Brexit

Lord Marks of Henley-on-Thames Excerpts

Wednesday 2nd October 2019 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we have repeatedly heard this week the Conservative conference slogan: “Get Brexit Done”, followed by, “then we can get on with our domestic priorities”. That is an entirely false prospectus. Deal or no deal, if we leave the EU, our leaving on 31 October or on any other date is only the first stage in the process. No serious commentator doubts that, if we leave, we will be preoccupied by our future relations with the EU for at least a decade.

What is more, the Government’s approach to our domestic priorities involves spending commitments as unbelievable as the £350 million a week on the leave bus. Such commitments depend on continuing economic success, when all economists agree that leaving the EU on any terms, let alone with no deal, would carry major economic cost. Notwithstanding that, Mr Johnson today advanced a tax-cutting agenda. Despite all those contradictions, the Government assert that “Get Brexit Done” is the people’s demand, but that assertion, in its unqualified terms, is unsupported by any evidence.

Certainly, the electorate is sick of the hostility, the political paralysis, the corrosion of our public life and the failure of the Government to do anything but Brexit, but “Get Brexit Done” will not address that. No, the real majority is for the blunt proposition: “Make it stop!”. The simple truth is that the only way to make it stop is to abandon Brexit altogether, whether by a remain vote in a referendum or by revoking our Article 50 notice.

Yes, there would be national embarrassment, but we would at least be turning back from disaster before we suffered the consequences of leaving. Yes, there would be many disappointed people who voted leave conscientiously, but many of them now recognise the impossibility of leaving without massive disadvantage. Many also recognise how international circumstances have changed: the dangers of an expansionist China, an aggressive Russia, a dangerous Iran, a still explosive Middle East and the mercurial unpredictability of President Trump’s United States.

In addition, our citizens increasingly see combating climate change as a priority and appreciate the EU’s massive contribution to that effort. Young people, more even than in 2016, value their freedom to study and work throughout the EU. More people now see the value of European co-operation in research and innovation, security and policing, law enforcement and co-operation in civil law. Yet, if these new proposals on the Irish border are rejected—as well they may be—we are threatened with an immediate end to all those benefits in a no-deal Brexit, with all its catastrophic consequences, graphically set out in the Yellowhammer documents, because our apparent willingness to accept no deal is said to increase the chance of securing a deal.

We now finally have the Government’s outline proposals to replace the backstop. The conduct of Ireland and the EU to date suggests that they are not so easily cowed and are too sophisticated to be threatened into accepting them against their interest. So was Parliament in passing the Benn Act. The noble and learned Lord, Lord Goldsmith, my noble friend Lord Campbell and others have questioned how the Government may respond.

Yesterday, we celebrated the opening of the legal year with international leaders of the legal profession, who have long admired Britain as a standard-bearer for the rule of law. The rule of law requires more than obedience to our courts, although the Supreme Court has fully demonstrated its quality and independence in striking down the purported Prorogation. As the noble Lord, Lord Anderson, pointed out, the rule of law also requires that the Government conscientiously strive to act according to law. The Benn Act is now the law. The Government must seek to comply with it, not merely because they fail to find a loophole but because our system depends on respect for the rule of law and the sovereignty of Parliament. If the Benn Act’s conditions apply, will the Government conscientiously strive to agree an extension with the EU? Then there can be an election or a binding referendum.

I add that it is in no way undemocratic to allow the people to revisit a generalised decision made in the spring of 2016 and express their view again in the light of the present circumstances and new knowledge at the end of 2019 or the beginning of 2020. Let us have an end to this loose talk of Parliament against the people. At the heart of our democracy is the principle that Parliament represents the people. It is a principle worth defending.

--- Later in debate ---

[Lord Hamilton of Epsom]

No. I have given way to so many people, and we are always being told that we cannot go beyond six minutes.

As everybody will know, the judgment of the Supreme Court alluded to the fact that a number of judgments had been made that had political connotations. This is a step much further: the Supreme Court making a political decision. What has the judgment that we could not prorogue Parliament actually resulted in? We have sat for another eight days while we go over all the old ground. One of the reasons we are where we are now is that Parliament is incapable of reaching any conclusion on what it should actually do about leaving the EU. Have we advanced any further by the fact that we have sat for longer? No, we have not. Have the Government been held to account? Well, on the margin, I suppose. Has it really made any difference to anything? No, it has not—for the simple reason that nothing is actually going to happen until the EU Council meets on 17-18 October. After that, of course, it will be decided whether the proposals we have put forward are acceptable, whether there is a deal to be put to Parliament and so forth. It is after the Queen’s Speech that the Government will have to be held to account, and very little has been achieved by Parliament sitting over all these extra days.

The real problem is that if the Supreme Court says, “We’re going to get into the business of not just interpreting but actually making the law, and we’re going to make political decisions when we do that”, as sure as night follows day, Parliament will say, “If the judges are going to make these political decisions, they must be appointed by Parliament”. That is what will happen if we go on down this road. What will happen? A Select Committee in the House of Commons will interview candidates for the Supreme Court. It will ask them about their political views: which way they voted in the last election, what their views are on social matters such as—

[Lord Marks of Henley-on-Thames]

My Lords—

[Lord Hamilton of Epsom]

No, I am not going to give way any more. I have given way endless times, and it does not seem to be taken into account when I am gone after.

That is what will happen. They will be asked about all these things, and we will move over to an American system whereby when there is a Conservative Administration a lot of conservative judges will be appointed, and when there is a Labour Administration a lot of socialists will be appointed. Is that what we want? No, it certainly is not. We do not admire the American system of having politicised judges and a politicised Supreme Court. It would be a very retrograde step.

I am not taking any notice of my noble friend on the Front Bench. I have had so many interventions that I will have to speak a little longer. We are between a rock and a hard place. If we have a written constitution, we will have to completely review the role of the Commons versus the Lords and the relative powers of the two Chambers. We will have to look at the Commons versus the Executive and the role of the Speaker. We will have to look at the judiciary as well. I was rather hoping that the noble Lord, Lord Judd, would reach the conclusion that we should move from an unwritten constitution to a written one. That is the only way that we will save the institutions of this country. Too many people are trying to push the boundaries of a system that has built up over the years and we are now moving into very dangerous territory indeed.