European Union (Notification of Withdrawal) Bill

Lord Tyler Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord Howard of Lympne]

It is hardly a fantasy if the negotiations are brought to an end speedily, as we all hope they will be. If they are brought to an end six months before the end of the two-year period, the process I identified as being made possible by new subsection (4) could well take place. Parliament should not intrude itself into negotiations. It is not the job of Parliament to negotiate. That may seem self-evident but since this amendment was moved by the noble Lord, Lord Pannick, I thought I had better look for some authority for the proposition I am advancing and went to the supreme authority on these matters— I went to Dicey. Dicey says that Parliament,

“should neither directly nor indirectly take part in negotiating treaties with foreign powers”.

That is what subsection (4) of this amendment would make possible, which is why I suggest that it is constitutionally improper.

[Lord Tyler (LD)]

I do not think that the noble Lord has followed the process of the Constitutional Reform and Governance Act 2010, which specifically gives both Houses of Parliament a role in the ratification of treaties. That completely updates where Dicey got to.

[Lord Howard of Lympne]

I am afraid that it is the noble Lord who misunderstands the position. I am not disputing the role of Parliament in ratifying an agreement. That is perfectly proper, but that is different from Parliament refusing the ability of the Government to terminate the negotiations. That is what intrudes Parliament into the negotiations and that is why, in my view, the amendment is constitutionally improper.

The amendment is also unnecessary, for one very simple reason. If at the end of the negotiations—I devoutly hope that this will not occur; I do not believe that it will occur; I do not think that there is much chance of it occurring—the Government find themselves completely at odds with Parliament, in particular with the other place, it is always open to the other place to pass a Motion of no confidence in the Government. Clearly, that would bring matters to a head and perhaps achieve the result that the noble Lord, Lord Pannick, seeks to achieve. Parliament is always supreme in that respect. Parliament can always pass a vote of no confidence in Her Majesty’s Government.

--- Later in debate ---

[Lord True (Con)]

My Lords, I have a slightly different point to make. I do not want to repeat what I said to your Lordships on the first day of Committee but perhaps I may again read the Long Title of this legislation. It is a Bill to:

“Confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU”,


and that is followed by one clause.

We have had a most entertaining disquisition and a whole series of teach-ins on various aspects of what the nation will be debating over the next year, including tonight from some extremely eminent lawyers and diplomats. It is clear to me as the Bill advances that the noble Lords, Lord Hannay, Lord Pannick and Lord Kerr, are emerging as the Thomas Aquinas, Duns Scotus and St Bonaventure of the details of this argument—the scholastic philosophers of what is before us. Unfortunately for the scholastic philosophers, the Christian communities involved did not accept that they had a monopoly of wisdom, because brilliance has to be tempered by practicality and practical wisdom. The problem that Parliament in its entirety has to wrestle with is how we respond to a vote by the British people with a majority of one and a quarter million to leave the European Union. That will exercise us for some time, but I do not think this is the time for scholastic argument. I take the same view on this amendment as on many others: it is an unnecessary obstruction—not in time or in practice, but we should focus on the purpose of this Bill.

I make a further point, which we should wrestle with over the next few months with some care. A great deal has been said about parliamentary sovereignty. I agree with the comments made by my noble friend Lord Howard and the noble and learned Lord, Lord Hope, on subsection (4). But there is a deeper difficulty in this talk—and it is good talk; I am a devout parliamentarian—about parliamentary final say. In our parliamentary system there are two Houses. There is a House of Commons, which is elected and which can ultimately enforce its will, if need be through the Parliament Act—as is envisaged in one of these amendments—and there is another House, your Lordships’ House, which is unelected.

Today we established a new fact. We had a vote. In that vote, which is the second highest vote ever recorded in the House of Lords, 614 Peers voted. The result was, I believe, 356 to 258, or it might have been the other way around—

[Lord Tyler]

It was the other way around.

[Lord True]

I thank the noble Lord, Lord Tyler. So it was the other way around—358 to 256—which strengthens my argument. There is—if those 358 care to unite again and again—an insurmountable wall in your Lordships’ House, an unelected House, against the will of the other place, Her Majesty’s Government. I will not use the phrase “the will of the people”—we are acting on the instructions of the people, but I know it offends some. There is an insurmountable wall. It is inconceivable that the Government could form enough people in this place to overcome it. So when I read these amendments, which, effectively, have said that nothing can proceed and nothing can be terminated without the consent of your Lordships’ House, I see them as effectively giving your Lordships’ House—an unelected House, with a force that the world out there sees today—a veto on the procedure to take this forward. I give way to the noble Lord—

[Lord True]

It may be that the noble Lord has more access to my right honourable friend than I do. My right honourable friend is perfectly capable of forming a judgment and I have no doubt we will hear from my noble friend on the Front Bench. I do not resile for a moment from the advice that I am giving. I would give that advice to my right honourable friend as well. But it would be a strange place to put this country, at this time, on this Bill, at this stage of these proceedings, if we pass legislation that effectively gives a veto to a House that has voted with 358 Members against the request of the Front Bench to allow this Bill to proceed unamended as the House of Commons did. This is a major issue that needs to be addressed and it is one to which I hope the country and this Parliament will turn its mind.

[Lord Tyler]

My Lords, I have now served in Parliament for over 25 years—roughly half that time in each House. I do not think the noble Lord who has just spoken has had experience of the House of Commons.

I want to address two insidious arguments. One argument—which we have heard often over recent days and the noble Lord has repeated it—is that somehow, the House of Lords should not intervene because the House of Commons has already spoken. If we take that argument to its extremity, there is no point in your Lordships’ House. It is simply giving ammunition to those, who are now increasing in number, who want a unicameral Parliament, who want to abolish this House, not just to reform it or to make it an elected Senate, as I do. I am very firmly in favour of a bicameral Parliament, as are my noble friends on these Benches, but there are now more people, many more people, who wish to abolish this House than want it to retain its present, appointed basis. That is very dangerous. If the noble Lord, Lord True, wants to persuade your Lordships’ House that we do not have a status on an issue as important as this, that we do not have a perfect right to tell the other place to think again, then I do not agree with him. It was evident from that very considerable vote on the earlier amendment that that is not the majority view in your Lordships’ House.

The other insidious argument which I think is really dangerous is to say, as many Members of your Lordships’ House seem to be saying, “Yes, we are very keen on the sovereignty of Parliament, but we are not prepared to reiterate that point now”. If not now, when? The Minister has on several occasions—he is persistent and sometimes persuasive—made a good point about some of the amendments that have come before your Lordships’ House about the process of negotiation; there will be other opportunities. There will not be another opportunity to set out a simple and sensible process within Parliament —both Houses—for the way we decide the outcome of the negotiations.

I was very impressed by the speech of the noble Lord, Lord Deben. He and I used to have discussions in the other place; I used to have to try to shadow him. He and the noble Viscount, Lord Hailsham, are the true Thatcherites, because they helped the great architect of the single market to make real sense for Britain of the single market, as, indeed, did the noble Lord, Lord Heseltine, who was here earlier. But I do not think that we can really wait for the end of the process to decide how Parliament is going to take the process. That is why I thought the contribution of the noble and learned Lord, Lord Hope, was so helpful. If the Government cannot, between now and Report, find a way of setting before our House and, in due course, the other place, a process that we can all agree is one that defends the sovereignty of Parliament, defends our rights, in both Houses, to take these important decisions, then the Government are seriously at fault and may well find themselves losing a vote in your Lordships’ House, albeit perhaps not with the same majority as on Amendment 9B.

This is an extremely important moment, not just for the future of our country—of course it is—but for the future of our Parliament. If we effectively tie one hand behind our back, in either House or both Houses collectively, then we are doing a great disservice to the whole principle of the sovereignty of Parliament. I do not know whether the noble Viscount, Lord Hailsham, is going to follow me but he is the ideal person to spell out the importance of defending Parliament against an elective dictatorship. It is clear from the attendance at this late hour, nearly 10.45 pm, that many in this Committee share these concerns about how we are approaching this issue. We have not got it right yet. The noble and learned Lord, Lord Hope, made a very valid point about the way these amendments have come forward. It is the Government’s responsibility to find a better solution to what I think we all agree is a very serious problem.

[Baroness Stowell of Beeston (Con)]

My Lords, I think we would serve ourselves a little better if we did not focus on this as an issue between this House and the other place, or, indeed, between the Executive and Parliament. We need to think about this as a matter which is between all of us, whichever House we sit in, whichever side of the argument we were on during the referendum campaign, and the people who are outside. It is important that we reflect on something that the noble Baroness, Lady Hayter, said on Monday during the debate on the single market. She quoted Lampedusa, saying that for things to stay the same, we have to change.