Outcome of the European Union Referendum

Lord Low of Dalston Excerpts

Wednesday 6th July 2016 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, this referendum should never have been called. It was called for narrow, tactical reasons of party advantage. It represented a colossal misjudgement on the part of the Prime Minister which has cost him his premiership and a favourable verdict from history but, more to the point, it has plunged the country into years of uncertainty and will have consequences for the UK which Christine Lagarde, head of the IMF, has put at,

“pretty bad to very, very bad”,

and could lead to a recession—a judgment supported by nearly every other economic commentator of note. Given that things are usually neither as good or as bad as people say, I would settle for “pretty bad”, but certainly not “good”. This may be seen not so much in the bad things which happen, as in the good things—like investment decisions—which do not. But these, like Donald Rumsfeld’s “unknown unknowns”, are of their nature very much harder to track. In the immediate term it has created a vacuum in policy and leadership, seen most notably in the failure to provide any reassurances to the status of EU nationals living in this country. There has been widespread agreement in the debate that this needs to be addressed—and soon. It has also opened up major divisions in our community—as the noble Baroness the Leader of the House said—between the old and the young, the different countries of the United Kingdom, those living in our major cities and elsewhere, and those who have privilege, power and influence and those who feel they do not.

Perhaps one of the most worrying manifestations of this is the upsurge in racism, xenophobia and incidence of hate crime. One thing which is clear is that a snapshot of public opinion on a particular day is a very bad way to determine a question as complex as whether we should remain a member of the European Union. You could see this in people’s craving to be given the facts when facts were so thin on the ground and so much depended on matters of judgment. Of one thing we can be reasonably certain: that no Prime Minister is going to call another referendum any time soon.

At number 100 on the list, it is difficult to come up with anything very new. The speeches from which I have got most, except for the virtuoso performance of my noble friend Lord Bilimoria, were those of my noble friends Lord Kerr and Lord Butler and my noble and learned friend Lord Brown of Eaton-under-Heywood, though there may well have been others in the same vein which I have missed. The point I would make about them is that they have all emphasised the fact that the result of the referendum is not a once-and-for-all decision—a case of sudden death, as it were. The mantra “we are where we are” makes sense only if by that we mean that the referendum triggers a dynamic process in which there are several more decision points along the way, with options at each point as to how the decision should be taken. For instance, when should notice of withdrawal be given under Article 50? Straightaway before we have worked out what we wish to achieve in the withdrawal negotiations or not until we have worked out our negotiating position? The latter would surely seem to make more sense, but who should take the decision—the Prime Minister or Parliament? A substantial body of opinion would suggest it should be Parliament, though my noble friend Lord Lisvane has argued strongly that an exercise of prerogative power is sufficient. However, even he agrees that parliamentary endorsement is a political, if not legal, necessity. Doing it this way would certainly help to avoid a legal challenge.

Should notice under Article 50 be preceded by informal talks with the rest of the EU to scope the parameters of withdrawal? That would certainly seem desirable, as the noble Lord, Lord Lisvane, has argued, though there seems to be some doubt about the EU’s willingness to engage in such discussions. Can an Article 50 notice be withdrawn in the course of negotiations if it looks as though the best we can get is worse than what we enjoy at the moment? The committee of the noble Lord, Lord Boswell, seems clear that it can but again according to my noble and learned friend Lord Brown this is disputed—another field day for the lawyers, no doubt. Finally, when should the European Communities Act 1972 be repealed? Presumably not until the enormous jungle of law dependent on it has been sorted out.

What scope is there for public opinion to be consulted again at any of these stages along the way? The most obvious point would be that at which the result of the withdrawal negotiation was known and it was desired to know what the people thought of the terms. Last week, in questions on the Prime Minister’s Statement, I suggested that there was a strong case for a second referendum on a more precisely focused question such as this. There are no doubt substantial arguments against a second referendum. It invites the charge that it simply proceeds from an unwillingness to accept the result of the first referendum. Moreover, since there is widespread agreement that the vote for leave represented a protest by those who felt left behind and ignored against by the establishment, what could be perceived as an attempt to rerun the referendum—just because we did not like the result—risks further undermining trust in political institutions.

We should therefore be reluctant to call for a second referendum. However, the noble Baroness the Leader of the House surely goes too far—as the noble Baroness, Lady Andrews, has said—in describing the result of the referendum as an instruction. Professor Vernon Bogdanor goes much too far when he writes in the Telegraph:

“The people, however, have become, for constitutional issues at least, a third chamber of the legislature, with the power to issue instructions which the politicians cannot ignore. The sovereignty of the people trumps the sovereignty of Parliament”.

No one doubts that the referendum is only advisory. The majority for leave was only a narrow one. There are good grounds for saying that a referendum on a question of the magnitude of this one should require a super-majority of say 60% or two-thirds. As Tony Blair has said, the case for leave has significantly crumbled. Its leading proponents have abandoned the principal foundations on which it rested. It has become clear that they did not have the faintest idea of how Brexit was to be implemented. People have begun to realise that they were misled. There is significant evidence of people rethinking the way they voted in the aftermath of the referendum and more than 4 million people have signed the petition calling for a second referendum. In these circumstances we should remain open to the possibility of a second referendum on the terms of withdrawal, once they have been negotiated.