European Union (Withdrawal) Bill

Viscount Hailsham Excerpts

Committee: 7th sitting (Hansard): House of Lords
Wednesday 14th March 2018 Lords Chamber

Given the disproportionate impact of leaving the EU on a no deal basis or on terms that are unacceptably bad for manufacturing, agriculture and all the services, will the Minister also confirm that the devolved legislatures will be allowed to scrutinise, comment on and vote on any final deal put to Parliament? If Parliament is not to be allowed a meaningful vote along the lines that I have outlined, that only increases the pressure for the final package to be referred back to the people for their endorsement or, indeed, their rejection.

[Viscount Hailsham (Con)]

My Lords, I shall speak to Amendments 216 and 217 in my name. I will come to the detail in a moment, but for present purposes suffice it to say that these amendments, individually and collectively, would give to Parliament—here I acknowledge the primacy of the House of Commons—a decisive and conclusive say over the outcome of the Brexit negotiations. It is for Parliament, not the Government, to determine whether we leave the European Union and, if so, on what terms. If Parliament thinks it appropriate that that decision should be tested by a second referendum that would be wholly appropriate. These conclusions are wholly in accord with our constitution and history, and are, in my view, quite unchallengeable.

I acknowledge that the amendments might be clumsily drafted; I am no parliamentary draftsman. So I say to your Lordships that if others on Report draft different positions that are more happily phrased but achieve the same purpose, I shall be pleased to rally behind them.

My purpose now is to explain in greater detail the nature of these amendments and the reasons behind them. I turn to the text of the two amendments. They are inevitably cast in the statutory language and I do not want to test your Lordships’ patience by going through each clause. I hope that your Lordships will forgive me if I summarise them. My intention is that Parliament shall have the decisive say over the outcome of the negotiations. In that determination, the House of Commons must have primacy. Its decisions must be conclusive. This House does not have the authority to reject Brexit—only the Commons can do that—but we can encourage and facilitate that process. That is what these amendments enable.

Taken separately or collectively, the amendments enable Parliament to approve or reject Brexit whether or not terms have been agreed. They enable Parliament to require the withdrawal of the Article 50 notification and the UK to remain within the European Union, which is indeed my preferred outcome. If Parliament thinks it appropriate, these amendments provide for a holding of a referendum either to test public opinion or to ratify a parliamentary decision. That is wholly correct. Most importantly, the amendments enshrine and protect the primacy of the House of Commons. Without going into detail, although I happily would, the method is set out in subsections (7) and (8) of Amendment 216 and subsections (5) and (6) of Amendment 217. These provisions are based on the Parliament Acts, suitably modified to deal with resolutions.

I will explain the differences between Amendments 216 and 217. Both are designed to ensure full parliamentary control over the outcome of these negotiations. Amendment 216 is simple and is based on a cross-party amendment which was tabled during the European Union (Notification of withdrawal) Bill. Its basic attraction is that it has achieved all-party endorsement. Amendment 217 is a little more complex. It is more explicit in its provisions for the withdrawal of the Article 50 notification: it enables the holding of a second referendum and deals more fully with what should be done in the event of no deal. However, in substance these amendments are designed to achieve the same result: namely that these decisions are to be taken by Parliament, primarily the House of Commons, and not by the Government.

Let me briefly explain the fundamental justification for these amendments. I believe that Brexit is the single most disastrous peacetime decision that we have taken since at least the end of the 19th century when we failed to offer effective home rule to southern Ireland. Indeed, I am inclined to think that Brexit is even graver than that. I do not think that the referendum of 2016 was authority for Britain to leave the European Union, whatever the terms or in the absence of terms. The electorate neither could nor did know what the outcome of the negotiations would be. In my view, the proper interpretation of the referendum is that it was an instruction to the Government to negotiate the best exit terms that could be achieved. However, that leaves open the fundamental question of who will determine whether the terms, or the absence of terms, are an acceptable basis for leaving the European Union. In my view, the only proper answer to that question is that it is for Parliament to make that decision, and, if Parliament thinks it appropriate, the decision should be tested or ratified by a decision of the electorate expressed in a second referendum.

In most political careers, and certainly my own, party and national interests are not seen to be dramatically divergent. Occasionally, they are. The debate in 1940 which led to the fall of Chamberlain is perhaps the most dramatic of recent examples. Going back in history, the decision of Sir Robert Peel in 1846 to repeal the corn laws was another. I happen to believe that we now face another such moment. None of us should put party interest before our assessment of what is right for our country. Our decisions may lead to the fragmentation of existing party structures—I hope not—but our duty is to put our country first. Whatever the cost to our respective parties, we must give Parliament the decisive say on the outcome of these negotiations. That is the purpose of my two amendments and I commend them to this Committee.

[Lord Patten of Barnes (Con)]

This debate should be what I think is called a “no-brainer” for anybody who believes in parliamentary sovereignty. I do not want to add to what has already been said on the subject. I find myself in the curious position, for the first time in my life, of beginning a speech by quoting the Prime Minister of Luxembourg. As the noble Lord, Lord Wallace, pointed out, his description of the—in many respects admirable—Mansion House speech was spot on: here we are, going down this flower-strewn path, from a position where we were members of the European Union with loads of opt-outs to one where we want to be outside the European Union with as many opt-ins as you can get on the back of a lorry. It is called a “bespoke” deal. I do not have many bespoke suits—most of mine are off the peg and on to the floor—and I think that it is more an “off the peg and on to the floor” deal.

However, it was after the Mansion House speech that the most significant question that anyone asked the Prime Minister was raised. After questions from all the “trusties”, a German journalist got up and asked the Prime Minister: “Is it all worth it?” The Prime Minister, perhaps excessively honestly, did not reply directly but just pointed out that we had had a referendum which had to be honoured. I think that some others, including some of her supporters, would have put the point rather differently. They would have said that it is of course worth it because—to use a phrase which has occurred again and again in this debate—we are going to take back control. I think that most of them would at least in principle have conceded that taking back control means this Parliament—the House of Commons and the House of Lords—having control.

I have been struck as we have sat through these debates by the elephant in the room: the person who in many respects is more responsible for us being here and having this debate than anybody else, the regularly occasional leader of the United Kingdom Independence Party, Mr Farage. When Mr Farage talks about taking back control and when some of our tabloid newspapers talk about it, they do not mean Parliament having that control—they mean them; they mean a populist way of running this country. I spent some time this morning looking at Dicey—I have not done that since I was an undergraduate. I looked too at what I think is the best book on the rule of law, by that great jurist and great man, Tom Bingham—I recommend it to noble Lords. I read again what he says about parliamentary sovereignty—the keystone of our constitution. When people talk about taking back control, what they should mean is Parliament having that control. When they talk about a “meaningful vote”, they should not mean a vote which does whatever they want. A meaningful vote does not mean that it cannot make any difference to the whole process of Brexit, which was more or less said the other day by the Secretary of State, David Davis —who had said that there would be a meaningful vote.

I hope that it is not unparliamentary for me to make this comparison, but the Secretary of State increasingly reminds me of a character in a PG Woodhouse novel, of whom it is said, “He’s like one of those people in a Tolstoy novel, living in those dreary birch woods, who’s just chopped up his wife, thrown the baby down the well, goes to the cupboard, opens the cupboard and finds that there’s no vodka in the bottle”. That is the position in which our negotiators are increasingly finding themselves.

On the constitution, the Secretary of State seemed to be absolutely clear: we must have a meaningful vote, but you cannot actually change what happens. It is important for this House to give an absolutely clear message that parliamentary sovereignty in our system is what happens in this House and, above all, in the House of Commons—I agree with what my noble friend Lord Hailsham said on this. This is an occasion when a lot of us will have to make speeches and say and do things which we never imagined we would have to in our political careers. I hope more people in future will take the advice of my noble friend Lord Hailsham and follow their conscience on this issue and assert the principle of parliamentary sovereignty.