European Union (Notification of Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

2nd reading (Hansard - continued): House of Lords
Tuesday 21st February 2017 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I leave the great constitutional issues to Edmund Burke and the noble Lord, Lord Foulkes of Cumnock—they are very similar thinkers; I am a great fan of both of them. I want to say a word about the White Paper. Others have mentioned that it is a little long on assertion and bravado and a little short on facts. I thought that I would offer four facts.

First, it is a fact that if we leave the European Union, our economic relationship with it will be less advantageous than it is now—that has to be a fact. If we leave the single market and the customs union, if we reject common regulation and common jurisdiction, there will be a price to be paid; there has to be a price to be paid. Secondly, it is a fact that our relationships with the rest of the world will be more difficult economically. We will be less attractive to them. Why should they be so keen to open their markets to us if we are no longer their entry point to a market of 500 million? Thirdly, it is a fact that trade halves as distance doubles. Fourthly, it is a fact that customs controls cause delays that damage modern global supply chains and that building trade barriers hurts both sides, but the bigger economy loses less. Obviously, the Government know all these facts but have decided to put our autarchic sovereignty ahead of economic well-being. It is a sad fact that it will not be those who got us into this fix who will suffer. The Bullingdon boys will be just fine; the country may not.

But the country is still in the dark; it does not know where it is going. We are in this bus heading for Heathrow, with mendacious slogans on the side, and we have no idea what the destination is. We do not know what the Government mean when they say that they may have to change our economic model. They may have to go for a low-regulation, low-tax and low-welfare economy. What do they mean? The White Paper does not tell us. The White Paper does not tell us the future of farming in this country, of environmental law in this country or of social law in this country. It does not tell us how the Belfast agreement can survive if the Irish Government are obliged on the inner Irish frontier to run the customs frontier of the European Union.

It will not do just to refer to the oxymoronic repeal Bill and to tell us that all applicable laws will be temporarily extended while we think about their fate. The noble and learned Lord, Lord Hope of Craighead, spoke authoritatively yesterday on the Supreme Court ruling. The Supreme Court says that rights resulting from EU membership can be extinguished only by legislation; this Bill extinguishes no such rights. But some rights fall away the moment we leave the European Union and cannot be extended by the oxymoronic Bill. The rights enjoyed in this country by our citizens that are enforceable against other member states go. Rights whose geographical scope extends into other member states go. Rights whose enforcement requires the co-operation of other member states and the EU institutions go. We will need a new legislative rendezvous, and that is nothing to do with the great repeal Bill.

In my view it would make sense to improve the Bill before us to provide for that rendezvous in at least two respects. First, the Government have given us no undertaking that they will come back to Parliament if the negotiations threaten to break down. I rate the chances of breakdown at well over 30%. The White Paper is totally silent on the impending row about money and the bills we will be asked to settle as we leave. With respect to the noble Lord, Lord Lawson, no deal is much the worst deal. Walking away would mean recourse to law or arbitration, extended uncertainty about any continuing links with our largest and nearest trading partner and no legacy rights in its 50 agreements with third countries—a disaster for business and citizens alike. If the bravado of the White Paper proves hollow, the Government must come back to Parliament before the clock runs out.

Secondly, we need to consolidate in the Bill the Government’s quasi-commitment to give Parliament its say before the die is cast on any emerging settlement. The European Parliament’s similar right is enshrined in the language of Article 50. This Parliament deserves no less. It will not do just to give Parliament Hobson’s choice—to say, “It’s this deal or no deal”. Timing is crucial. Parliament must have the chance to consider at least three other options. Under option one, Westminster could follow the frequent practice of the United States Congress, say that it does not like the emerging deal or some particular aspect of it, and ask the Executive to go back and try harder. As one who has negotiated with two US Administrations, I say to the noble Lord, Lord Hill of Oareford, who thought that any such possibility would weaken the Government’s negotiating hand, that that is the exact opposite of the truth. Saying “I hear you but Congress would never wear it” is a negotiating weapon our American friends frequently use to great effect. I speak from experience.

As regards the second option, if timing proves tight, Westminster could invoke Article 50(3) and invite the Government to seek an extension of the two-year period. The European Union is a union of democracies. If this Parliament asked for an extension, and our Government conveyed our request, in my judgment it would certainly be given.

Under the third option, Parliament could invite the Government or the country to think again. An Article 50 notification is not irrevocable. The President of the European Council and a gallery of EU legal luminaries have confirmed—of course, the noble Lord, Lord Lester of Herne Hill, is among their number—that a member state may, in accordance with its constitutional requirements, withdraw its notification within the two-year period or its extension. This morning, the noble Baroness, Lady Symons of Vernham Dean, asked about the Government’s motive in conniving in the High Court at the fiction of irreversibility. I cannot answer her but the fact is that Article 50, which first saw the light of day under the heading “voluntary withdrawal” is not an expulsion procedure. We remain full members of the European Union throughout the negotiating period—the two years or its extension. If, having looked into the abyss, we were to change our minds about withdrawal, we certainly could and no one in Brussels could stop us. If it were not so, I would have to oppose the Bill. As it is, all we need do is improve it and make sure that the rendezvous with history, which comes when we know what the Government want for the future of our country and its relationship with our continent, is clear.

European Union (Notification of Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

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

[Lord Bilimoria]

My Lords—

[Lord Kerr of Kinlochard (CB)]

My Lords—

[Lord Green of Deddington (CB)]

My Lords—

--- Later in debate ---

[Baroness Smith of Newnham]

My Lords, we have heard much about the issue of EU nationals being a priority, but, as the noble Baroness, Lady Symons, pointed out, whatever the ambition of the Prime Minister and however great her negotiating skill is likely to be, the nature of EU negotiations is that nothing is agreed until everything is agreed. So having this as a priority will not, in itself, give EU nationals the security that they need. If the Government do not feel able to accept the amendment—and I suspect that they will not—could the Minister give further clarification not about some distant immigration Bill that will come after the great repeal Bill but about something in line with and in the spirit of Amendment 9B that will occur in the immediate aftermath of triggering Article 50?

[Lord Kerr of Kinlochard]

My Lords, I very much agree with what the noble Baroness said at the end of her speech. As the noble Baroness, Lady Symons of Vernham Dean, said, this will be a nothing-is-agreed-until-everything-is-agreed negotiation. If we do not do the decent thing now—if we do not listen to what the noble Viscount, Lord Hailsham, said at the start—when will we do it? This negotiation could last all of two years and could end without an agreement. It certainly will not end with dossiers agreed in this calendar year. So if we all believe that the decent thing will have to be done at some time, why not do it now? The Tory party really needs to remember that its guru is Burke, who said:

“Magnanimity in politics is not seldom the truest wisdom”.

[Lord Blencathra (Con)]

My Lords—

--- Later in debate ---

[Lord Howard of Lympne]

My Lords, I oppose this amendment on grounds that are rather different from those advanced by my noble friend. I submit that this amendment is wrong in principle, constitutionally improper and unnecessary. Your Lordships might think that given that it was proposed by the noble Lord, Lord Pannick, I am being rather courageous and perhaps foolhardy in suggesting that it is constitutionally improper but I hope to explain to your Lordships why I take that view.

My view is based in particular on subsection (4) of the new clause. That would make possible—indeed it encourages—a never-ending situation in which the Government reach an agreement with the European Union and brings it to Parliament, Parliament rejects it, sends the Government back to the European Union, the Government come back to Parliament and Parliament rejects it again. The only way that process can be ended is by the Government having the power to bring the negotiations to an end. What would happen if the process envisaged by subsection (4) were to take place is the intrusion of Parliament into the negotiating process. That is why I say this amendment is constitutionally improper.

[Lord Kerr of Kinlochard]

I wonder if the noble Lord is familiar with Article 50, where it is clear that if no agreement is reached within the two-year period the state that intimated its intention to withdraw, if it has not withdrawn that intimation, leaves the European Union at the end of those two years. The idea of the never-ending negotiation is a fantasy. The article is completely clear.

[Lord Howard of Lympne]

It is hardly a fantasy if the negotiations are brought to an end speedily, as we all hope they will be. If they are brought to an end six months before the end of the two-year period, the process I identified as being made possible by new subsection (4) could well take place. Parliament should not intrude itself into negotiations. It is not the job of Parliament to negotiate. That may seem self-evident but since this amendment was moved by the noble Lord, Lord Pannick, I thought I had better look for some authority for the proposition I am advancing and went to the supreme authority on these matters— I went to Dicey. Dicey says that Parliament,

“should neither directly nor indirectly take part in negotiating treaties with foreign powers”.

That is what subsection (4) of this amendment would make possible, which is why I suggest that it is constitutionally improper.

European Union (Notification of Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

Report stage (Hansard): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Lord Pearson of Rannoch]

Okay, I shall skip over why the single market is a bad thing, I shall skip over the strength of our hand—because they have so many more jobs selling things to us than we do to them—and I shall skip over the fact that noble remainers who support this amendment still think that somehow EU money exists, when it does not. After every penny that the European Union gives us, we are still left with £10 billion a year net, which is—I will give noble Lords a new statistic—the salary of 1,000 nurses every day, at £27,500 a year. Whatever happens, we will go on trading with our friends in Europe, because they need it more than we do.

I end with a word of advice for the Liberal Democrats. I fancy that they are considering supporting this amendment. Their very own policy from the election before last—I do not know what it is now because it is difficult to follow Liberal Democrat policy—was that membership of this House should grow to represent and reflect the votes in the previous general election. In the last election, the Liberal Democrats got 5% of the vote. That should give them 43 seats in this House. Instead, they have 102. I will pass over in silence the fact that we got 8% of the vote, which should give us 69 seats, and we have precisely three. More seriously, however, if the Liberal Democrats use this dishonest advantage—by their own standards and manifesto—to vote down the will of the British people and the House of Commons, they will reveal their contempt for democracy and do your Lordships’ House no good at all.

[Lord Kerr of Kinlochard (CB)]

My Lords, I disagree with the amendment because I see two defects in it, one of which was highlighted by the noble Lord, Lord Lexden, a moment ago. It purports to tie the hands of Parliament—which it should not do—unlike Amendment 3, which we will debate later today, which gives Parliament the certainty of having more options. The second defect is that the amendment does not address the increasing possibility that there will be no settlement, no agreement, and that we fall out.

What I do not like in this debate—I did not like it at Second Reading or in Committee—is the suggestion that in some way it would be illegitimate for the country to think again. There is a frog chorus behind the Minister. Every time he says, “It was decided”, the chorus behind him chants, “Koàx-koáx, decided, decided”. This is the lemming position. No matter how awful the deal turns out to be, no matter how unlike the promises of the leavers the eventual deal turns out to be, no matter how steep the cliff and stormy the sea, we must go over. There is no time to think again; there is no chance of turning back on any decision.

I find that strangely reminiscent of the Moscow I worked in in 1968, when Soviet foreign policy ran on the Brezhnev doctrine. The House will remember the Brezhnev doctrine, which said that once you have voted Communists in, you cannot vote Communists out. It was a very good doctrine for running central and eastern Europe. That seems to be the position of most of the government Back-Benches today.

I hope that the noble Lord, Lord Carlile of Berriew, will consult his new right honourable friend Mr David Davis, the Secretary of State for Exiting the European Union, and will come to the conclusion that Mr Davis was right when he said that if a democracy cannot think again, cannot change its mind, it is no longer a democracy. I rather agree.

[Lord Faulks (Con)]

My Lords, I do not think I am a frog or a lemming, but I was one of the Ministers at the Dispatch Box when we took the European Union Referendum Bill through this House and I think we should have regard to what we decided in Parliament in that Act. A number of amendments were tabled but, I say to the noble Lord, Lord Foulkes, there was no amendment about thresholds, no amendment to nuance the simple question that was posed, no amendment to say that we would only leave if we stayed within the single market, and, in particular, no amendment saying that there would be a second referendum. Why not? Was it because the alternatives were too complicated? There were only two outcomes of the referendum: either we remained or we left. Was it political negligence by parliamentarians not to table these amendments, or were they content with the Bill and its binary question?

We are having this debate contrary to what was generally considered to be the law, which was that it was the right of the Government, exercising the royal prerogative—

European Union (Notification of Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

Report stage (Hansard - continued): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Lord Higgins (Con)]

My Lords—

[Lord Kerr of Kinlochard (CB)]

My Lords—

[Lord Taylor of Holbeach]

I think my noble friend will find that my noble and learned friend has sat down. There will be an opportunity for him to speak, but I indicated earlier that I thought we should hear from the noble Lord, Lord Kerr, at this stage.

[Lord Kerr of Kinlochard]

I am grateful to the noble Lord. The first of my two quick points is to clarify the issue of irrevocability raised by the noble Lord, Lord Finkelstein—and I am glad that he did so. We discussed the issue extensively at Second Reading and he told his readers in the Times that we did not mention it at all, so I am glad that he is here this time. I also pay tribute to the skill of the Lord, Lord Pannick, both in court and in this House. When he won his case in the High Court—not the Supreme Court—the No. 10 spokesman was asked about revocability and said that,

“as a matter of firm policy, our notification to withdraw will not be withdrawn”.

After our extensive debate at Second Reading, the Minister was put on the spot by the noble Baroness, Lady Symons of Vernham Dean, about whether it was revocable or not. The Minister is a very clever man and replied:

“As a matter of firm policy, our notification will not be withdrawn”.—[Official Report, 21/2/17; col. 320.]


That is very similar to what was said by the No. 10 spokesman, which is always wise in a Minister. Last Wednesday, in Committee, the same issue of revocability was raised. When the Minister replied to the debate on the amendment, he said that,

“as a matter of policy we will not withdraw our notice to leave”.—[Official Report, 1/3/17; col. 923.]

The wording was slightly wrong there, but I am sure they will forgive him.

Every time the Government say that,

“as a matter of policy”,

firm or infirm, they will not withdraw the notification which the Bill authorises, they implicitly confirm that, in law, they could withdraw it—and they could. If you want a definitive source, do not look at me, listen to the President of the European Council, who has said so on the record. If you want a definitive EU legal view, and this would be an EU legal question if it were ever tested, try the present head of the Council’s legal service or the one who advised me when I was writing the wretched thing. Just a point of clarification: it is revocable.

My second point relates to the discussion of subsection (4) of the new clause proposed in the amendment. The noble Lord, Lord Lawson, detected deep evil in it. What is being said there is that it is for Parliament to decide whether no deal is better than a bad deal and to make a judgment on whether the deal is bad and that the chaos and disruption of leaving with no deal is preferable. I struggle to think of a deal which could be worse than no deal. Last week, the president of CBI said that the worst possible scenario was leaving with no deal. However, that is not the point: the point is about parliamentary sovereignty. The issue of whether no deal is worse than the deal which is available on the table on that day is for Parliament to decide. That is what subsection (4) of the amendment says, and I support it.

[Lord Grocott]

My Lords, the noble Lord, Lord Kerr, quite rightly—and entertainingly as always—referred to the crucial element of parliamentary sovereignty. We have heard from top lawyers and diplomats and I only offer some thoughts as a run-of-the-mill parliamentarian. I could not possibly vote against parliamentary sovereignty. Voting against an amendment such as this would be like voting against motherhood and apple pie. It is something in which I passionately believe. It was one of the reasons why many people—and I was one of them—were concerned during the course of the European referendum because it seemed incontrovertible that the way in which the European Union had developed involved a steady erosion of parliamentary sovereignty. It would be quite difficult to disagree with this proposition.

When addressing this amendment, we have to decide what a decision by Parliament actually comprises. I am forced to read the amendment. Proposed subsection (1) refers to,

“without the approval of both Houses of Parliament”.

Subsection (3) requires:

“The prior approval of both Houses of Parliament”,


Subsection (4) refers to:

“The prior approval of both Houses of Parliament”.


With great respect to the weight of legal opinion being offered, to propose this amendment without being clear as to what is involved in the approval of both Houses of Parliament is to leave an ambiguity at its heart. It is hardly necessary to add to what the noble and learned Lord, Lord Mackay, has already said.

I was concerned about this from the start. I raised it in Committee. There has been an attempt to move towards answering the question, “What happens if the Commons say ‘yes’ and the Lords say ‘no’?”. The solution is certainly not contained within these amendments.

I made an, admittedly inadequate, attempt with the Public Bill Office to see if there was any way in which I could put down an amendment which would satisfy, or at least address, this problem at the heart of the Bill. If the House will forgive me—as I will conclude shortly afterwards—I will read out the terms of the defunct amendment. It would have said:

“(5) If, under the provisions of subsections (1), (3) or (4), there is disagreement between the House of Commons and the House of Lords as to whether or not the agreement or decision should be approved, the view of the House of Commons prevails over the view of the House of Lords”.


That makes an attempt to explain precisely—or, I hope, resolve precisely—the ambiguity at the heart of the Bill.