European Union (Notification of Withdrawal) Bill

Lord Lisvane Excerpts

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

[Lord Higgins (Con)]

My Lords, Amendment 17 is tremendously important because it seeks to assert that the decisions on these matters should be taken by Parliament. I have great difficulty understanding why the Prime Minister and, apparently, the Government have seemed so determined to avoid that happening, to the extent of bringing a totally unnecessary court case. They could have gone back right from the start on the procedure we are now going through at considerable public expense. Against that background, it is very important that we should get this amendment right. We must have an awful lot of thought between now and next week to ensure that the amendment we actually pass is the right amendment.

The other point that one needs to take into account is the situation likely to arise towards the conclusion of the negotiations. It seems to me essential that Parliament should decide whether it does or does not accept those negotiations. The difficulty is that if no deal is reached, the whole deal is off and we are back to the situation before we joined the European Union. The interesting question is: if the deal is clearly worse than remaining in the European Union, what happens then? At that point, Parliament needs to consider whether it has accepted the result of the referendum. If it has done everything possible to bring it about but now finds itself in the situation where it is blatantly obvious that the deal is worse than remaining in, it ought to make that decision. Those who voted in the referendum in favour of leaving should realise that that is a sensible solution for us to adopt.

There is one further point that we need to consider before next week and we will need to read very carefully everything that has been said this evening. We may find at the end of negotiations that we would like to change our minds and it would be better to go back to the situation before the referendum. A committee of your Lordships’ House dealt with that issue very clearly having taken expert advice from, I am assured, some very good lawyers, who said that we could change our minds. That possibility was disputed by a number of other lawyers, not least international lawyers. It would be extremely helpful if we could have a definitive view from the Government next week on what the situation is.

We have a lot of work ahead of us for the next few days, but this has been an immensely helpful debate. There is a problem with proposed new subsection (4) of the amendment. I interpreted that as being enormously pro-Brexit. It states that Ministers are not allowed to stop the arrangements if they want to. Having said all that, it has been helpful to have this debate this evening and I look forward to hearing my noble friend Lord Hailsham, who was kind enough to give way to let me speak before him.

[Lord Lisvane (CB)]

My Lords, I hope that the noble Viscount will be kind enough to allow me to interpose very briefly. I support the thrust of Amendment 17 and certainly the aim that it seeks to achieve, but I have a couple of questions about the mechanisms that it proposes to do that. It proposes proceeding by resolution of each House. There are two issues. First, what happens if a straightforward approval Motion is amended and the final result is a resolution that overall approves an outcome but contains some sort of rider or condition? Regulating parliamentary proceedings by statute, in my experience, generally ends in some sort of tears. A question of whether the outcome met the requirements of the legislation could be resolved only by the courts, and that might not be a welcome result.

Secondly, what happens if one House comes to the required resolution but the other does not? Perhaps the solution is one that would endorse the sage advice given earlier by my noble and learned friend Lord Hope of Craighead which is to employ primary legislation, because that contains very well-understood mechanisms for securing agreement between the two Houses.

[Viscount Hailsham]

My Lords, I know the hour is late so I will be very short; I will confine myself to making three points. The first is to adopt the language of my noble friend Lord Deben. This House must recognise that, ultimately, the decision has to be made by Parliament. Historically, there has always been tension between the Executive and Parliament and I happen to be a Roundhead on this matter. Let us not forget, as my noble friend pointed out, that we would not be debating this Bill had the courts not intervened. The truth is that Governments always seek to advance ministerial power at the expense of Parliament and we must push back. The historians among us will remember John Dunning saying that,

“the influence of the crown has increased, is increasing, and ought to be diminished”,

and, with suitable alteration, that is where I stand.

My second point refers to what the noble Baroness, Lady Kennedy, said a propos the risk of there being no agreement. The noble Lord, Lord Kerr, assessed that risk as being higher than 30% and I entirely share that view. We need to address that in statutory language. That is what I tried to achieve in the new clause that would be introduced by my Amendment 32.

My final point, turning to the noble Lord, Lord Pannick—I know it is the view of the noble Baroness as well—is that assurances are well and good and I do not at all doubt the good faith of the Ministers who give them. But I prefer to see assurances in statutory language. Prime Ministers can go, Ministers can be sacked, Parliaments can change and Governments can cease to exist. One needs to enshrine assurances that stand against those changes in circumstances. Therefore, whenever we come to divide on this group of amendments, whichever is chosen, I shall support it because I stand in favour of parliamentary government.