Brexit

Lord Robathan Excerpts

Wednesday 2nd October 2019 Lords Chamber

[Lord Robathan (Con)]

My Lords, so after three and a quarter years, here we are again discussing Brexit. Actually, there are one or two new things to be discussed, such as this proposal that we have just heard and that the noble Lord, Lord Empey, has been talking about, but basically, there is nothing much that is new. The old arguments have been trotted out, so I will not disappoint the House and will repeat one or two.

Those who voted for a referendum, which I did not, who voted to implement Article 50, who stood on manifestos in 2017 promising to implement the results—

“no deal is better than a bad deal”,

it said in the Conservative Party manifesto—who promised to accept the result at the very beginning shame themselves by their obstructionism. I particularly single out the Liberal Democrats, although it is sad that there are only three here to listen.

[Baroness Smith of Basildon (Lab)]

There are only four on your Benches.

[Lord Robathan]

There are only three Liberal Democrats here to listen to me. These people have avoided listening to me, but they went on for years about how they were campaigning for “a real referendum” on Europe, under Nick Clegg. Paddy Ashdown boasted that he called for a referendum on Europe in 1989 or 1990. Let me quote the late Paddy Ashdown:

“I will forgive no one who does not accept the sovereign voice of the British people … whether it’s by one percent or 20 percent”.


That was on the day of the referendum. Now, the Liberal Democrats have decided, “We will ignore the British people, ignore what they said, because we know better”, notwithstanding 10 years of campaigning for a referendum.

Why have we been called back? While we are here for a total of seven or eight days, we at least are discussing Brexit. Down the other end, an empty House of Commons has been discussing the Domestic Abuse Bill—a very important measure.

[Baroness Smith of Basildon]

The noble Lord says that it is an important measure, but he seems to be critical of what the House of Commons was discussing. I think he ought to be very careful where he goes with this.

--- Later in debate ---

[Lord Robathan]

As I was saying, it is a very important measure but, as the noble Baroness knows, the Second Reading is unlikely to proceed to law because we are likely to have a general election. I am not saying that it is not important, but there are not many people down in the House of Commons saying that it is important. The Commons is paralysed. It is a zombie Parliament—a dead Parliament, as the Attorney-General has said. We need a general election.

I am going to look at the judgments that brought us back here. I am not going to talk much about the Supreme Court judgment, although a little, but more about the judgment of 11 September. The Supreme Court talked of precedents, but there is none that I can see, unless we refer to the dictatorial monarchs of the 17th century: the Supreme Court judgment indeed refers to 1611.

On 11 September, the Lord Chief Justice, the noble and learned Lord, Lord Burnett, together with the Master of the Rolls and the President of the Queen’s Bench Division said:

“It is not a matter for the courts”.


I am going to quote extensively from that judgment and from Lord Bingham, who was highly regarded and described as the outstanding lawyer of his generation. The judgment of 11 September said:

“The refusal of the courts to review political questions is well established”.


It quoted Lord Bingham saying:

“The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision”.


In another quote from another case, Lord Bingham said that,

“matters of potentially great importance are left to the judgment … of political leaders (whether and when to seek a dissolution, for instance) …Where constitutional arrangements retain scope for the exercise of political judgement they permit a flexible response to differing and unpredictable events in a way which the application of strict rules would preclude”.

The judgment went on:

“Almost all important decisions made by the Executive have a political hue to them”.


In another case—this was only four years ago—the noble and learned Lord, Lord Neuberger, Lord Sumption and Lord Hodge said:

“The issue was non-justiciable because it was political”.


The judgment went on:

“The Prime Minister’s decision that Parliament should be prorogued at the time and for the duration chosen and the advice given to Her Majesty to do so in the present case were political”.


Surely, we all agree with that. It says in paragraph 64:

“The constitutional arrangements of the United Kingdom have evolved to achieve a balance between the three branches of the state; and the relationship between the Executive and Parliament is governed in part by statute and in part by convention. Standing Orders of both Houses elaborate the procedural relationship between the Executive and Parliament. This is territory into which the courts should be slow indeed to intrude by recognising an expanded concept of Parliamentary Sovereignty”,


and it concludes that,

“the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable in Her Majesty’s courts”.

I do not think anybody would disagree that politics and Parliament are not just paralysed; I fear that we are now despised because of our failure to respect the referendum result. The Supreme Court, I regret to say, has trespassed into politics and that is a very dangerous route down which to go. We have on the one hand three distinguished judges—the Lord Chief Justice et cetera—backed up by Bingham, Sumption and others, who thought that it was dangerous. In what is a febrile, heated and angry atmosphere, many are wondering why—because nobody can understand it —11 distinguished lawyers in the Supreme Court can completely contradict these other three distinguished lawyers beforehand. Some are wondering whether the Supreme Court has become part of an establishment remainer plot. As it happens, I do not think so and believe absolutely in the rule of law but—

[Noble Lords]

Oh!

[Lord Robathan]

I hear the Liberal Democrats laughing. I hope that they are going to pursue their policy even further, because that will lead them to the same result they had in 2015.

The increasing interference of courts is taking us to a continental system. Nobody asked for it; nobody has voted for it. It has been exacerbated by the ECHR being incorporated into law and by the creation of the Supreme Court. I agree with the Lord Chief Justice and not with the Supreme Court. To this House of unelected, unaccountable, privileged Peers, I say again that our whole political system is discredited. We need to leave on 31 October to get the poison out of our political discourse.