon became abundantly clear that a substantial majority of parliamentarians in both Houses felt that it would be in the best interests of the United Kingdom to remain within the European Union, but the people of the country were not persuaded. Much has rightly been made of the fact that the referendum was technically consultative and not binding, but that was done deliberately and after much thought, and it was approved by Parliament. That was not an accident. It was done in my view not to empower Parliament to ignore the will of the people but to ensure that Parliament should continue to play a vital historical role in safeguarding the national interest whatever the result of the referendum.

I join my noble friend in quoting from paragraph 24 and the reference to how constitutionally inappropriate it would be for the Executive to act on an advisory referendum without explicit parliamentary approval. The big decision of whether to remain within the political institutions of the European Union was handed to the people of the United Kingdom, but it was never intended to change the fundamental nature of our delicate constitutional balance, which has evolved over centuries. Indeed, one of the most powerful arguments on the leave side was that we need a reassertion of the authority and role of the United Kingdom Parliament in our national life.

On 3 November the High Court issued its judgment on the so-called Brexit case, and I join my noble friend in regretting the rough and tumble that that judgment received in the press the following morning. As various Ministers have subsequently reaffirmed, a free and independent press is an important element of our way of life, but so too is an independent judiciary and it should never be unfairly traduced for doing its job when others have demanded that it should. For many of us, the coverage of that judgment was both unfair and personally unkind. The key part of the judgment is set out in paragraph 5 where the High Court said:

“It is agreed on all sides that this is a justiciable question which it is for the courts to decide. It deserves emphasis at the outset that the court in these proceedings is only dealing with a pure question of law. Nothing we say has any bearing on the question of the merits or demerits of a withdrawal by the United Kingdom from the European Union; nor does it have any bearing on government policy, because government policy is not law”.

That statement is accurate and it puts paid to any suspicion voiced by some that the High Court was actively and inappropriately engaged in seeking to extend its remit.

Even I believe, however, that this state of affairs is a matter of some regret. The Government and Parliament were more than capable of working this out for ourselves, as these two excellent reports demonstrate. There is no criticism of anyone in this, but the involvement of the courts is an unnecessary sideshow as we all seek to protect the best interests of the nation at a time of great uncertainty. In responding to that judgment the Secretary of State, David Davis, stated:

“To leave the European Union was the decision of the British people. It was taken after a 6:1 vote in this House to put that decision in their hands. As the Government told voters: ‘This is your decision. The government will implement what you decide’—no ifs, no buts. So there can be no going back; the point of no return was passed on 23 June”.—[Official Report, Commons, 7/11/16; col. 1255.]

Whatever my views were in the run-up to the referendum, I can only agree with and echo the Secretary of State’s words now. I also agreed with the crucial point made in another place by the Prime Minister on 24 October, when she said:

“The UK is leaving the EU, but we are not leaving Europe, and we are not turning our backs on our friends and allies”.—[Official Report, Commons, 24/10/16; col. 26.]

The question now therefore is how best to proceed and how best to ensure that the national interest is protected as we move forward to a future outside the structure of the European Union. Perhaps I am just cautious by nature but, so far as the interests of British business are concerned, I strongly feel that we in this place need to think long and hard about how to deal with the customs union and the single market—which I remind many of my colleagues on this side was largely the invention of a Conservative Government led by the late Margaret Thatcher.

As my declared interest, I disclose a long-standing connection with the world of financial services, particularly with insurance. I believe that the UK insurance and reinsurance sector is the jewel in our crown, bringing much-needed stability to businesses, individuals and families, and in times of crisis to the economy as a whole. I must tell this House that there is considerable concern in the insurance sector and the crucial broking community about the terms of our departure from the European Union. More than 2,750 UK insurance brokers passport out to the EU and more than 5,700 passport in. The UK is the leading general insurance market in Europe. Members of the Association of British Insurers wrote around £3.6 billion using EU branches last year. For us to maintain this position, many colleagues in the wider insurance sector have told me in no uncertain terms that it is vital that they should be able to continue trading freely in the European single market once we have left the EU.

That is why I hope that Ministers will seek to secure an agreement on transitional arrangements for financial services before that definitive new trading agreement with the EU is negotiated. It is unlikely that a reliable agreement on passporting arrangements could ever be agreed in a short, two-year period. I would go further: surely we now operate on a five-year cycle, so I urge my colleagues to do their best to persuade our partners to agree an extension to five years. That would also enable the British public to have their say in the customary manner on the negotiated outcome at the general election in 2020.

The calm, considered and informed discussions that are the hallmark of this place are inevitably very different from the trademark cacophony of a national referendum campaign. The advocates of different forms of Brexit may all claim a popular mandate for the particular outcome that they seek, but it is not true. For better or worse, we live in an age in which public confidence in politics and politicians is at an embarrassing all-time low. When we said in our report that there must be a role for Parliament in the process of triggering Article 50, we were not attempting to arrogate to ourselves the capacity to overturn the referendum. There is and must be no question of setting ourselves above the people. Sovereignty ultimately belongs to the people; they entrust it to us on a temporary basis only. This is not merely about the amour propre of parliamentarians. On the contrary, we are seeking the opportunity to prove how effective we can be in taking a mature and balanced view as we work to defend and promote the national interest in the challenging times ahead.