Northern Ireland (Executive Formation) Bill

Lord True Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I rise very briefly to support the amendment which the noble Lord, Lord Anderson, has argued for so eloquently. This amendment, to which I set my name, has only one purpose: namely, to make it more difficult—

[Lord True (Con)]

My Lords, if I may, I tabled an amendment to this amendment, which I believe under procedure should be taken at the earliest opportunity.

[Viscount Hailsham]

I am very happy to sit down.

[The Countess of Mar (CB)]

My Lords, we are speaking to Amendment 6 at the moment. The amendment is to Amendment 7.

[Lord True]

Sure. Okay.

--- Later in debate ---

[Lord Newby (LD)]

My Lords, I invite the noble Lord, Lord True, to speak. All amendments are in the same group, and although the noble Countess, Lady Mar, said that the Amendment 7 had not been moved, it has been spoken to. If the noble Lord, Lord True, wishes to speak now, that would be appropriate.

[Lord True]

I thank the noble Lord. I think it would be helpful for the House to hear the other side of the river speak, as it were—the minority that we are. I was not minded to take part in this Bill, though I am troubled by the high-handed intervention in Ulster affairs and other parts of the Bill by MPs in another place, and will be listening carefully to what my noble friends say later.

I tabled my amendment because I am concerned by the attempt to hijack a Northern Ireland Bill to—let us be blunt—stop the UK leaving the EU on 31 October or to weaken our negotiating position. It was a move instigated by my right honourable friends Mr Grieve and Sir Oliver Letwin. They were supported by the usual galère of referendum-deniers and pushed towards the line by the votes of more than 220 Labour MPs. Yes, Labour again: with 76% of the votes for Mr Grieve, Labour has been, since 2017, the single greatest political force obstructing Brexit.

This amendment does not touch the call for progress reports, but it prevents exaggerated machinery being added for repeated debates, which some have admitted is to stop Brexit on 31 October. Sir Oliver Letwin declared that these amendments would “prevent Prorogation”, and we have heard that argument today. But Mr Grieve freely admitted that his aim was to prevent Brexit on 31 October. Both rather arrogantly took it for granted that if they were defeated—as they were—your Lordships’ House would act as they instructed, and hey presto, here we are with Amendment 7. Your Lordships’ House is again invited to be the doormat for a defeated party in the other place.

The motive for all this is clear, whatever the pretence. One of the two men likely, though not certain, to become our next Prime Minister has said that he would honour the verdict of the referendum and take Britain out of the European Union on 31 October. The tablers of this amendment want to stop him. Some will tell us today, as we have heard already, “Oh, it is nothing to do with Brexit. It is all about protecting Parliament”—the very Parliament they wish to remain subjected to the superiority of EU law. Is it nothing to do with Brexit? I really do wonder.

The noble Lord, Lord Anderson of Ipswich, who spoke eloquently, states on his website that he is an EU law nerd and veteran of more than 150 cases before the ECJ. He argued that, even if Brexit were delayed, the British people did not need to be given the chance to vote in EU elections—“Do not let the people speak”. The noble Lord described as moving my noble friend Lord Hailsham’s words, which were that Brexit was an act of national self-harm that moved him to anger, shame and distress. We may safely conclude that the noble Lord, Lord Anderson, is not an enthusiast for Brexit.

My noble friend Lord Hailsham has always been open. From the outset, he declared his wish to frustrate Brexit, as did the noble Lord, Lord Newby. I do not know about other noble Lords, but I have never seen the name of the noble Lord, Lord Newby, on an amendment to do with the EU and concluded that it might be about advancing our exit. This amendment is designed to do one thing: to make it harder to leave the EU on 31 October. If, in the light of 17.4 million votes in a referendum and the result of the European elections, your Lordships’ House wishes to align itself with that objective, so be it. Our names will all be counted in the Division lists. Perhaps the days of this House will then also be counted.

The smokescreen of this amendment, as we have heard, is all about stopping Parliament being prorogued, so Parliament can have a say. Make no mistake that my right honourable friend Boris Johnson—as has been made clear by my noble friend Lord Hailsham—is the target of this, as he is the target of a relentless campaign of personal vilification. Mr Johnson, it is said, wants to prorogue Parliament to “force” Britain out of the EU. Mr Johnson, of course, has said no such thing, but we have since had the spectacle of a former Prime Minister, himself responsible for the longest political Prorogation in modern times, threatening legal action against one of his successors to prevent him giving considered advice to the sovereign. Is it not extraordinary for a former Prime Minister to argue that the duty to advise the Crown should be taken away from the elected Prime Minister and given to unelected judges?

We are now told that, seven days before seeing the sovereign, a Prime Minister must send a letter to Mishcon de Reya, which I gather is a law firm. I count myself fortunate to have had no dealings with it and, after this, I intend none. Who elected it? We were told that what a Prime Minister advises a sovereign must be subject to judicial review. What next? Will the Supreme Court require and subpoena transcripts of the weekly Audience to find out the purport of the advice the Prime Minister is giving? Will the Prime Minister’s advice have to be accompanied by an explanatory note from the noble Lord, Lord Pannick?

[Viscount Hailsham]

Will my noble friend tell your Lordships whether he favours suspending Parliament to prevent the House of Commons discussing, challenging and overriding the decision of Ministers? Where does he stand on this matter?

[Lord True]

I will come to Prorogation latter. It is reasonable to deploy an argument; it is also reasonable not to accept an imputed wish. Who can impute the purpose of a Prime Minister in advising on a Prorogation? I ask: will the Prime Minister’s advice have to be accompanied by an explanatory note from the noble Lord, Lord Pannick—who we understand has been retained in this matter—telling Her Majesty what she may lawfully hear and what is subject to JR by Mishcon de Reya?

The noble Baroness, Lady Hayter, said she is all for this procedure. Has she, or the noble and learned Lord, Lord Goldsmith—who will be speaking on the matter from the Front Bench—told her leader that? Can you imagine the hail of judicial reviews that would rain down on the Government, led by Mr Corbyn, and the advice he might tender Her Majesty about the use of the prerogative? “Ma’am, you must invite comrade President Maduro on a state visit, grant an honorary knighthood to Raúl Castro or appoint an ambassador to Hamas”. Will Mishcon de Reya ask for a letter about that advice?

[Lord Carlile of Berriew (CB)]

As—I feel I should state—the husband of a former partner in Mishcon de Reya, can I ask the noble Lord, with his distinguished record of parliamentary and public service, how he would like to limit the ambit of judicial review, which is the way in which citizens challenge administrative action that has been called into doubt?

[Lord True]

Whether judicial review should be limited will be a matter for whichever judge the case is put before. My submission is that this is an inappropriate use. The irony when it comes to judicial review is that most JRs of Jeremy Corbyn would come from the Labour Party itself.

Amendment 7 is not a question of allowing Parliament to decide on Brexit. Parliament asked the people to decide the question; the people decided. Parliament voted to invoke Article 50. This Parliament, in this very Session, voted by overwhelming majorities to leave the EU. Parliament has set the law of the land that we should leave on 31 October. It is not a question of anyone stopping Parliament deciding; Parliament has already decided.

[Baroness McIntosh of Pickering (Con)]

My Lords—

[Lord True]

I need to make progress, but I shall take one more intervention.

[Baroness McIntosh of Pickering]

I am trying to follow my noble friend’s thoughts. Is he arguing in favour of an elected judiciary, or does he uphold the rule of law that we currently enjoy in this country? Does he not accept that, while a majority voted to leave the European Union, we have yet to decide by a majority the process by which we do so?

[Lord True]

My Lords, I construe the statute law that lies before us and have expounded it to the Committee just now.

Amendment 7 is a final clutching at straws by hard-line remainers to obstruct, delay and prevent this country doing on 31 October what its people have asked. I submit that this House should have none of it.

On Prorogation, which Sir Oliver Letwin—and, it now seems, others—want to prevent, we have already endured in this pestilential, shameful Session, which has so damaged the image of Parliament and trust in politics, the longest parliamentary Session since the 1640s. What judge will now dictate when or why a Prime Minister may be permitted to advise Her Majesty to bring this wearisome Session to an end? I looked at the record. Until the change of the parliamentary year in 2010, and leaving out election years, Parliament was prorogued in October or November in 24 out of 24 years since 1979. There is nothing unusual about an autumn Prorogation; what is unusual is not having an autumn Prorogation. The prerogative power to end the Session was left untouched by the Prorogation Act 1867 and the Fixed-term Parliaments Act 2011. Parliament could have limited or removed the power; it did not do so. It did not do so, because, until this desperate ploy by hard-line remainers, an October Prorogation was a normal part of parliamentary life. Allowing a new Government to have a new Session with a new gracious Speech and new legislation necessary for the times was a normal and healthy part of parliamentary life. Everyone, wherever they stand on Brexit, is surely agreed that, when it comes, there will have to be new legislation and time to consider it, which means a full and fresh parliamentary Session.

It would be a serious mistake for your Lordships’ House to be a party to continuing games in the House of Commons. Seven days’ notice to Mishcon de Reya before any advice is tendered to the sovereign so that lawyers may wrangle over it is not a wise form of government to implement in the 21st century; nor is trying to prevent the calling of a new parliamentary Session. I submit that this farrago should not be tacked on to a Northern Ireland Bill. The other place rejected it and this House should reject it, too.

[Lord Pannick (CB)]

My Lords, I very much look forward to serving with the noble Lord, Lord True, on your Lordships’ Constitution Committee, to which he has recently been appointed. He will bring, I think it is fair to say, a fresh perspective to our deliberations.

I am very sorry that the noble Lord does not appear to understand the constitutional impropriety of a Prime Minister advising Her Majesty that Parliament should be prorogued for the express purpose of preventing Parliament expressing its views and taking action to prevent a no-deal Brexit. It is the motive for which such advice would be given that distinguishes such advice, and such Prorogation, from the examples he gave. The point is a very simple one.

I also much regret that the noble Lord sees fit to deprecate citizens of this country taking legal action to challenge the legality of conduct of the Prime Minister—

[Lord True]

Will the noble Lord give way?

[Lord Pannick]

Can I just finish the sentence? The noble Lord referred as a matter of criticism, as he sees it, to unelected judges deciding matters. Judges are deciding the law of the land: that is their job and their responsibility. I think it is shameful, if I may say so, that a Member of this House should deprecate that process and the rule of law on which we pride ourselves.

[Lord True]

My Lords, I will deal with the noble Lord’s condescending condemnations later. I ask him to withdraw the statement that I deprecated the act of any citizen. I ask him what citizen I attacked in any part of my speech.

[Lord Pannick]

I am not referring to particular citizens; I am referring to the very clearly expressed statement, which I heard and I think other noble Lords heard, that it is inappropriate and wrong for “unelected judges”—those were his words—to decide on the law of the land. That is their job. We pride ourselves on the rule of law in this country, and that is a fundamental element of the rule of law. I say that not just because I have an interest in this matter: my noble friend Lord Anderson of Ipswich referred to the fact that I have given advice to one particular citizen, Mrs Gina Miller, and I have given the legal advice that for a Prime Minister to advise Her Majesty to prorogue Parliament for the express purpose of preventing Parliament performing its constitutional responsibilities would be unlawful.

However, we are not here today to debate the law; we are here to address, as my noble friend Lord Anderson rightly said, what would be a constitutional outrage. I strongly support the amendment in the name of my noble friend, which is a means by which this House can prevent such an appalling eventuality.