Brexit: Withdrawal Agreement and Political Declaration

Lord Judge Excerpts

Wednesday 5th December 2018 Lords Chamber

[Lord Judge (CB)]

My Lords, the truth is that just about everything that could be said on this subject has been said, time and again. There is no doubt either that, in truth, today’s debate will not change many minds; if it changes five minds, it will be miraculous. If we are being absolutely honest with ourselves, the debate that really matters is happening at the other end of the building. So I should sit down, and the temptation to do so is increased by the fact that, with the noble Lord, Lord Howard, going ahead of me, and the noble Lord, Lord Heseltine, coming behind me, I feel like the cavalryman at the Battle of Balaclava suddenly realising that he is charging the guns—only this time it is cannon in front and cannon behind, instead of just to the left and the right, where my friends are.

My reason for speaking is just to address a slightly different point from that which has taken up most of your Lordships’ time. The processes we have gone through have caused huge public disillusionment with our processes. Whichever side of the argument you are on, that should be recognised as an issue of the utmost seriousness. If I had three hours, I could give your Lordships a complete list of all the occasions when this public disillusionment was aggravated, so I will pick three to show that I am not taking sides.

Mr Cameron went to Europe to secure some fresh arrangements. Anybody could read that it was utterly pointless—he got nothing. But when he came back, he suggested to the public that something significant had been achieved when, in truth, nothing had been achieved. He forgot that you cannot fool all the people all the time. I think that helped turn the result of the referendum. It encouraged people to think, “If that’s what we’re really being asked to believe has been achieved, maybe we should vote leave”. What about the referendum campaign? Both sides spoke in fables. We were engulfed in those twin imposters, were we not? There was the triumph of the wilder Brexiteers and desolation and defeat of the shattered remainers. Then there were all of the rest of us somewhere in the middle. I am sorry to say this—former judges should not make political points—but at this moment, as I stand here, I still find the position of the leader of Her Majesty’s loyal Opposition on all these issues enigmatic.

We can blame Mrs May, the Prime Minister, for the inadequacy of the deal that she has negotiated, and I would not resist criticism of the way in which we have handled the negotiations. But there is, is there not—please, can we pause and remember it—a further thought? If the terms of the withdrawal agreement brought back to London by Mrs May should have been better than they are, or do not satisfy what we think they should have been, there was another party to these negotiations. These were the best terms the EU was prepared to give her. I am not being critical of the EU. It did not want us to leave; it does not want anybody to leave; it wants people to be discouraged from leaving. It had the best cards and played them. This is not a criticism of the EU, but we have to remember that whoever thinks they could have done better in these negotiations must demonstrate quite how that would have been achieved and quite what would have been achieved. That is my anxiety about the matter raised by the noble Baroness, Lady Smith—no doubt she will tell us, or it will be said to us.

Mrs May voted personally to remain, but it was not open to her or her Government to renege on the results of the referendum. The main foundation of our constitution is the sovereignty of Parliament. I believe referenda have emerged as a totally unwelcome and inappropriate way of dealing with issues raised in our constitution. I would love to argue the constitutional point; I would win. But, politically, Mrs May had no choice. I remind this House that the European Union Referendum Act 2015 passed the Commons at Second Reading by no fewer than 544 votes to 53. The Conservatives, Labour and Liberal Democrats all voted in favour. There were a few dissentients, such as my old friend Kenneth Clarke, but the only significant party to vote against the referendum was the SNP.

I am very assiduous; I looked at Hansard to see which of these 544 MPs said, “But I want you to know that I still reserve the constitutional right of Parliament to overrule the result of the referendum”. I do not say there were none, but they were not a great number. Beyond that, we then come to a general election in which both major parties commit themselves unequivocally to proceeding with the referendum result. Between them, they won the overwhelming majority of the seats. Whichever party had come into power, no Government could have dared to insult the electorate by ignoring both the extraordinary parliamentary majority that voted in favour of the referendum, and the result of the election. The referendum had to be honoured and, as things stand, it is still the only lawfully binding arrangement in town: the referendum still binds us.

It is possible that Parliament may change it. I must move on, but how will we address the public disillusionment with our processes, partly caused by the chaotic negotiations, the constant meetings, the whispers and the commentators—everybody churning away, saying it is all chaotic? I suggest something utterly quixotic, something nobody who lived in the real world would ever think of: might it not be a sensible idea, although hopeless, for us to invite the other place to allow a free vote? We know that all parties are split through and through in all sorts of directions. Why should every Member of Parliament voting on this crucial issue—the most important of my lifetime—not be allowed a free vote? The public would at least then know what individual Members of Parliament thought, untrammelled by party pressure, and that they had cast their votes accordingly—exercising the wonderful idea of their own judgment and discretion and not doing what their party told them to do. It may be a quixotic idea but I think that is how, in 1971, we went into the EU. Maybe we should return to the same process.