Brexit

Lord Trevethin and Oaksey Excerpts

Monday 25th March 2019 Lords Chamber

[Lord Trevethin and Oaksey (CB)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Cormack, and before him the noble Earl, Lord Sandwich. I found myself agreeing with much—not everything, but much—of what they said. I also hope that their prayers prove to be efficacious, because they might be our best bet now.

One of the hazards of speaking late in what the noble Lord, Lord Newby, I think, told us was the 13th debate on this topic is that all one’s good points, if any, have been made by other speakers, and most of the less good, and even the bad, points that I was thinking of making have also been made. So I shall take up one or two of the issues raised, and draw out some out of the threads.

In his powerful speech, with which I disagreed fundamentally, the noble Lord, Lord Adonis, who may be moving a Motion later on revocation, said that it should be done “democratically” and then we should revoke and then call a referendum. I have great respect for the energy and resolve of the noble Lord, and the high degree of candour with which he has expressed his objectives over the past two or three years. But when he puts to the House the prospect of revoking first and calling a referendum later, he has not, with great respect, paid sufficient attention to the meaning and effect of revocation of the Article 50 notification in the light of the Court of Justice’s decision in Wightman—and, to some extent, the Supreme Court decision in Miller.

First, revoke and then have a referendum is never going to happen, so I will not take up too much of your Lordships’ time with that possibility. It will not happen because, almost certainly, primary legislation would be required before the existing Article 50 notification could be revoked. It is far too late to go into the legal analysis; anyone who is interested will find an excellent paper by Professor Young and Professor Phillipson, which sets out the reasoning in a very erudite way, on the Constitutional Law Association website. I do not think, from conversations I have had outside the Chamber, that any of the very distinguished noble and learned Lords who sit around me would disagree with my proposition.

So primary legislation would be required, and, realistically, there seems no prospect whatever that the House of Commons would think it expedient to try to enact primary legislation that said, in 2019—after the referendum Act, the notification Act of 2017 and the withdrawal Act of 2018—“Do you know what? We did not really mean it at all—we are taking it all back: we are revoking, without consulting the people”. The House of Commons will not do that, because it is the elected House, and it has one eye—possibly both eyes—on the response of the electors to that procedure. I agree entirely with the very powerful points made by the noble Baroness, Lady Smith of Newnham, who perhaps looks at these issues in a slightly different way from me but who very convincingly explained why it could not possibly be right to decide this issue in Parliament before it was returned to the people—if it has to be returned to the people.

So the revoke first, referendum next solution will not happen in practice. It would in any event—and it may be important for other reasons to appreciate this—be completely inappropriate because of the legal effect of the Court of Justice decision in the Wightman case. As the House knows, the Court of Justice held, in Wightman, that it is possible to unilaterally revoke an Article 50 notification. That came as no surprise at all to the noble Lord, Lord Kerr, who had predicted that outcome throughout; if I had had a bet with him I would have lost. It did not wholly come as a surprise to me but, nevertheless, there was a very powerful point against the Court of Justice’s conclusion, which, in short, was that Article 50 imposes a stringent two-year time limit—as we all know by now, being in its vice at the moment. It does so in the interests of the member states that continue to be part of the Union, and one can well understand why that is so. If a departing state can unilaterally revoke a notification, it is not easy to see what would stop it tactically revoking a notification towards the end of the two-year period—because the talks had not gone so well and it wanted to buy some more time—and then re-notifying a week, a month or a few months later, thereby converting the two-year limit to a four-year limit, and conceivably doing the same thing at the end of the four-year period. That would make a nonsense of Article 50 and the Court of Justice had to deal with that.

The text of the judgment and the prior opinion of the Advocate-General, read together, do not convey an entirely clear picture of the answer to that point, but, read sensibly, it is reasonably clear what the court is saying. I shall not go into the text, but it is saying, “No, a tactical revocation of an Article 50 notification is inappropriate and unlawful. We the CJEU will not permit that”. It has to be done in accordance with the constitutional requirements of the departing state, pursuant to a democratic process and, according to the Advocate-General, in good faith. What one probably gets from that is that a revocation followed by a later notification would be treated by the Court of Justice as ineffective so far as the later notification was concerned. In short, a revocation will be final and determinative, on the state of EU law at the moment. Accordingly, “revoke first, referendum second” would not be conducive to the maintenance of trust in democracy in this country, because the post-revocation referendum would not be advisory or mandatory; it would be a rubber-stamp referendum, and the people would not like that at all. I mention those points because I have been looking at the European case law.

I shall close my observations in this way. Like, I should think, other Members of the House, I spent quite a lot of the weekend watching elected politicians on television ducking, diving, weaving and dissembling to answer good questions put to them by Mr Marr and others. It was a very depressing sight. We the country, and within the country Parliament, are in big trouble now; I think that everyone who has spoken in this debate recognises that. The crisis will get worse fast unless elected politicians in particular start talking straight about the options and how they are to be dealt with.

Let me not be partisan. The ultra-Brexiteers in the Commons should stop engaging in covert manoeuvres in the hope that they will lead to an inadvertent no-deal Brexit. I say respectfully that the Prime Minister should stop saying, “To be completely clear” and then saying something that is as clear as mud. That is not convincing. She should try to be a little clearer about what she is seeking to do. The remainers—just to be even-handed about this—should stop using language in a way that is reminiscent of the Ministry of Truth in 1984.

I shall not go back into the terminology of the “people’s vote”—we have all enjoyed analysing that concept; I want to talk about a different concept that has been gaining currency during the past couple of weeks and was discussed on television yesterday. It is a so-called “confirmatory referendum”, referred to obliquely by various representatives of the Opposition. I listened carefully and I think that the proposal is that the Prime Minister’s deal, which is so widely derided, would be voted through, but only on condition that it is subject to a “confirmatory referendum”. Such a referendum, it is suggested, would consist of a—rather displeasing to some—binary choice: vote for the Prime Minister’s deal, which has been voted down twice by the House of Commons by enormous majorities and suffers from many defects which have been discussed today and on other occasions, or vote for remain. That is, to borrow from an observation made by one speaker on the other side of this Chamber today, a choice between a dead parrot which has ceased to be—the Prime Minister’s deal, which no one wants—and remain. That structuring of the referendal question simply will not do, because it disenfranchises a large number of voters in this country. Something else must be structured if there is to be a referendum. I have not yet heard the question satisfactorily defined, and we are running out of time.

The people may not have known what they were voting for, but they will know if they are being lied to. We and all elected representatives need to start talking straightforwardly to them.