Brexit: European Union-derived Rights

Lord Pannick Excerpts

Tuesday 4th April 2017 Lords Chamber

[Lord Taverne (LD)]

My Lords, I start by thanking the Library for its most helpful analysis of the issues and arguments we are discussing today.

I believe that few things can be more important than the proposed task of the Joint Committee to clarify the options for the promised vote in Parliament on the outcome of the negotiations. At the moment, I submit, the offered choice is meaningless. What are the possible outcomes?

The Government are confident that they will establish a new relationship with the EU which retains for us the benefits of the single market and the customs union but without remaining members of either, without commitment to the freedom of the movement of labour, without continuing to make the present level of contributions to the European budget and without accepting the jurisdiction of the European Court of Justice. With great respect to the Prime Minister, this is perhaps a somewhat overoptimistic scenario. There have been no suggestions from the 27 that they are willing to make any such concessions to a non-member, granting us a special status far more favourable than that granted to any other nation.

Of course, if the Government did succeed in negotiating such a new relationship, Parliament would no doubt be very willing to accept the deal. But if they did not succeed, outside the customs union and the single market, our exporters would face tariff and non-tariff barriers and the high costs and delays of border controls. Our service industry would lose its rights to operate in Europe and we would be bound by regulations in whose formulation we would have no say. In fact, we would be no better off than if there were no deal.

What would Parliament then vote for? It could accept the bad deal, I suppose, because it said that the vote of the people in the referendum must still be obeyed. It could reject the deal and tell the Government to go back and negotiate a better one—some hope. In practice, the choice on offer would be meaningless. Rejecting a bad deal means no deal—WTO terms.

The real alternative would be to withdraw the Article 50 notice, as the noble Lord, Lord Kerr, and indeed, Mr Jean-Claude Piris, the former head of the legal services to the European Council, have told us we are perfectly entitled to do. The Article 50 notice is of an intention to leave. An intention is not a decision. Only the member state can decide to give the notice and therefore only the member state can decide whether to withdraw it. That seems a very convincing argument. But remain is not an option that the Government will allow. Some time ago, Donald Tusk told us that the final choice would be between a hard Brexit and remain. I think he was right.

But the option of remain is not available at present. Now, the anti-European wing of the Conservative Party, including several very distinguished Members of this House, are all for hard breakfast—I mean Brexit. They are not worrying about Parliament having no choice. They favour the WTO route because they predict that, once we have cast off the shackles of the European Union, we can exploit a glorious bonanza of free trade deals with the rest of the world. They may be right: there has never been a more uncertain time.

But it seems at least as likely that we are now in the calm before a storm, that in the Trump era of “America first” the world is likely to be one of protectionism, not free trade, and that a hard Brexit—indeed, even the prospect of one—will in due course lead to a further fall in sterling, a rise in inflation, a flood rather than a trickle of corporate emigration, and a serious decline in living standards. It seems far from inconceivable, as the noble Viscount, Lord Hailsham, said, that many of those who voted leave will then decide that this is not what they voted for and there will be a major shift in the public mood.

The Government have decreed that the Brexit vote is sacrosanct and irreversible. Autocracies and dictatorships forbid people to change their minds. It is the essence of democracy that they may do so if circumstances change, and the verdict of a referendum is no more sacrosanct than that of a general election in which people vote—unlike the vote in June—after detailed manifestos from the parties.

This principle is highly relevant to this Motion. The proposed Joint Committee is to review the options of what Parliament can vote for. The Government’s so-called concession, to let Parliament have the final say, limits them in a way that makes the choice meaningless as it stands. I hope that Parliament will at least agree that there must be a real choice at the end of the negotiations, and that people should be able to exercise their democratic right to change their mind if circumstances change and their hopes are dashed.

[Lord Pannick (CB)]

My Lords, it is a pleasure to attend the latest meeting of the House of Lords Brexit club. The agenda bears a striking resemblance to our last meeting on 13 March, but there is a reason for that—the issues on the agenda were not satisfactorily resolved when we last met.

I want briefly to comment on the second Motion. We all agree, I think, that at some stage in the next two years the Government are going to reach a deal with our EU partners, or they will decide that we will leave the EU with no agreement. The Prime Minister, we all agree, has promised that an agreement would be put to a vote in both Houses. The Prime Minister has made no promise—there is no undertaking if there is no agreement—but noble Lords from the government side and from all around the House told this House that it was inevitable in practice that a decision to leave the EU with no agreement would be put to a vote in Parliament.

A number of difficult questions were posed by noble Lords as to the procedures that will be adopted when we come to the crunch point and when Parliament is asked to vote. I certainly was unable to answer those difficult questions and, more importantly, the Minister, with all his expertise, experience, wisdom and foresight, was unable to answer those difficult questions. Surely on a matter of such significance to the future of the United Kingdom we would all benefit from some mature consideration—before we come to the beginning of the end game—by a Joint Committee which can assist this House and the other place, the Government, the Opposition and all Back-Benchers.

[Baroness Lister of Burtersett (Lab)]

My Lords, being a member of the Brexit club, I support both the Motions but will speak to just the first one.

The Prime Minister’s welcome assurance to President Tusk, that,

“We should always put our citizens first”,


will, I hope, as she stated, act as a guiding principle in the negotiations and the legislative programme stemming from the repeal Bill. I hope, too, that this principle will embrace the rights that our citizens enjoy—broader human, equality and environmental rights as well as employment rights to which the Government have committed to safeguarding.

As we have already heard, the first Motion concerns the rights of our fellow EU citizens who have made the UK their home, and also has implications for UK citizens living elsewhere in the EU. We know from the many emails we have received how insecure they now feel and also how insecure many of their loved ones who are British citizens feel. We have heard from my noble friend Lady Hayter and the noble Lord, Lord Cormack, what it means to have that sense of insecurity.