European Union (Withdrawal Agreement) Bill

Lord Wallace of Saltaire Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, we all accept that the decision to leave has now been made and that this Bill will go through, but what sort of future relationship the Government will negotiate once the Bill is through remains entirely unclear. Different interpretations leak out from different Ministers, Conservative newspapers and MPs. The Prime Minister himself is still in “cake and eat it” mode, wavering between promises of regulatory divergence and assurances that we will remain close to what he sometimes calls “our European friends”.

I will focus here on the process by which Parliament continues to scrutinise the transition we are entering into, from EU membership to association. I was shocked when Liberal Democrat Peers were told in a ministerial briefing last week that there was now no need for the previous Bill’s clause guaranteeing parliamentary scrutiny of future trade negotiations because the result of December’s election had given the Government sufficient mandate to negotiate them in whatever form they may be able to agree.

There will be difficult trade-offs to be struck in the negotiations about our future relationship. The political declaration sets out an agenda but does not give much indication of how these trade-offs will be struck—between fishery concessions and the interests of our financial services sector; between acceptance of some continuing role for the European Court of Justice and insistence on the purity of UK legal sovereignty.

Any democratic Government need to be held to account not just once every five years but as they continue to make policy month by month. That is the difference between a populist electoral dictatorship and a functioning constitutional democracy. I was reading a book on American populism last week, and noted that George Wallace—my namesake, who was the populist Governor of Alabama—was fond of saying in speeches that the will of the people was more important than the law. Some supporters of this Government, even in this House, have come close to saying the same thing.

In the Queen’s Speech debate last week, the noble Lord, Lord Strathclyde, suggested that the Lords, as Parliament’s second Chamber, should rarely oppose the Government on this Bill or, indeed, on other forthcoming legislation. He is right that a second Chamber should not block legislation in principle, but he is wrong to argue that we should not, entirely properly, ask the Government and the Commons to think again on the content and detail of legislation set before us.

After the speech of the noble Lord, Lord Strathclyde, I checked with the Library on the pattern of Lords’ defeats of the Government over the years. Of course, when the noble Lord first entered our Chamber, the Conservatives had a permanent majority, defeating the Labour Government 126 times back in 1975-76. Since most hereditaries were excluded in 1997, the highest number of defeats of the Government in any one Session was in 2002-03, at 88 defeats, when the Leader of the Opposition—the person whom last week the noble Lord called on to behave with caution and restraint—was of course the noble Lord, Lord Strathclyde, himself. He deplored in last week’s debate that the Conservative Government had been defeated in almost 50% of the whipped Divisions in the 2016-17 Session, calling it an “absurdly high figure”. However, in the 2004-05 Session, the Labour Government were defeated in 58% of such Divisions, again with the noble Lord, Lord Strathclyde, leading the largest opposition group. I rest my case.

There are constitutional issues in this Bill which we are entitled to draw attention to and to which a wise Government should listen. While Clause 31 of the previous Bill, asserting Parliament’s role in continuing scrutiny, has disappeared, we now have the new Clause 38 nevertheless asserting that parliamentary sovereignty is absolute. It is there not for any practical purpose but to throw a bone to the hard nationalists of the European Research Group and the Bruges Group. Sovereignty can never be absolute unless a state disengages from all its obligations under international law. The balance between the fundamental principles of law and the untrammelled power of the Government when controlling a majority in the Commons has been argued over since the time of Justice Coke and others, in the early 17th century.

Insistence on the unlimited power of the Government in Parliament to override our devolved Assemblies would now be unwise as well, and arguably close to unconstitutional in itself. This too we will challenge the Government to justify, in Committee and perhaps even on Report.