European Union (Notification of Withdrawal) Bill

Lord Pannick Excerpts

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

Moved by

[Lord Pannick]

3: After Clause 1, insert the following new Clause—
“Parliamentary approval for the outcome of negotiations with the European Union
(1) The Prime Minister may not conclude an agreement with the European Union under Article 50(2) of the Treaty on European Union, on the terms of the United Kingdom’s withdrawal from the European Union, without the approval of both Houses of Parliament.(2) Such approval shall be required before the European Parliament debates and votes on that agreement.(3) The prior approval of both Houses of Parliament shall also be required in relation to an agreement on the future relationship of the United Kingdom with the European Union.(4) The prior approval of both Houses of Parliament shall also be required in relation to any decision by the Prime Minister that the United Kingdom shall leave the European Union without an agreement as to the applicable terms.”

[Lord Pannick (CB)]

My Lords, Amendment 3 is in my name and the names of the noble Baroness, Lady Hayter, the noble Lord, Lord Oates, and the noble Viscount, Lord Hailsham. The purpose and effect of Amendment 3 is very simple. It would ensure that at the end of the negotiating process, the approval of Parliament would be required for the terms of our withdrawal from the EU. The Prime Minister has accepted that principle: she has undertaken that any agreement with the European Union on the terms of our withdrawal, and any agreement on our future relationship with the EU, will be put to both Houses of Parliament for their approval. She has also promised that this will occur before the withdrawal agreement is sent to the European Parliament for its consent. That must be right: this Parliament must have at least the same opportunity as the European Parliament to disagree with the terms of any draft agreement. The Prime Minister has given an undertaking but the Government are refusing to include the commitment in the Bill. Given the importance of the decision to leave the EU and the importance of the terms on which we are to do that, the role of Parliament must surely be written into the Bill—no ifs and no buts.

The amendment has been revised since the very helpful debate in Committee last Wednesday evening. As suggested by the noble and learned Lord, Lord Hope of Craighead, during that debate, proposed new subsections (1), (2) and (3) in the amendment set out the undertaking given to the House of Commons by the Minister, Mr David Jones, on 7 February at col. 264. The only alteration to what Mr Jones said is that the amendment does not commit the Government to proceeding by way of a Motion in both Houses. The amendment allows the Government to decide what would be the best means of seeking and obtaining approval from both Houses. That is because of the point made in Committee last Wednesday night by the noble Lord, Lord Lisvane, with his enormous knowledge and experience of parliamentary procedure.

Proposed new subsection (4), which has also been revised since the debate last Wednesday, requires the “approval of both Houses” if the Prime Minister decides that,

“the United Kingdom shall leave the European Union without an agreement”,

as to the terms. Parliament must also have a role in those circumstances. It must be for Parliament to decide whether to prefer no deal or the deal offered by the EU.

I will also address a point that has been raised with me by some noble Lords, about what happens if the two Houses disagree when the agreement, or lack of agreement, is put to Parliament. It is of course the Prime Minister who has decided that the terms of our withdrawal are so important that the approval of both Houses of Parliament should be required. The White Paper says, at paragraph 1.12:

“The Government will … put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament”.


The Minister, Mr David Jones, stated in the House of Commons in Committee that,

“the Government will bring forward a motion on the final agreement, to be approved by both Houses of Parliament before it is concluded”.—[Official Report, Commons, 7/2/17; col. 264.]

In any event, if this House were to agree this amendment today, it is open to the Government, if they are concerned about this issue, to seek to amend this proposed new clause in the Commons next week to address what happens if the two Houses were to disagree.

[Lord Grocott (Lab)]

This is a very important point, and I am glad that the noble Lord is addressing it in such detail, but we cannot make our judgments on the basis of what the Government have said they might do. The judgment today must be on the basis of what is in this proposed new clause. I therefore ask the noble Lord, from his perspective, given that the proposed new clause repeatedly says,

“the approval of both Houses of Parliament”,

what, in his judgment, would the solution be if one House said yes and the other said no?

[Lord Pannick]

As I have said, this is the Prime Minister’s undertaking, but since the noble Lord has asked me—I do not have to tell him this, given his enormous experience—if the House of Commons were to give its approval, this House would, in my judgment, rightly be told that it should be very slow indeed to take a different view from the elected House. If we were to disagree with the Commons, I understand that it would be open to the Government immediately to take the matter back to the Commons for a further confirmatory resolution, which, if agreed, would lead to a further approval Motion in this House. I expect, at that stage, it would be exceptionally unlikely that this House would stand its ground. I repeat, however, that if the Government were dissatisfied with that, which is the consequence of the undertaking given by the Prime Minister, it is open to the Government to bring forward an amendment in the other place. Indeed, it was open to the Government in this House to bring forward an amendment to this amendment to deal with the matter.

[Lord Howard of Lympne (Con)]

I am grateful to the noble Lord for giving way. He says that it is “exceptionally unlikely” that this House would insist in those circumstances on having its way, but that falls some way short of dealing with the point raised by the noble Lord opposite. Does the noble Lord not agree that this proposed new clause, in effect, gives this House a statutory veto on the decision made by the Prime Minister with the support of the other place to implement the decision of the British people to leave the European Union?

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[Lord Pannick]

The noble Lord will form his own judgment; I am putting to the House that this amendment implements the undertaking given by the Prime Minister. She has recognised—in my view rightly—that so important are these matters that it is necessary, and imperative, to obtain the approval of both Houses of Parliament. The constitutional realities, as I understand them, are that this House is exceptionally unlikely to stand its ground against the view of the elected House. However, noble Lords will form their own judgment.

[Viscount Hailsham (Con)]

My Lords, does the noble Lord also agree that there is nothing in this proposed new clause that precludes the approval of both Houses being expressed in an Act of Parliament? If that is correct, the Parliament Act stands behind it.

[Lord Pannick]

I am grateful to the noble Viscount. As I have already said, this amendment is different from the amendment that we had in Committee because it does not state by what the means the Government must seek the approval of both Houses. The noble Viscount is absolutely right: it is open to the Government to proceed by way of emergency legislation.

[Lord True (Con)]

My Lords, the noble Lord is an exceedingly distinguished lawyer, as we all know. I recognise that, normally, the legal profession seeks precision. The noble Lord is laying before the House an amendment that is imprecise, and he has admitted that; it has been pointed out by my noble friend Lord Howard. He uses the term, “extremely unlikely”. Section 20 of the Constitutional Reform and Governance Act 2010 has a clear device for breaking a disagreement. Why is the noble Lord, as a lawyer concerned with the precise, not putting before Parliament precise legislation that deals with the matter he recognises needs to be dealt with?

[Lord Pannick]

I repeat to the noble Lord: I have put in the amendment precisely the undertaking that the Prime Minister has given. If the Prime Minister takes the view that it is appropriate to address specifically in the amendment the means by which any division of view between the two Houses can be broken, it is entirely up to her, when the matter returns to the Commons—if it does—to amend this provision to specify, for example, Section 20. If I had put in the amendment a particular means of breaking a deadlock between the two Houses, I would have been told by the noble Lord and others that that was not the solution we welcome.

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[Lord Pannick]

What happens? Nobody knows what will happen: that is the whole point of the difficulty that we face in 21 months’ time. I do not know what will happen. The noble Lord does not know what will happen. I am saying to the House that it is essential that Parliament has an opportunity, guaranteed by legislation, to address the circumstances at the time.

[Lord Forsyth of Drumlean]

I know that some people in the House do not want to see the flaws in this, but the answer to my question—no deal or what?—is that we end up rejecting the view that the British people voted for: that we should leave the European Union. That is the hidden agenda behind the amendment.

[Lord Pannick]

If by referring to a hidden agenda, the noble Lord is suggesting that I have some motivation, I assure him that my only motivation is to ensure that Parliament has a guaranteed opportunity at the end of the negotiating process to decide whether the terms of our withdrawal are acceptable or not. That is a basic question of parliamentary sovereignty.

The amendment will not delay notification of withdrawal from the EU. It does not commit the Government to adopt any specific approach in the negotiations. It does not impede them in the negotiations any more than the undertaking already given by the Prime Minister. Crucially, it will guarantee that the Government must come back to both Houses to seek approval for the result of the negotiations.

[Lord Lester of Herne Hill (LD)]

I am grateful to the noble Lord for giving way and wish him a happy birthday. Would I be right in thinking that the difference between what he is advocating and what some other noble Lords are advocating is the difference between parliamentary authority and the royal prerogative? Is he not doing exactly what the Supreme Court of the United Kingdom said in Gina Miller’s case, which he won?

[Lord Pannick]

I am very grateful to the noble Lord. I was worried for a moment that he was going to sing at me, but I entirely agree with his point. We are considering the Bill because, and only because, as he reminds the House, the Supreme Court ruled as a matter of law that parliamentary sovereignty is required at this stage of notification of withdrawal. I say, not as a matter of law—because I am not arguing a legal case—but as a matter of constitutional principle, that parliamentary sovereignty is as important at the end of the negotiating process. I beg to move.

[Lord Heseltine (Con)]

My Lords, many of your Lordships have made the point that we are not here to refight the referendum campaign; there is a clear mandate to trigger Article 50. My own personal position has been clearly established since I first joined the Conservative Party in 1951. I believe, and always have, that Britain’s national self-interest is inextricably interwoven with those of our European partners. I deeply regret the outcome of the referendum.

That said, within three days of that outcome, I publicly made three points. First, I urged the Government to get on with the disengagement process, not only because they had a clear mandate to do so but because I thought that delay would only add uncertainty to the damage that the result itself had produced. Secondly, I urged the Government to appoint Brexiteers to the three Cabinet positions that would front the negotiations. It was clear to me then that failure to do so would open the door to the allegation that if only “the right people” had been put in positions to lead the charge, a much better deal would have been done. I also took the view, perhaps naively, that as campaigners for Brexit, it was not unreasonable to assume that they might have answers to the numerous questions that we faced. Your Lordships will be aware that both of these events have now taken place and I am very pleased to say how fully I support the Prime Minister in what she has done.

That leaves only my third point—the most controversial of the three. I said then that the fightback starts here. Like so many of your Lordships, I enjoyed the privilege of many years in another place—in my case, 35 years. I learned the limitations of government in a parliamentary democracy and I learned the role of opposition in such circumstances. Time and again I have been involved, along with many of your Lordships on these Benches, in opposing by every constitutional means in our power the mandate of the elected Government. Not only did we oppose their mandate from the very first day that Parliament met, we began the long process of repealing the Acts of which we disapproved.

In the end, it came down to a belief in the ultimate sovereignty of Parliament. I must make it clear that, in accepting the mandate to negotiate our withdrawal from the European Union, I do not accept that the mandate runs for all time and in all circumstances—48% of our people rejected that concept last year. They have the same right to be heard, as I hope so many of us recognised in those long years of opposition in another place.

We now face a protracted period of negotiation. No one has the first idea what will emerge. No one can even tell us what Governments in Europe will be there to conclude whatever deal emerges. No one can say with certainty how British public opinion will react to totally unpredictable events. To give just one example, I am told that it took 240 regulations to introduce the single market in the late 1980s. I remember the resentment that caused, particularly to small and medium-sized companies. I understand that it may take 1,600 regulations to unravel more than 40 years of closer union—and no one can say how the vital small and medium-sized sector of our economy will react to the circumstances that it will then face.

Everyone in this House knows that we now face the most momentous peacetime decision of our time. This amendment, as the noble Lord so clearly set out, secures in law the Government’s commitment, already made to another place, to ensure that Parliament is the ultimate custodian of our national sovereignty. It ensures that Parliament has the critical role in determining the future that we will bequeath to generations of young people. I urge your Lordships to support the amendment.

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[Lord Forsyth of Drumlean]

My noble friend is absolutely right on that point. Subsection (3) of the proposed new clause states that:

“The prior approval of both Houses of Parliament shall … be required in relation to an agreement on the future relationship of the United Kingdom with the European Union”.


I put that point to the noble Lord, Lord Pannick, in my intervention. This effectively gives this House, and the House of Commons, a veto on Brexit. It gives it the ability to prevent us from leaving the European Union, despite the fact that we have had the biggest vote in our history from people requiring that. It would be immensely destructive to the reputation of Parliament and of this House.

Subsection (4) states that:

“The prior approval of both Houses of Parliament shall also be required in relation to any decision by the Prime Minister that the United Kingdom shall leave the European Union without an agreement as to the applicable terms”.


That means that Ministers are unable to walk away. This was the mistake that David Cameron made. If he had walked away he might have been able to get a proper deal—who knows? He did not walk away and they knew he was not going to. That is why he got such a useless deal. This ensures that Ministers cannot walk away. For the noble Lord, Lord Pannick, to suggest that the amendment is simply implementing the Prime Minister’s promise is a complete misrepresentation.

[Lord Pannick]

I am sorry; I did not say that. I made it very clear to the House that proposed subsections (1) to (3) implement the undertaking. That is not the case in relation to subsection (4). I take the view—noble Lords will form their own judgment—that it is absolutely vital for this House and the other place to have a say on whether we should leave with no deal or the one that is being offered. I made that very clear.

[Lord Forsyth of Drumlean]

I have to say to the noble Lord that we know what he is up to, and we know what is going on.

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[Lord Pannick]

My Lords, I am grateful to all noble Lords who have contributed to this very full debate. I am particularly grateful to the Minister. The whole House recognises the skill, expertise and indeed patience with which he has piloted this Bill through the House. He will need all those qualities over the next two years. I am sure that the whole House wishes him the best of luck.

The essence of this amendment is clear. It has been clear from the start. It simply seeks to ensure that Parliament, not Ministers, has control over the terms of our withdrawal at the end of the negotiating process. I find it disappointing that those who most loudly asserted the importance of the sovereignty of Parliament during the referendum campaign are now so alarmed by the prospect of the sovereignty of Parliament at the end of the process.

[Lord True]

My Lords—

[Lord Pannick]

No, we have had a full debate. The Minister says that an undertaking has been given on proposed subsections (1) to (3) and therefore that this amendment is not needed. On a matter of this importance, an undertaking is no substitute for a commitment in legislation. On proposed subsection (4), it surely must be for Parliament, not Ministers, to decide whether we leave on no terms or on the terms that have been offered.

The Minister repeated that the approval of both Houses of Parliament will be needed and in no part of the argument advanced by the Minister in his winding-up speech did he express any concern about the primacy of the House of Commons not being recognised by this amendment. If the Government do believe that that is a problem—and if we pass this amendment—the Government will be perfectly able to put a revised amendment before the other place next week.

Your Lordships have heard the arguments. It is now time to test the opinion of the House.