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My Lords, as I understand it to be the will of the House that the next two Motions be debated together, I will speak to the Motion in my name, to be followed shortly by the noble Lord, Lord Boswell of Aynho, who will speak to his Motion. I welcome the opportunity that today’s debate brings the House to consider issues that arise from both your Lordships’ Constitution Committee’s report on the invoking of Article 50 and the European Union Committee’s report on parliamentary scrutiny of Brexit. I hope there may be benefit in debating these in tandem, as they are complementary in nature, and I look forward to the debate.
In our committee’s report, we did not feel qualified to offer a firm view on whether, as a matter of law, the Article 50 trigger should be dealt with by the royal prerogative or by involving Parliament, particularly since that very question was then before the High Court. Following the judgment handed down by the Divisional Court, the Government are now pursuing their case in the Supreme Court. The Government are of course fully entitled to appeal against the earlier judgment, and the Supreme Court is there to respond. However, there is all the difference in the world between appealing a court judgment and attacking the judges who delivered it, so I feel in no way inhibited from commenting on the disgraceful behaviour of certain quarters of the press and some Brexit campaigners, with their vicious vilification of three distinguished judges. The judges pronounced in good faith on a pure question of law. The attack on them was shameful. I find it strange, to say the least, that those who during the referendum campaigned most passionately to “take back control” should then choose to breach a core principle of our unwritten British constitution—namely, upholding the independence of the judiciary—and that they should do so by attacking judges who, in a British court, delivered a judgment that placed great emphasis on another core principle: the sovereignty of Parliament.
Our committee recognised, when considering the options for invoking Article 50, that there were persuasive arguments on both sides. But we concluded that, whatever the legal outcome, the constitutional position was clear. I quote from our report:
“It would be constitutionally inappropriate, not to mention setting a disturbing precedent, for the Executive to act on an advisory referendum without explicit parliamentary approval … The Government should not trigger Article 50 without consulting Parliament”.
I just referred to the advisory referendum, and it is true that, technically, it was advisory. But it is also true that the Government gave repeated undertakings to implement the outcome, whatever it might be. That adds force to the need now for all sides to agree that the Brexit question was answered by the referendum result. It is now time for Parliament to honour the decision that it placed in the hands of the electorate and for Parliament to carry it through. To paraphrase Dicey, the will of the people is not known but by the laws of Parliament. I do not see that as dismissing the outcome of a referendum but rather as an injunction to Parliament to implement it. The fact that both the holding of the referendum and the implementing of the result featured in the governing party’s manifesto at the last election adds force, in this House, to the argument. Parliament therefore has a duty to see that the will of the people is carried out. We live, however, in a representative democracy, not a direct one. In the end it is for Parliament to decide, not for the Government alone. Whether referendums are a good thing is a discussion for another day.
Your Lordships will have noted that Scotland and Wales have successfully applied to intervene in the appeal to the Supreme Court, claiming in Scotland’s case that any Bill to trigger Article 50 would require the consent of the Scottish Parliament. We had indicated in our report that we did not think such a Bill would require legislative consent from the devolved legislatures. However, if a Bill is brought forward, further thought may need to be given to its effect in light of any appeal decision. We had also earlier railed against the use of declaratory legislation in the Scotland Act and against citing the Sewel convention as a convention in legislation because of the uncertainty that could generate. I shall not comment further in advance of the Supreme Court judgment except to say that regardless of the outcome, it will be essential for the Government to work closely with the devolved Administrations over Brexit, as they have undertaken to do, and for this Parliament to work with the devolved legislatures in providing appropriate scrutiny.
When the Supreme Court reaches its judgment, it may say that the royal prerogative is appropriate, or it may decide that Parliament must approve the triggering of Article 50. It may or may not decide the form of that approval, whether by legislation or by resolution; at present, we can only speculate. If by legislation, the Government may choose to present a short, tightly drawn Bill, or a longer one touching on aspects of the negotiation process. We do not know. Legislation would create greater certainty, particularly if it were to lead, as seems inevitable, to the subsequent displacement of existing primary legislation. We suggested in our report that it could be used to set some preconditions to the triggering of the article, as part of the UK’s “constitutional requirements”. However, the time for that has probably passed, and time is an important factor in the calculation.
It would certainly seem unwise to include in a Bill any terms that disclosed aspects of the Government’s negotiating position, thus weakening their hand in Brussels. A resolution, whether passed through the elected House alone or through both Houses, could prove a swifter process than a Bill, but its authority would be open to subsequent challenge. Separate Motions for a resolution would be needed in each House. They would be amendable and might therefore lead to different resolutions emerging. I believe it is essential that the invoking of Article 50, which triggers the implementation of the electorate’s decision, needs to be with the approval of both Houses of Parliament. Unlike a resolution, statute law trumps other forms of law, and that is what I support. I also understand that the Government have indicated that, if the earlier judgment is upheld, that is the course they are likely to take.
Whatever the outcome in the Supreme Court, and whatever form is used to invoke it, Article 50 need not affect the process and form of the subsequent negotiations. It starts the clock and that should be done in a clear-cut and concise way. Parliament’s involvement in the subsequent negotiations has already been underlined by my noble friend the Minister, and by others in government. The Constitution Committee, like many others in both Houses, stands ready to play its part in that process.
I now defer to my noble friend Lord Boswell of Aynho, whose Select Committee has already produced an admirable report on how Parliament should be more fully involved, and surely has a further vital role to play. I beg to move.
My Lords, I am grateful to the noble Lord, Lord Lang of Monkton, for his eloquent introduction to the debate, and to his committee for its authoritative analysis of the important questions of domestic, constitutional and political principle that arise in relation to the issue of a notification under Article 50. We also await the judgment of the Supreme Court, and I shall not dwell further on Article 50.
What my committee’s report seeks to do, in contrast, is to give an appreciation and a structured outline of the whole Brexit process, and to identify the points within that process where parliamentary involvement will be required. We have broken the process down into four phases: a preparatory phase, in which we now find ourselves; a phase of formal negotiations in accordance with Article 50 of the EU treaty; the ratification phase, when Parliament will be asked to approve whatever agreement has been reached; and finally the implementation phase, when Parliament gives effect to the agreement in domestic law.
This is a logical sequence, but not necessarily a chronological one. In reality, these phases will have to overlap. Indeed, I welcome the Government’s intention to proceed with implementing key elements of withdrawal, by means of its great repeal Bill, in tandem with the negotiations. It is of course vital that once any agreement is ratified and takes effect, there be as seamless a transition as possible to a new legislative framework.
But these are all points of process; what really matters is the substance. What will Brexit actually mean for the people of this country and of the European Union? Will they, for example, be able to move freely within Europe in search of jobs? Will existing rights, whether of employment, property or residence, be respected? And what will Brexit mean for businesses? Will they be able to trade freely across borders? Will United Kingdom airlines be able to fly between European cities? Will EU fishermen continue to fish in UK waters? Will police forces still be able to extradite criminals to and from the European Union? The list of questions is almost endless and covers the whole bandwidth of government.
The EU Committee and its six specialist sub-committees are currently considering these questions. I warn noble Lords that we will be publishing a series of short reports in coming months, possibly as many as 20, covering what we see as the key issues—the ones that will most affect the prosperity and security of our nation and people in the years ahead.
The Government, of course, are asking these same questions as they prepare their own negotiating position ahead of triggering Article 50. But that is the rub. They are exploring all these vital questions largely in secret, and we all know next to nothing about the process whereby they are finalising their approach to the negotiations, let alone the goals they have set. Our report is a plea for effective, structured parliamentary scrutiny of the substance of Brexit. Too much is at stake for Brexit to be left to government alone, and for Parliament, as the seat of our democracy, to be restricted to providing a rubber stamp.
We have all heard Ministers’ refusal to offer a running commentary and their rejection of parliamentary micromanagement of the negotiations. With respect, these are Aunt Sallies. Nobody imagines that Parliament can itself conduct tough negotiations that will take place behind closed doors. However, if the Government do not expose their strategic thinking to scrutiny early in the process and embrace the opportunity of genuine dialogue with stakeholders within Parliament and beyond, they risk alienating those whose support they will ultimately have to rely on if the final agreement is to be implemented successfully. That is why in Chapter 2 of our report we conclude that “accountability after the fact” is simply inadequate, and it is why, in paragraph 35, we recommend that both Houses of Parliament,
“be given an opportunity to debate and approve the negotiating guidelines, at least in outline”.
That is absolutely fundamental to the legitimacy of the whole process. Incidentally, in my experience it would also be the expectation in most, if not all, other European Parliaments, were they to find themselves in this position.
Ministers have said in response that they cannot go into the negotiations with all their cards face up—they need to keep something back. There is of course an element of truth in that, but it is not always wise to clutch all your cards close to your chest. Occasionally, you need to play one to draw other cards out. In my view, the whole process of negotiation is one of creating a favourable atmosphere by gradually exposing your hand, and if, in doing that, you have the express endorsement of a sovereign Parliament at your back, you will be much stronger in your negotiating position.
So the Government need to strike a balance. They need to offer enough information to secure parliamentary and public buy-in, but not so much as to undermine their ability to negotiate in detail and to make the trade-offs that will certainly ultimately be needed. That is the theme of Chapter 5 of our report, on scrutiny of the negotiations. We feel that the negotiations cannot be a black box out of which an agreement magically emerges after two years. Parliament must be actively engaged in scrutiny throughout the process. That, I suggest, is why it is imperative that the House designate a specific committee to take the lead in scrutinising the negotiations. Only such a committee can provide the consistency and continuity of membership and staff to engage in sustained, thoughtful scrutiny over a period of at least two years, building up, one would hope, a relationship of trust with government, while of course respecting the confidentiality of sensitive information.
Some noble Lords may say, “Yes, but look at the number of debates we have been having on Brexit and at the number of Questions being tabled; surely more than enough is going on without appointing a committee to scrutinise Brexit”. But that misses the point. This House performs three key functions. It scrutinises legislation—and there is more than enough legislation coming down the track to keep this House and its legislative scrutiny committees busy. It is also properly a forum of public debate on major issues, and our debates, as this afternoon in the Chamber, perform a vital function in that regard. However, the House’s third core function is to scrutinise the Executive, and that scrutiny function needs different and distinctive structures.
The European Union Committee, which I chair, has scrutinised successive Governments’ policies towards the European Union, formerly the European Community, for the more than 40 years of our membership. It is not glamorous work. It is done largely by means of correspondence, supplemented by public and private meetings with Ministers and officials, and draws on the skills of highly expert Members and staff. It has teeth, thanks to the scrutiny reserve resolution. It works and it is still needed. It holds Ministers to account and acts as a vital discipline for officials, exposing and interrogating sloppy thinking, and it ensures that there is an audit trail for the many decisions taken by Ministers on our behalf in Brussels. Of course, it always leaves open the possibility that, on issues of major importance, it can make a report to the House and initiate a wider debate. That is what the House should aim for as we go into these negotiations: effective and sustained scrutiny conducted by a properly resourced and expert committee, drawing on the skills of Members and staff of the House, respecting the confidentiality of sensitive information and making reports to the House as appropriate on the key issues of principle that will undoubtedly arise, but with our emphasis throughout on fleetness of foot and flexibility rather than on covert obstructionism.
For such a scrutiny model to work, the Government will need to make a positive commitment to engaging with Parliament and to providing a steady stream of information to committees. The Secretary of State for Exiting the EU has already been helpful in indicating that Parliament will have equality of arms with the European Parliament in access to information relating to the negotiations. The noble Lord, Lord Bridges of Headley, has also been enormously courteous and generous in talking to Members across the House and listening to their concerns, and I would like to take this opportunity to express my personal thanks to him. But I hope he will agree with me that it is time now to focus our efforts on how we can all, working together, make a success of Brexit.
In conclusion, effective, engaged parliamentary scrutiny is not a threat to Brexit or the national decision. It is, or should be, the Government’s candid friend, and the best way to ensure an outcome that commands parliamentary and public support and that works to our benefit. I look forward to the debate and to the Minister’s response.
My Lords, I declare my outside interests as set out in the register and in the fourth report of the Select Committee on the Constitution, of which I am a member. I join my noble friend Lord Lang of Monkton in commending this report warmly to the House. I pay particular tribute to our clerk, Antony Willott, and his entire team, all of whom did a first-class job, ensuring that we heard all the necessary evidence and marshalled our arguments effectively. The fourth report of the European Union Committee, which has just been introduced by the noble Lord, Lord Boswell of Aynho, is also an excellent piece of work.
The House does not need me to remind it that we are in extremely choppy waters and largely uncharted waters at that. In the run-up to the referendum it soon became abundantly clear that a substantial majority of parliamentarians in both Houses felt that it would be in the best interests of the United Kingdom to remain within the European Union, but the people of the country were not persuaded. Much has rightly been made of the fact that the referendum was technically consultative and not binding, but that was done deliberately and after much thought, and it was approved by Parliament. That was not an accident. It was done in my view not to empower Parliament to ignore the will of the people but to ensure that Parliament should continue to play a vital historical role in safeguarding the national interest whatever the result of the referendum.
I join my noble friend in quoting from paragraph 24 and the reference to how constitutionally inappropriate it would be for the Executive to act on an advisory referendum without explicit parliamentary approval. The big decision of whether to remain within the political institutions of the European Union was handed to the people of the United Kingdom, but it was never intended to change the fundamental nature of our delicate constitutional balance, which has evolved over centuries. Indeed, one of the most powerful arguments on the leave side was that we need a reassertion of the authority and role of the United Kingdom Parliament in our national life.
“It is agreed on all sides that this is a justiciable question which it is for the courts to decide. It deserves emphasis at the outset that the court in these proceedings is only dealing with a pure question of law. Nothing we say has any bearing on the question of the merits or demerits of a withdrawal by the United Kingdom from the European Union; nor does it have any bearing on government policy, because government policy is not law”.
That statement is accurate and it puts paid to any suspicion voiced by some that the High Court was actively and inappropriately engaged in seeking to extend its remit.
Even I believe, however, that this state of affairs is a matter of some regret. The Government and Parliament were more than capable of working this out for ourselves, as these two excellent reports demonstrate. There is no criticism of anyone in this, but the involvement of the courts is an unnecessary sideshow as we all seek to protect the best interests of the nation at a time of great uncertainty. In responding to that judgment the Secretary of State, David Davis, stated:
“To leave the European Union was the decision of the British people. It was taken after a 6:1 vote in this House to put that decision in their hands. As the Government told voters: ‘This is your decision. The government will implement what you decide’—no ifs, no buts. So there can be no going back; the point of no return was passed on
Whatever my views were in the run-up to the referendum, I can only agree with and echo the Secretary of State’s words now. I also agreed with the crucial point made in another place by the Prime Minister on
“The UK is leaving the EU, but we are not leaving Europe, and we are not turning our backs on our friends and allies”.—[Official Report, Commons, 24/10/16; col. 26.]
The question now therefore is how best to proceed and how best to ensure that the national interest is protected as we move forward to a future outside the structure of the European Union. Perhaps I am just cautious by nature but, so far as the interests of British business are concerned, I strongly feel that we in this place need to think long and hard about how to deal with the customs union and the single market—which I remind many of my colleagues on this side was largely the invention of a Conservative Government led by the late Margaret Thatcher.
As my declared interest, I disclose a long-standing connection with the world of financial services, particularly with insurance. I believe that the UK insurance and reinsurance sector is the jewel in our crown, bringing much-needed stability to businesses, individuals and families, and in times of crisis to the economy as a whole. I must tell this House that there is considerable concern in the insurance sector and the crucial broking community about the terms of our departure from the European Union. More than 2.750 UK insurance brokers passport out to the EU and more than 5,700 passport in. The UK is the leading general insurance market in Europe. Members of the Association of British Insurers wrote around £3.6 billion using EU branches last year. For us to maintain this position, many colleagues in the wider insurance sector have told me in no uncertain terms that it is vital that they should be able to continue trading freely in the European single market once we have left the EU.
That is why I hope that Ministers will seek to secure an agreement on transitional arrangements for financial services before that definitive new trading agreement with the EU is negotiated. It is unlikely that a reliable agreement on passporting arrangements could ever be agreed in a short, two-year period. I would go further: surely we now operate on a five-year cycle, so I urge my colleagues to do their best to persuade our partners to agree an extension to five years. That would also enable the British public to have their say in the customary manner on the negotiated outcome at the general election in 2020.
The calm, considered and informed discussions that are the hallmark of this place are inevitably very different from the trademark cacophony of a national referendum campaign. The advocates of different forms of Brexit may all claim a popular mandate for the particular outcome that they seek, but it is not true. For better or worse, we live in an age in which public confidence in politics and politicians is at an embarrassing all-time low. When we said in our report that there must be a role for Parliament in the process of triggering Article 50, we were not attempting to arrogate to ourselves the capacity to overturn the referendum. There is and must be no question of setting ourselves above the people. Sovereignty ultimately belongs to the people; they entrust it to us on a temporary basis only. This is not merely about the amour propre of parliamentarians. On the contrary, we are seeking the opportunity to prove how effective we can be in taking a mature and balanced view as we work to defend and promote the national interest in the challenging times ahead.
My Lords, as the previous speakers have shown, there is a great deal of consensus in this House on the need for effective parliamentary scrutiny of the Brexit process. Both reports before us this afternoon are excellent, balanced and measured in their approach. In the EU Select Committee report, I highlight the conclusions contained in paragraph 35, which calls for both Houses to be given an opportunity to debate and approve the negotiating guidelines, and in paragraph 62, which calls on the Government to grant equivalent access to information to this Parliament as will be given to the European Parliament during the negotiations. Not to do so would, I believe, be politically unacceptable.
Sadly, we are living in an age when a balanced, rational and measured approach is viewed with deep suspicion by many of those who believe that we must quickly pursue a hard Brexit no matter what the cost to future generations, including a future generation who mostly did not vote to leave the European Union. As the noble Lord, Lord Lang of Monkton, said so powerfully, it is somewhat ironic that many of the same people who were calling for us to take back control during the referendum campaign and return decision-making to the British Parliament and the British courts are now strangely reluctant to allow the British Parliament to scrutinise the Brexit process effectively and have publicly criticised our valuable independent judiciary.
I will briefly tackle three subjects in my remarks this afternoon: the benefits of parliamentary scrutiny, the role of the devolved Administrations in parliamentary scrutiny, and the impact of our current UK debate on the Brussels side of the negotiations.
The Government regularly state that they will listen closely to the views of Parliament but that they will not give “a running commentary” on the state of the negotiations. However, does the Minister acknowledge that in the negotiations on the Maastricht treaty in 1991 under a Conservative Government, a Motion was brought before the House on the negotiating strategy? Moreover, in 1996, on the Amsterdam treaty, the then Conservative Government published a White Paper clearly setting out their negotiating strategy in considerable detail, which was then followed up in a debate in Parliament.
Brexit is an unprecedented challenge to this country and the impact of the decisions that we take in the next few months will be felt for generations to come. As the report from the Constitution Committee states, it is unfortunate that:
“The triggering of Article 50 has become, in many people’s eyes, a symbol of Government and Parliament’s decision to accept the referendum result”.
Parliamentary debate and scrutiny offers the Government a chance to reframe their position in a much more positive direction. Surely, shining a light into what our future will look like strengthens rather than weakens the decision-making process.
I went to Brussels a couple of weeks ago to gauge the mood post-referendum. Having worked for 10 years in the European Parliament in Brussels, I know that it is a transactional place where deals are done based on a complex mixture of relationships, enlightened self-interest and a genuine belief in the importance of maintaining the rules of the club. In the conversations I had with senior former colleagues they acknowledged that they need British trade but they believe that they can find that trade elsewhere, if necessary, if we insist on going outside the rules. It is also clear that the strident messages coming from this side of the channel are really testing their patience. In such a climate, there is very little appetite to accommodate demands for an à la carte solution.
As a Scot now living in Broadstairs on the Isle of Thanet—where Mr Farage stood at the last election—I believe that I have been exposed to the post-referendum emotions following the very different results in the different parts of the UK. Both now feel equally strongly that their point of view should be respected: Scotland voted 62% to remain and Thanet voted 64% to leave. I am sure that I do not need to stress the strength of feeling in Scotland and in the Scottish Parliament on this matter, but as someone who was firmly against Scottish independence I believe the road ahead needs to be treated with the utmost care.
Northern Ireland also voted to remain and the complexities of maintaining the Good Friday agreement once the UK is no longer in the EU are not to be underestimated. The involvement of the devolved Administrations in the Supreme Court decision early next month makes an already complex situation very much more so, as other noble Lords have said. Can the Minister spell out in more detail how the devolved Administrations will be consulted and involved in drawing up the negotiating framework and what he understands to be the constitutional arrangements should any devolved Parliament or Assembly vote against triggering Article 50?
In conclusion, I believe it is in the country’s as well as the Government’s own best interest to allow Parliament to have its say both on triggering Article 50 and on the negotiating mandate which will have such a profound impact on the future of this country.
It is a pleasure to follow the noble Baroness, Lady Suttie, who knows a great deal about EU matters. It is also a pleasure to speak in the debate on two such admirable reports.
I do not intend to say much about the Article 50 report now, because the issue is with the Supreme Court. I merely mention two developments that have occurred since the Constitution Committee finished its excellent report. First, on
Secondly, there is what the No. 10 spokesman said immediately after the High Court ruling:
“Government lawyers … made clear … that, as a matter of firm policy, notification of withdrawal will not be withdrawn”.
I am no lawyer, but as I read “a matter of firm policy”, implicitly the government spokesman was conceding that, legally, it could be withdrawn. However, the Supreme Court is about to speak on this.
I very much agree with the thrust of the report from the Constitution Committee, in particular with paragraph 43 that it would be,
“constitutionally appropriate that the assent of both Houses be sought for the triggering of Article 50”.
That seems the key point. Whichever route is chosen, whether it is an Act of Parliament or a resolution of both Houses, will presumably be settled by the Supreme Court. I am confident that, if the Supreme Court decides that the Government are correct and an Act of Parliament is not required, the Government will nevertheless submit a resolution, which will proceed through both Houses. I am confident of that because I cannot see any downside in it. The Government must be aware that this House and the other place would pass such a resolution by a large majority, for the reasons given by the noble Lords, Lord Hunt and Lord Lang. It is not possible to decide after the referendum that it produced the wrong result—the result is the result is the result—so there is no doubt that, for many of us with a heavy heart, the resolution would be carried.
I therefore rather agree with the noble Lord, Lord Hunt, that the Supreme Court case is a bit of a distraction and side issue. It seems that we are going to be given a vote. I also believe that that is correct because, in the end, the Government are bound to see that it is right to have a full debate on what kind of Brexit they intend to seek. The referendum, as the report of the committee chaired by the noble Lord, Lord Lang, pointed out, does not tell us that. The referendum answered a binary question, but it did not tell us what kind of Brexit we should be going for. That is what we now need to consider.
I agree with paragraph 6 of the Constitution Committee’s report, that the issue is,
“where among the range of potential outcomes the final settlement by which the UK leaves the EU will be made”.
I add only that Article 50 is clear that we cannot dictate the terms of our own departure; the 27 will also have their view. What is important for us now, however, is that the Government should be open and honest with the country about the terms they will propose when they trigger Article 50.
Up to now, that is not happening. Our debates in this Chamber are extremely well informed and have all the public resonance of one hand clapping. Anyone who as a child has played solitary tennis against a brick wall knows that the wall is better than the hedge. If you hit the hedge, nothing comes back. That is the nature of our debates. I have the highest regard for the noble Lord, Lord Bridges of Headley, but I hope that today he will prove to be a brick rather than a privet.
I agree with all of the report from the committee chaired by the noble Lord, Lord Boswell, but what struck me most was the astonishing quotation in paragraph 28, from the Secretary of State for leaving the EU—I refuse to say “Exiting”; it is not a verb. Mr Davis is quoted as saying:
“Before Article 50 is triggered, there will be a frustrating time, because we will not say an awful lot. We will say a bit; we will lay out guidelines but, as the Prime Minister said, we will not give a running commentary on it, because that would undermine our initial negotiating stance from the beginning”.
I find that really hard to construe. Our initial negotiating stance will not be a secret from the foreigners very long, because when we say it, they will hear it. How could it be undermined by being presented to the people and Parliament in advance? Would it not be strengthened? Would the Government’s negotiating hand not be rather stronger if they could point to the fact that the country, and Parliament, was with them, had heard them and supported, or did not dissent from, what they were trying to do?
If, as I suspect, the real reason is that the Government are in some difficulty in deciding exactly what their initial negotiating stance is to be—perhaps because the Foreign Secretary has failed to convince his colleagues that it is possible to have one’s cake and eat it for all the dossiers—might it not help the Government to decide what they should ask for, if there were an informed public debate about just that?
So, in my view, we need a Green Paper now. In my view, Mr Davis was absolutely right when he first spoke of a White Paper. I am sure that we need a White Paper and am pretty confident that we will get one, although I worry that we may get it rather late in the day. Ominously, he has gone a little quiet about the White Paper. I think that we need a Green Paper first. It would not directly concern the triggering of Article 50, nor what is going to happen, and nor would it directly concern the Article 50 negotiation as such. It should concern the framework for the future relationship between us and the Union that we left.
To quote from paragraph 2 of Article 50, the negotiators are required before they complete the Article 50 negotiation—which is the divorce negotiation—to take,
“account of the framework for … future relationship”.
A Green Paper could be a first draft of our prospectus, or proposals, for what that framework should be, and it would set out facts and options. A White Paper would be harder and would come closer to the time of the negotiation, but a Green Paper could explain to the country—which, frankly, does not know—what membership and non-membership of the customs union, and what membership and non-membership of the single market, actually mean.
What did the Prime Minister mean when she said in relation to a customs union that it was not a binary choice? I am not sure quite what she meant because it is, on the face of it, a binary choice, although some exclusions might be possible. I am not sure that it would be compatible with WTO rules to be members of the customs union only for certain goods—perhaps, for example, motor cars. I suspect that would not be possible.
I am not sure quite what assurances we can have offered to Nissan, therefore, or what assurances we could offer to Northern Ireland and the Republic in relation to the border between them, if we leave the customs union. But I think that the country is as ignorant as I am about this, and I think that the Government should come clean before they make up their mind. The Government should be telling the country what the choices are and what the upsides and downsides are of the various options. I know that the Foreign Secretary and Dr Fox believe that we must leave the customs union. I can understand that—for Dr Fox, it must be an existential issue—but it seems to me that it is not absolutely clear where Mrs May stands. Perhaps before she makes up her mind, she might like to see parliamentary debate on the basis of a Green Paper.
Is it the Government’s view that we could, or perhaps should, leave the EU but retain partial sectoral membership of the single market? Sometimes, that seems to be the Chancellor of the Exchequer’s view. We might remain members of the single market in financial services, for example. For myself, I am not sure whether our partners across the channel would be willing to see such cherry picking, particularly in the light of the Prime Minister’s Birmingham speech rejecting any role in this country for the Court of Justice or for regulation written in Brussels. Could we stay on the field, carrying on playing but bringing our own referee and playing to our own rules? I am not sure. That could be a tricky negotiation.
It follows that I am not really sure what soft Brexit means. I am not sure that there is a feasible soft Brexit; I fear that may be wishful thinking. Mr Tusk said on
Yesterday, we saw Mrs May assuring the CBI that she understood the need to avoid a cliff edge, and the commentators all interpreted that as meaning that some kind of transitional, temporary or interim deal would be required. Yes, I see the argument, but I have difficulty with it. Building a bridge requires clarity about where you want to be on the other side. It is difficult to envisage concessions for an interim arrangement that would not be accepted in a permanent arrangement. One needs to have a degree of clarity, and agreed clarity, about where one is heading—which brings us back to the framework for the future relationship. That is where we should concentrate now.
I would say that there are elements of that framework that it would be possible for the UK to signal its thinking on right now. For example, I believe that the Prime Minister’s Home Office experience will lead her to think that continuing close co-operation with the EU that we left on issues such as terrorism, drugs, crime and people trafficking is a good thing, and that an institutional arrangement for such co-operation would be desirable in the UK interest. I believe that would also be seen as desirable by the 27 in their interest.
Secondly, I believe that the Foreign Secretary will by now have realised that it is not really wise to boycott EU meetings if one thinks they might come up with the wrong answers. If one thinks that, the thing to do is to go and make sure that they do not. That is his job. I suspect that he will come to understand that working closely with EU partners—in future, former EU partners—will remain important to British foreign policy after Brexit. Could not our draft of the foreign policy pillar of the future framework be written on precisely that principle and say just that? We will want arrangements for co-ordination on foreign policy, security policy, exchange of intelligence and action on sanctions in future. I believe that will be our position. It probably is our position now, although we have not said so yet to anyone.
Thirdly, I believe that the Government are probably listening to the research community and the universities. I believe the Government probably think that they will, in the end, propose an arrangement whereby we contribute financially to, and receive support from, the EU research programmes, and the networks survive. I think that will be the Government’s position. I suspect that, privately, it is their position now. I do not see any downside in making clear that that would be where we would want to be in a framework negotiation.
It could be argued that to offer positive proposals at this stage for the future framework would give away our negotiating capital. That is nonsense. Much of the Article 50 negotiation—the money negotiation—will be a rough, zero-sum negotiation, but most of the framework negotiation will not be. In the framework negotiation, one will be talking about common interests, mutual interests, and will be trying to define the right future structures for pursuing these interests.
I believe that highlighting these themes now would bring benefits, not costs. In fact, I think it is becoming very urgent to do so. As the noble Baroness, Lady Suttie, said, the atmosphere in Brussels is not good and is getting worse. The Birmingham speeches, the sense that the Government are talking only to themselves, making policy in an echo chamber, the gratuitous insults from the Foreign Secretary, the random pronouncements of various Ministers, usually immediately followed by a slap down from No. 10, leave our friends—and we still have some friends in Brussels—close to despairing. They fear that there is no plan, and that when one emerges it may be rather unrealistic. They see a growing risk that the Article 50 negotiation will fail, and we will go over the cliff edge into legal chaos.
I think this is probably exaggerated, and some of these concerns could be met and would be met if the Government were to present at least a partial prospectus setting out aspects of the future relationship that they would like to see. I believe that on some aspects—I gave three candidates—they could agree now on what it is they want and there would be no downside to coming clean about it. As the noble Lord, Lord Hunt, said, Mrs May has said that, when we leave the EU, we will not be leaving Europe. Excellent. Could we not define and explain what we mean by “not leaving Europe”? That would counter the stuff in the press here that is so widely read in Brussels.
I think that a smart Brexit is not impossible, but it needs smart preparation, and I am not sure it is getting it now. Smart preparation means beginning a new, real dialogue with Parliament. The determination of precisely what kind of Brexit the country wants must entail a role for Parliament. It means being smart about the signals we send across the channel—smarter than we are being right now.
My Lords, it is a great pleasure and a daunting experience to follow the noble Lord, Lord Kerr of Kinlochard, whose knowledge of the practical working details of the Community and of the whole area is more or less unrivalled. It is very helpful to all of us to have his views and experience.
My own direct experience of the EU is dated—to the 1980s and early 1990s—and limited: it was when I was at MAFF and then Secretary of State for Transport. I have to say that sometimes I felt my MAFF experience meant that the former was a full-time Brussels commitment. I have many memories of the difficulties but also of the opportunities that arise. The noble Lord, Lord Kerr, and other noble Lords steeped in EU work have particular knowledge of EU negotiations, and not least the timescale and intensity of what we now face, of which I believe our fellow countrymen are totally unaware. That is a theme that I want to come back to.
Here I follow my noble friends Lord Lang and Lord Hunt: the almost hysterical reaction from some of the media and elsewhere to the recent High Court judgment, with headlines like “The Judges Versus the People” and “Enemies of the People”, to quote but two, was ill-judged, unfair and uncalled-for. The judges were not expressing a political view about withdrawal from the EU but simply stating that such a withdrawal requires parliamentary approval in the form not of a vote but of a statute. I quote:
“Parliament having taken the major step of switching on the direct effect of EU law in the national legal system by passing the European Communities Act 1972 as primary legislation, it is not plausible to suppose that it intended that the Crown should be able by its own unilateral action under its prerogative powers to switch it off again”.
In other words, far from undermining the people and presuming more powers for themselves, the judges were actually performing their proper constitutional role and upholding the supremacy and powers of Parliament itself.
The judges were not the only ones to make this point; as my noble friend Lord Lang pointed out, our own Select Committee, of which I am a member, in its report on the working of Article 50 published in September, before the High Court hearing, concluded that,
“an Act could make clear that Parliament had given its authority to the Government to start a process that might well lead to existing legislation being repealed or substantially amended,” and that any Act of Parliament would ensure that any constitutional uncertainties were avoided. That is an important point that we made. So I believe the judges were completely justified in the position that they took. I emphasise the vital role of both Houses in all these matters—and that is what we were endeavouring to make clear in our report.
I turn to the EU Committee’s excellent report on The Process of Withdrawing from the European Union. One needs only to dip into it to see how tortuous and complex the negotiations will be. I have two questions for the Minister arising from the report. First, conclusion 15 on page 5 states:
“There is nothing in Article 50 formally to prevent a Member State from reversing its decision to withdraw in the course of the withdrawal negotiations”.
I ask the Minister: is that a possibility and what will the terms be?
Paragraph 30 of the report states:
“One of the most important aspects of the withdrawal negotiations would be determining the acquired rights of the two million or so UK citizens living in other Member States, and equally of EU citizens living in the UK”.
The report describes this as a “complex and daunting task”. The Minister will know that this is already causing great concern to many such citizens. Can he give us any information as to the progress on this matter and some consolation to those concerned?
The comments of Sir David Edward and Professor Derrick Wyatt in paragraphs 31 to 60 make compelling reading. One little practical point resonated with me, when they were referring to the difficulty of some of the negotiations. They took as an example member states that would have interests other than those absolutely being discussed in the Council at the time. Professor Wyatt said:
“If I am a hypothetical east European country, with a very obvious and genuine interest in both the position of my nationals resident in the United Kingdom and the future access of the UK, I might not be interested in fisheries as such but I might want to block a deal on fisheries unless I get what I want on transition and future access for my nationals”.
That is just one simple example of where all the complexities will arise.
In comments in chapter 5 about the length of the negotiations, Sir David said:
“The long-term ghastliness of the legal complications is almost unimaginable”.
There is another clear example of the complexities of the negotiations. I do not envy the negotiators.
In paragraph 54, the committee, referring to its evidence, concludes:
“No firm prediction can be made as to how long the negotiations on withdrawal and a new relationship would take if the UK were to vote to leave the EU. It is clear, though, that they would take several years—trade deals between the EU and non-EU States have taken between four and nine years on average”.
The report continues:
“It would be in the interests of the UK and its citizens, and in the interests of the remaining Member States and their citizens, to achieve a negotiated settlement. This would almost certainly necessitate extending the negotiating period beyond the two years provided for in Article 50”.
I think we all recognise that it is likely to be extended beyond the two-year period, but it is the implications for further trade deals and so on that I do not believe that the British public are yet aware of.
It would be in the Government’s interest to prepare the public for a long haul. I have not even had time to comment on the role of the European Parliament, wider international trade negotiations and so on. They, too, are self-evident but are not being talked about by the public as a whole.
In conclusion, the committee’s report on the process of withdrawing from the European Union deserves the widest possible circulation. I do not think that the complexities and timescale of the forthcoming negotiations have yet begun to sink into the public consciousness.
My Lords, there have been few times in recent decades when there have been more divisive issues within the United Kingdom. The start of the 1980s and the miners’ strike was perhaps equal to it, but the EU referendum that we have all passed through was a time of great division within our country. It was a time when people were unable to judge what was truth and what was not, and I think the voters generally assumed that everything that they were being told was not the truth. There was a divide between younger and older people; certainly, my own two daughters were left far more desolate by the result of the European referendum than I was. There was a division between those who live the metropolitan life and those outside. There was division between the four nations of our country, with a different result in Scotland and Northern Ireland from that in Wales and England. I suspect that in Northern Ireland there was a hardening of community relations as a result of the referendum.
So there is a great division in our country and one that needs to be healed. Those in favour of Brexit, who won that referendum, often remind us that there have never been a larger electorate than those who voted for withdrawal from the European Union. It was a decisive result. On the other hand, I could say that more people never voted against something, in terms of the 16 million who voted for remaining within the European Union. There is a huge challenge in trying to bring this country together following that momentous decision. It seems to me—and I say this in a non-partisan way—that the way in which the Prime Minister and the Government are currently approaching this is to seed further division rather than building bridges to mend those divisions.
One of the ways in which the Government could start to put that right and make the 16 million people who voted the other way feel slightly more valued than they are at the moment is to involve a much wider community in terms of how this nation moves forward. It seems obvious that the most important way to do that is through Parliament and to use debates and propositions to Parliament to communicate far more widely and use it as an amplification to our electors and citizens more broadly. That is a fundamental role of Parliament and such an easy way in which the Government could start to find a way of healing. We could all collectively, not just in Parliament but more broadly, find a consensus—as much as we can find consensus—or a smart way to move forward from where we are at the moment. My sincere feeling is that the Government cannot get through this process all the way that they need without having that consultation and much broader conversation, and taking them seriously rather than just listening and giving no feedback whatsoever, as the noble Lord, Lord Kerr, said so well. That is fundamental to the parliamentary role. It is about healing the nation rather than just the fact of the constitutional position of a parliamentary democracy.
The other area is around tone; again the noble Lord, Lord Kerr, said something on this. We have had a number of interesting meetings and evidence sessions within the European Union Committee, led and chaired by the noble Lord, Lord Boswell. One of the most interesting was when we undertook our Irish inquiry. We were very privileged as a committee, and indeed, as a Parliament, to have two former Taoiseachs come before us—Bertie Ahern and John Bruton. They are both very well-regarded statesmen within Europe. One of the questions I asked was: “If you were advising the British Government, what advice would you give them in terms of negotiations towards Brexit?”. John Bruton came back very quickly and said very firmly that the most important thing is for the British Government to argue a common cause of not just what is good for the United Kingdom but what is good for Europe as well. Yet I do not sense that tone in the conversations, or the lack of conversations, that the United Kingdom is having at the moment with our allies and—to-be-former—fellow member states in Europe.
That has not been helped, whether by the Foreign Secretary deciding not to turn up at a meeting of European Foreign Ministers to talk about the President-Elect of the United States, who he has already insulted—I agreed with his earlier comments—by the Secretary of State for Brexit describing Guy Verhofstadt, the negotiator for the European Parliament, a key institution in this, as Satan; or by the Prime Minister understandably, but wrongly, sounding aggressive and standing up for the United Kingdom in the typical way at a Conservative Party conference. None of these things helps the national interest at all.
In terms of tone, it is a question of who the Government speak to. I think it was the Foreign Secretary—it was certainly one of the Secretaries of State—who talked to a Czech newspaper and gave far more information about the future negotiations than had been given to ourselves or the British press. Nobody in this House knows the details of the Nissan deal whatever. That all shows that the Government are not trying to be inclusive, show a way forward and bring the nation together. The tone is around individual conversations, excluding everybody else.
The last thing I will say echoes the comments of many other Members of this House. The Government need to get real. I say that with respect, because the task that the Prime Minister has is one of the most difficult that any British Prime Minister has ever faced in modern times: how to extricate ourselves from the European Union. However, they have to come forward to Parliament and therefore to the nation with what their negotiating position will be. The opposition on the other side of the table will know that proposition as soon as we present it. Let us have a White Paper or a Green Paper to make sure that we are fully involved in that. If we do not undertake that exercise, do not include Parliament and with it the rest of the nation and the 16 million who voted for remain, as well as the 17 million who voted for Brexit, this will continue to be a very divisive process and one that will fail. That will not be in the national interest.
My Lords, we should be immensely grateful to the chairmen of the committees, who have presented two reports of considerable importance given the general confusion about what is going on following the referendum result. It is interesting that the House of Lords is taking the lead in providing such reports. I hope they are regarded as obligatory reading in another place and that the Library, which has been producing excellent information, will ensure that it is reflected in the other Library. I also hope that as things progress, the various Select Committees of both Houses—particularly the departmental ones in the other place—make a considerable contribution.
Those of us who sat through debates on the Bill that set up the referendum will be only too aware that it was an advisory referendum. That is an important point to stress but, as my noble friend who opened the debate pointed out, it was against the background of considerable political commitment to implement whatever the referendum produced.
We ought to spend a moment considering the whole issue of referendums, because one thing has emerged clearly from both the Scottish and EU referendums: they can be immensely divisive, and so they proved to be. They show clear divisions of opinion and create a situation in which it is easy for the public to be lied to and misled. I think that happened to a very significant extent in the referendum on our European Union membership.
I personally have always been totally opposed to referendums. They are often said to be democratic. However, they are not democratic in the sense in which that is usually meant in this country. We have a representative parliamentary system of democracy but the reality is—I think this is increasingly apparent—that that can come into conflict with a referendum result. There is a huge difference between those two situations. A referendum takes a very generalised approach and is open to a lot of confusion, whereas in a parliamentary democracy the Houses of Parliament can take into account all the arguments in great depth and detail, subject them to scrutiny and make sure that minorities’ interests are taken into account. It is absolutely clear that the referendum we have just had is effectively the dictatorship of a majority. That is something we ought to be concerned about.
We should be grateful for the very clear statement on this issue in the Constitution Committee’s report, which points out:
“The legislation that enabled the EU referendum did not set out how the result would be implemented … Parliament may wish, in future, to ensure that detailed consideration is given to how the result of any referendum will be implemented in advance of the vote … occurring, and … whether explicit provision should be made in the enabling legislation … to implement the outcome … or … instruct the Government”, on how they should act. After the in some ways rather sordid events of the last referendum, we must sit back and decide whether we want to go along the referendum route at all. If we never have another referendum, I, for one, would not be upset.
On the more detailed provisions, the Government’s reaction has been to treat—
If there were to be another referendum, which side does my noble Friend think would win? Contrary to what is written in some newspapers, a lot of people say to me, “I voted remain but actually, I am delighted with the result and I am working towards a very good end for Brexit”.
Since I am not in favour of any more referendums, that question does not arise. However, I certainly do not think we can go on having a continuous series of referendums in which we decide whether the result of the previous one was right or not. That would not be a very satisfactory situation.
I find the Government’s attitude somewhat puzzling. I do not understand why the Prime Minister seems so determined not to allow Parliament to play a role, to the extent that the matter was submitted to the courts. Surely we want an element of co-operation now, which I hope we will have. None the less, the Prime Minister has seemed very reluctant to have any parliamentary involvement if she can possibly avoid it. It is worth mentioning a specific point regarding the courts. In an earlier report the Select Committee took the view that the decision to implement Article 50 could be reviewed in the course of the two-year period. At the end of the two years, what has been negotiated might well be clearly less favourable than the situation pre-Brexit, and we will want to change our minds. The Select Committee’s previous report said that it was clear that we would be able to change our minds. In considering this matter the court took a common ground between the two sides before it, but it is still rather undecided. I hope that when the Supreme Court considers the matter further, it will be made clear whether we can change our mind during the two-year period.
Finally, on the way the negotiations are to be conducted, the summary of the European Union Committee’s report makes it clear that:
“It is inconceivable that these negotiations should be conducted by the Government without active parliamentary scrutiny”.
The report then looks at the various ways that might take place and suggests a middle course whereby Parliament is involved and there is interchange between the Government and Parliament. The paragraphs I have referred to and the summary effectively set out a shopping list of the information Parliament ought to have during the negotiations. There is a good shopping list on page 3 of the report. I hope the Minister can confirm that that is an appropriate way for us to proceed and that the Government will ensure that, while we will not have a running commentary, Parliament will none the less participate to a considerable extent throughout this process until we are able to reach a final decision. At that stage, Parliament will need to decide whether the deal that has been struck is better than the situation we had before Brexit.
My Lords, it is a pleasure to follow the noble Lord—as ever, logic and common sense ran throughout his remarks. I declare my interests as set out in the register of the House and in particular as a member of the European Union Select Committee. I also add my thanks to our chief clerk, the very excellent Chris Johnson, and his clerking staff for their work. It was a short and intense inquiry and drawing together the many strands into a cogent report was a testing task, and he did it very well. I also pay warm tribute to our chairman, the noble Lord, Lord Boswell, ever the provider of a bon mot in our long meetings.
In what is an incisive report, the Constitution Committee has yet again tackled a complex issue with great clarity and admirable brevity. I certainly found it very helpful. The conclusion of the report, in its final paragraph, notes:
“Parliament and the Government should, at this early stage, take the opportunity to establish their respective roles and how they will work together during the negotiation process”.
The all-consuming national conversation that is Brexit has a common single theme, and that is, in various forms, a demand for clarity. There is of course a wide understanding that one cannot have clarity where such clarity would be damaging to the United Kingdom’s interests, or where it is not reasonable to feel that clarity can yet exist. However, it is hard for this House to hold the Government to account properly on the matter of clarity when we ourselves are unclear as to how we will scrutinise Brexit.
The framework for our scrutiny is a matter for the House, and I know we all agree that we need to move quickly to establish that. The European Union Select Committee report, in chapter 9, “Internal arrangements”, addresses how this clarity might be achieved. As a star-studded cast—the noble Lords, Lord Kerr and Lord Boswell, and the noble Baroness, Lady Suttie—has said, I stress that good scrutiny is a great help to the Government and to the nation, endorsing good outcomes, analysing tough situations, and using the knowledge and experience that is to be found in the Select Committees greatly to help and guide negotiations.
In our report, at paragraph 98, the committee states:
“we reiterate the recommendation in our July 2016 report, that the House of Lords can best contribute to effective parliamentary oversight of the negotiations by also charging a specific Select Committee with explicit responsibility for scrutinising the negotiations”.
I feel that Select Committee should, and must, be the European Union Select Committee. This is not a sort of land grab; it is simply a practical point. I make it with two important provisos, which I will come to in a second.
There are 25 members of professional staff in the European Union Select Committee structure. Members of this House who are part of that structure comprise nearly 10% of the House. I am told that former members comprise another nearly 10%. In short, the committee and its sub-committees are a deep repository of experience and knowledge and have the resources to be effective right away. I have a great fear of an “all new” structure as, in my long experience, “all new” structures take time to bed in, take time to mature and would be unlikely to “hit the deck running”. This option, to my mind, would be most unwise for our House to follow.
I turn now to my provisos. To make sure we do not trip over each other, I feel, first, that the committee should have a regular interaction with the Liaison Committee on a formal basis. Secondly, there should be a regular and formal interaction with the chairmen of all the standing committees of the House. After all, it is important that we use the full resources of the House on Brexit matters. I certainly accept that the other committees must be part of the scrutiny process and continue to undertake inquiries that, through this structure, will be carried out in a co-ordinated fashion. I believe this, or a similar framework, would give satisfactory clarity as to how the Lords will conduct Brexit scrutiny. To go back to what I first said, I think we can then justifiably hold the Government to account for lack of clarity on their side.
Regarding clarity about what access to information the scrutiny function has, this is unclear as well. However, we have been much helped by the words of David Davis, to which the noble Lord, Lord Boswell, referred earlier. I shall quote them in full; they are very brief:
“We will certainly match and, hopefully, improve on what the European Parliament sees”.
Indeed, laid out in box 1 of chapter 5 of our report is what the European Parliament is meant to see. This is therefore what will be available, and I feel it should be available, although I feel that “data room” rules should apply to all Members who access “data room” information. In other words, that would mean a confidentiality agreement, which I suspect would not be dissimilar to the Official Secrets Act regime of the Intelligence and Security Committee of Parliament.
In summary, for scrutiny I would ask for framework clarity as soon as possible and urge the Leader of the House, the Senior Deputy Speaker and appropriate others, including the chairmen of the Select Committees, to agree on a framework very rapidly and bring proposals forward to the House for adoption. Clarity on access to information can follow on afterwards as it will need the consent of government. At the end of my first, rather long, point, I would like to ask the Minister: does he agree that clarity on Lords’ scrutiny on Brexit would be helpful from the UK’s and the Government’s perspective?
So much for scrutiny; I now turn to my second, final and much shorter theme, which is communication. Being in the privileged position that I am on the EU Select Committee, I am more than aware that a lot of commendable government Brexit work is going on. This is augmented, in my case, by various private briefings from City sectors, and I would like to associate myself with the words of the noble Lord, Lord Hunt. I come from an underwriting background, and I think it would be a great pity if the underwriting excellence and “world-leading-ness” of the London market were to be damaged in any way by the Brexit process. I am very grateful for the chat that I have already had with the Minister on that point. Of course, briefings from the private sector come from everyone on the planet. I find that it does not matter whether it is a taxi driver or a very senior person on a board; they all want to talk about it and give their view.
I am struck that the media seem entirely to lack understanding and certainly promote a lack of understanding among the public, and I think that this should be addressed at a very early stage. The Scottish Government reportedly have more than 40 professional staff whose sole aim is to put out their message by and in the media and directly to the people. I do not know how many communications staff there are in the department for Brexit at the moment but, as I listened to the noble Lord, Lord Kerr, talk about smart Brexit, I thought, “Gosh, that needs to be put out to the public, because it is a very appealing thought”. However, I suspect that there are not nearly enough people in the department to do that at the moment. Accordingly, I urge the Government desperately greatly to beef up their Brexit communications function in numbers of people and capability, and I close by asking the Minister to comment on that thought.
My Lords, at the outset, I join those who have commended the work of the two committees and their chairmen, and say that I share the general thrust of what has been said hitherto in the debate. Secondly, as someone who until just the other day was the chairman of a newspaper company—albeit a local newspaper company—I join in the comments about the treatment by certain newspapers of the High Court judges. It seems to me that they completely failed the test of fairness in that there was no evidence to justify what was said.
Our joining of the EU in the 1970s and, now, our withdrawal are events that amount to a constitutional revolution and are sui generis. We need to recognise that quite separately from the political issues and other merits involved, and I do not intend to discuss them this afternoon.
The referendum vote in June was, on the surface, a binary choice—but, of course, it was not really that, as a number of us pointed out before the referendum. The decision to leave opens up numerous possibilities and poses many more questions than it answers. The Prime Minister has told us that Brexit means Brexit. On one level that is absolutely correct and on another it is completely meaningless, but perhaps most usefully it simply describes the consequences of a majority of voters voting to leave the European Union. That means that we now have to take decisions about a series of options, which range from so-called soft Brexit to so-called hard Brexit—and there seems to be absolutely no consensus about that. To put it another way, our relationship with the European Union might range anywhere from that enjoyed by Norway and Switzerland to that of North Korea. All are within the compass and definition of Brexit.
Against this background, what should the Government do and what should Parliament do? It seems to me that the Government’s response is essentially their own affair within the constraints of the law and of politics. However, the position of Parliament is perhaps less clear, as nothing quite like this has ever been done before. On top of that, we no longer live in a world where there is a complete demarcation between home and abroad—as was the case, for example, 100 years ago, when ambassadors were plenipotentiaries, whereas now they appear to be salesmen.
The reality is that in a politically and economically interdependent world it is not possible to decouple from abroad unilaterally. The process through which this country is now going will have huge repercussions domestically—politically and economically —and diplomatically, and Parliament has to engage directly with these matters. We are not, as the noble Lord, Lord Kerr, said in his evidence to the Constitution Committee, withdrawing from some relatively small international treaty. It is generally accepted that this is a once-in-a-generation, or even a once-in-a-century, change which is likely to have a far greater and more long-lasting impact than, for example, the result of any general election.
As has already been said, in the recent Brexit/Miller case in the High Court, it was ruled that Article 50 cannot be triggered without parliamentary approval. I believe that a process of proper parliamentary scrutiny and accountability should be attached to any grant of approval that might be given. On the other hand, were the Supreme Court on appeal to set that aside, I still think that Parliament should insist on political involvement, not least because leaving the EU and the terms of so doing will, as my noble friend Lord Gardiner said in his remarks just before this debate began, set the framework for the great repeal Bill. The only realistic way for Parliament to play a full role in scrutinising and dealing with any possible great repeal Bill is to get involved in the process of withdrawal. The Government have offered consultation, and of course that is welcome—but it is insufficient in the way it has been put forward.
From my perspective, it seems that there are three parts to this. The first is that before Article 50 is served, Parliament should be given a clear indication of the journey of travel posed and the generality of the type of Brexit sought. It does not seem to me to matter what colour paper that may be, but we need to get the evidence. Apart from anything else, I am sure it is inconceivable that the Government would go into these negotiations aiming to fly blind. This might, by analogy—although the comparison should not be stretched too far—be a bit like the Long Title of a Bill.
Secondly, it is agreed that, once discussions are under way, there should be scrutiny by committees. That of course seems sensible. In addition, I believe that there should be, from time to time, regular but not too frequent full debates on the Floor of the House. I say that because a number of Members of your Lordships’ House are not members of the relevant committees or any committees; some issues—for example, those arising out of the possible future of the European arrest warrant—are not merely technical but have much wider significance in the context of Northern Ireland and the Good Friday agreement; some things that are being debated may have very considerable ramifications for the state of the union between England and Scotland; and there may be events in the outside world that have a profound impact on the wider politics of all this, and they should not be ignored.
Thirdly, the draft final agreement should be approved by both Houses before it is signed, just as Bills are signed off by both Houses before they go for Royal Assent. If Parliament does not like what the Government bring forward for Brexit, it must know that the Government have to go back and ask for something different. Otherwise, you run the risk of complete legal anarchy and muddle.
There is also the possible matter of compromising our negotiators. However, for many years, business has been conducted in the Council of Ministers, much of it in private, where the generality of the UK’s position is known but the detail is confidential. This seems to have worked administratively entirely satisfactorily, so I do not think that it is a real-world problem, if carried out properly.
Finally, on the matter of certainty, Brexit will inevitably be a drawn-out—possibly a very drawn-out—process. Clearly business wants and likes certainty; as someone involved in business, I know that only too well. But it is more important to get it right in the long run. Compared to that, short-term certainty is a second-order issue.
My Lords, the Constitution Committee, under the wise leadership of the noble Lord, Lord Lang of Monkton, gave the Government some helpful advice. I do not really understand why the Government did not take the advice—I fail to see why they did not go ahead and seek parliamentary approval to invoke Article 50. The appeal to the Supreme Court is pointless, unless the Government’s wish is in some way to re-establish the primacy of Crown prerogative, even when to do so would enable them to overturn statutes by executive action. That leads me to fear that, in relation to both Article 50 and the Brexit negotiations, the Government’s wish is to minimise parliamentary involvement. Warm words have not allayed my suspicions, which are based on the positions that the Government have taken so far.
The Constitution Committee’s clear view is that invoking Article 50, assuming it to be irreversible, requires parliamentary approval as a matter of constitutional propriety and practical utility. Of course the Government may want to go to the European Court of Justice and demonstrate that it is possible to revoke Article 50, but Sir Humphrey would regard that as a courageous course for a series of reasons that I will not go into.
As the noble Lord, Lord Boswell, pointed out, there are four distinct stages to this process and Parliament needs to be involved in all of them. In practice, it is naive to imagine otherwise. As his committee points out:
“Too much is at stake for the Government to seek to limit parliamentary scrutiny to establishing accountability after the fact”.
I describe the stages slightly differently. The first one is Article 50 and the negotiating stance on which the Government seek to invoke it. The second is the process of negotiation. The third is approving an agreement and deciding whether the British people should be given an opportunity to accept or reject that agreement, while the fourth is implementation, which of course is completely impossible without Parliament. I shall make two points about two of these stages.
First, it is completely unrealistic for Ministers to suppose that the negotiation stage will be conducted in secrecy. The negotiations will involve the Commission, the European Parliament and 27 national Governments in addition to ourselves. They will leak, if not like a sieve at least as much as my old watering can; and in any case, as the European Union Committee has pointed out, the European Parliament will have access to all documents and can require formal responses to its recommendations. As the EU Committee argues, this Parliament must have at least the same level of access. There has been some indication that the Secretary of State has accepted this principle, but he is only one of a triumvirate, and who knows what the other members of it will think. They will probably tell us quite soon.
Sometimes it will be to the advantage of our Government’s negotiators if they are seen to be under pressure from the UK Parliament on a point they are being pressed to concede, but there will be a stream of informed and sometimes biased speculation coming out of the process that will give rise to debate and questioning here in this Parliament. Of course the outcome of the negotiations will have a profound effect on the livelihoods of millions of our citizens, so these things must be debated.
My final point concerns a very serious fear. If the Government are intent on limiting the role of Parliament at all stages of this process, those who thought that they were bringing power back to the British democratic system will find that they have been cheated. If the vast corpus of European legislation comprising tens of thousands of regulations, directives and legal judgments extending into most corners of public policy and private rights is to be migrated into UK law by a single Act followed by a mass of secondary legislation, it will be a disaster. Secondary legislation which has not gone through a proper amendment process in both Houses will necessarily be littered with defects—we know that from experience. It is also wrong in principle that rights should be taken away or amended by such a process. The people who voted to bring back UK parliamentary sovereignty will find that they have created executive supremacy over laws they thought they would gain the ability to change. It could be the biggest transfer of power from Parliament to the Crown since the Civil War. Not for the first time the attractions of a revolution against the established order, even one achieved in a democratic referendum, will fade when the revolution ushers in a regime that is more authoritarian than that which it replaced, and one less able to deliver prosperity and security.
My Lords, I congratulate the noble Lord, Lord Boswell, and his committee on their excellent report. We should acknowledge that this House has huge authority but also that, within it, one of its most reputed parts is the European Union Committee and its sub-committees. It is one of the most respected bodies not only in both Houses of Parliament but throughout Europe. The European Union Committee is held up as an authority to be listened to and respected. When it says that it believes that Parliament can play a vital role in offering constructive and timely comment on both the process and the substance of the negotiations and that such scrutiny will contribute to a greater sense of parliamentary ownership of the process, strengthening the Government’s negotiating position and increasing the likelihood that the final agreement will enjoy parliamentary and public support, I think that we should listen.
The committee has said that Parliament has a duty here, which is the crux of this whole matter. Let us go all the way back to Oliver Cromwell and what he did when King Charles went too far. The principle of parliamentary supremacy was then established once and for all. Cromwell was the most famous alumnus of my college at Cambridge, Sidney Sussex, and his statue still stands outside Parliament even though he was responsible for killing a King. The principle of parliamentary supremacy was established when things went too far. Let us fast forward to today. We are talking about a situation where we must ask: is it the will of the people that Brexit means Brexit, or is it for parliamentary democracy? Then it is all about the individual who is to sit on the Woolsack, where for centuries we had the legislature, the judiciary and the Executive all in one person—completely conflicted but not giving rise to a problem for centuries. There was no need to establish the Supreme Court because we had a perfectly good working system right here in the highest court in the land, the House of Lords.
Now, this is all about the balance and the wonderful unwritten constitution of ours, a delicate thread that has been woven through the centuries and has built the strength and foundation of this amazing country. That foundation lies in the rule of law, and respect for the fairness and independence of our judiciary is at its crux.
The noble Lord, Lord Kerr, in his submission to the committee said:
“This is not the Montreux Convention or the Antarctic Treaty. We are talking about something that … will affect almost every area of public life in this country … Vast areas of domestic policy will be affected, and policy choices possibly foreclosed … by this negotiation. Therefore, it follows that this is a treaty where there absolutely needs to be very full parliamentary scrutiny”.
The committee said that:
“It would be constitutionally inappropriate, not to mention setting a disturbing precedent, for the Executive to act on an advisory referendum without explicit parliamentary approval—particularly one with such significant long-term consequences. The Government should not trigger Article 50 without consulting Parliament”.
That is the crux of it. What was the Prime Minister thinking? Why try to ride roughshod over Parliament? Why try to bully us and disturb our wonderful convention and history? Let us be honest: as I said earlier, this referendum result was democratically definitive, but the figures were 52% to 48%, representing 17 million people and 16 million people respectively. We keep talking about the will of the people, but what about the will of the 16 million? Any responsible constituency MP says, “I have been elected by the majority of my constituents but I look after the interests of every individual in my constituency whether they voted for my party or not”.
One of the recommendations is:
“We recommend that the new Committee appointed to scrutinise Brexit should incorporate the existing scrutiny functions of the European Union Committee”.
Does the Minister agree that that should happen? No one has mentioned so far the fact that the report talks about the wonderful concept of parliamentary diplomacy. Parliament should play an active diplomatic role throughout the Brexit process and the European Union Committee is perfectly placed to do that. Again, does the Minister agree with that?
In the speech she made yesterday to the CBI, the Prime Minister said:
“For this is a true national moment. The decision of the British people on 23rd June gives us a once-in-a-generation chance to shape a new future for our nation”.
But what about the generations ahead?
I turn to the legal ruling that has led to all this. Kenneth Armstrong, professor of European law at the University of Cambridge—and here I declare an interest as chairman of the advisory board of the Cambridge Judge Business School—has written an article entitled Victory for Parliamentary Democracy in which he states:
“However, while the outcome of the referendum has given the Government a political mandate to withdraw from the EU, the legal power to notify must be exercised within legal limits. The High Court has concluded that where an exercise of the Royal Prerogative would remove legal rights, derived from EU law but made available in domestic law by Parliament through the European Communities Act, only Parliament can legislate for such rights to be removed”.
It cannot be any clearer than that. Government lawyers argued that the prerogative powers were a legitimate way to give effect to the will of the people, but the summary of the judgment stated that,
“the Government does not have the power under the Crown’s prerogative to give notice pursuant to Article 50”.
Of course, this has scared Nigel Farage, who said that we were heading for a “half-Brexit.” The noble Lord, Lord Kerr, the author of Article 50, seemed to suggest that once we invoke Article 50, we may be able to retract from it during that process. This is a debatable issue.
Just recently, the Government decided not to implement the recommendations of the Strathclyde review, with the Leader of the House stating:
“We recognise the valuable role of the House of Lords … The Government are therefore reliant on the discipline and self-regulation that this House imposes upon itself”.
But then came the threat:
“Should that break down, we would have reflect on this decision”.—[Official Report, 17/11/16; col. 1539.]
How many times have I been told by people in the other place: “Watch it. Don’t go too far, otherwise that’ll be the end of you lot”? I have heard it outside as well: “You unelected Peers pushed this too far. Your days are numbered”. However, the House of Lords has killed only five statutory instruments supported by Governments since 1945. Let us get real: this House, when it boils down to it, does not filibuster; this House does not block for the sake of blocking; this House does not throw out legislation; we debate it in the best interests not of one party or another but of the country. Three senior members of the Conservative Party, including Dominic Grieve, the former Attorney-General, have said that the Government should withdraw their appeal to the Supreme Court and just get on with it.
We talk about a transitional deal. The noble Lord, Lord Inglewood, said that Brexit would be a long-drawn-out process. It will take two to 10 years. The elements of it are not as simple as exiting the European Union. What about the treaties, whether it is staying in the single market or in the customs union or doing trade deals? The Prime Minister saw this in action in India—I was there when she was. She thought that she could go there with Liam Fox and come back with trade deals. Before she went out, it was announced that Indian IT workers’ minimum salaries would be increased by 50%. One of India’s main exports is its excellent IT services, from which our public services and private sector benefit. Suddenly, they are told that salaries will be 50% higher, which makes them less competitive. When the Prime Minister was there, she spoke about returning to India Indians who had overstayed—that has built a lot of friendship as well. Then, when she had 35 university leaders there with Jo Johnson, she did not mention higher education or universities once in her opening speech; she did not even meet the university leaders, whereas Prime Minister Modi, one of the most powerful people in the world, said humbly that the mobility of India’s youth in education was crucial. We send out negative messages about international students; we still treat them as immigrants and include them in our net immigration figures; and we think that we can do trade deals with India. Dream on.
Canada took eight years to do a trade deal with the EU—it was 1,600 pages. The noble Lord, Lord Kerr, spoke about that. What do the Europeans think about all this? We know for a fact that the whole world thinks that we should not leave the European Union—I know that; India is a perfect example. Anyone I speak to in India—civil servants, government or business—says, “You shouldn’t leave the European Union”. The whole world except Donald Trump thinks that we should stay in the European Union. What about what the Europeans think? We talk about great negotiations—“They need us more than we need them”. What nonsense. Forty-five per cent of our exports go to the EU and 55% of our imports come from it. We are net importers from the EU; we are only 8% of its exports, and that is spread out between 27 countries. Get real. Twenty-seven countries, encompassing nearly 500 million people, will be negotiating against us. We are not in the strongest negotiating position here. According to the Dutch Finance Minister, Boris Johnson has said things which are “intellectually impossible”. The Home Affairs Committee heard that the Brexit campaign had created a dangerously toxic EU debate where facts did not matter.
I do not have the time to re-run the referendum, but the crux of it is that there was a definitive democratic vote to leave the European Union—but based on what? I have met people who said: “I voted to leave the European Union because I wanted to save the NHS”, because they believed the claim on the leave battle bus about £350 million a week being put back into the NHS, a claim in front of which Nigel Farage and Boris Johnson spoke in front of TV time and again. People voted for different reasons, based on lies.
As the EU Committee’s report states:
“The forthcoming negotiations … will be unprecedented in their complexity”.
The Prime Minister wants to use the royal prerogative. One of the strongest areas in which such a prerogative can be used is in going to war—a Prime Minister does not need to consult us; they can go to war. Have they done that in recent history? In 2011, with Libya, the Government granted a vote. In 2013 and 2015, with Syria and Iraq, the Government granted a vote. The Government have not exercised the prerogative, yet here is something that will affect the whole of this country, including our security, and the Prime Minister thinks that she can just go ahead without such a vote. A headline to an article written by Vernon Bogdanor, previously of Oxford University and now at King’s College London, states:
“The EU referendum shows how the sovereignty of Britain’s people can now trump its Parliament”.
That is the big issue here. Is Parliament sovereign? Here is the irony of it all: “Vote leave and take back control. Take back control of our Parliament”. And then Parliament is just cut out of it, and that is convenient. That is hypocrisy. It is contradictory and hypocritical.
I said before the vote and straight after it that there would be repercussions. The first vote of no confidence in this country by the world was the devaluation of the pound—it fell by as much as 20% and is still 15% lower than its pre-vote value. That is the first sign of the uncertainty, which could then lead to higher interest rates, which could then lead to inflation, which could then lead to our economy not growing as quickly, which could then lead to problems for every citizen of this country.
I conclude by referring to the way in which our judges were attacked. I remember when I came as a student to this country and heard Lord Denning, then Master of the Rolls, speak. It was a speech that I will never forget. Then the noble and learned Baroness, Lady Hale, was criticised, including by Iain Duncan Smith, who said that there would be a constitutional crisis. And then the judges were called “enemies of the people”. The noble and learned Baroness said in response:
“It is unfortunate that isn’t made clear to the British public, because it is very important they understand what the role of the judiciary is, which is to hear cases in a fair, neutral, and impartial way. You have to be independent and true to your judicial oath and cannot allow yourself to be swayed by extraneous considerations that have nothing to do with the law”.
When at the Lord Mayor’s Banquet last week the Lord Mayor, Andrew Parmley, praised the judges, he got the biggest ovation of the evening. Our judiciary are respected as the finest, the most just and the fairest in the world. They are independent. There is no way that we should ever dare to criticise them.
This House has the greatest depth and breadth of expertise of any parliamentary Chamber in the world. It would be a waste for it not to be consulted. The point being made by the committee is that this House and Parliament need to be consulted on Article 50 right at the beginning, right through the process and right after it. That is what is at stake here. We need to be part of this process throughout, because our role is that of the guardians of the nation. Whether or not it is smart Brexit, as the noble Lord, Lord Kerr, called it, what is at essence is that we will do our best for this country and nothing else.
My Lords, I remind your Lordships that in a debate of this type, with the exception of those from the Front Benches, contributions are normally about 10 minutes. I think that that would help the conduct of proceedings.
My Lords, it is a pleasure to follow the noble Lord, Lord Bilimoria, who has painted the picture as it is far more graphically than I will be able to do. I thank my noble friend Lord Lang of Monkton and the noble Lord, Lord Boswell of Aynho, for their introduction of, and explanation of, their respective committees’ reports.
I do not believe that, given the magnitude of the matters that are to be decided in this Brexit issue, it could be right that Parliament should have no involvement until the end of the negotiating process or that its role should be reduced to merely debating the situation and asking questions in a vacuum. I say to my noble friend on the Front Bench that, if Ministers maintain their current position that the Government’s negotiating position cannot be disclosed, and no answers are given to questions other than that, “we will seek the best deal for the United Kingdom,” all the debates and questions will become a meaningless exercise and uncertainty will continue. Asking questions is all very fine but, if there are no answers on the most straightforward of points, it becomes fruitless. I ask the Minister to accept that there are certain matters upon which it could not do any harm at all to give a straightforward and positive answer. It need not become a red line in negotiations, but at least we could be assured that the Government would be trying to achieve helpful outcomes in a variety of different areas that are of concern to people.
The European Union Committee’s proposals for the revised remit to meet the current situation must make sense, given the respected role that the committee has played and the authority that it enjoys in other parliaments. In its conclusions and recommendations, the report speaks of a middle ground, where Parliament will respect the Government’s need for room to manoeuvre and at the same time be able to monitor the conduct of negotiations and comment on the negotiating objectives as they develop. Whether one was in favour of remaining or leaving, and whether or not one is a Member of this Parliament, this is a reasonable position to adopt, whatever one’s opinion.
Like other noble Lords, I will not express a view on the implication of Article 50 and how that should be invoked, but I must endorse and adopt the words of my noble friend Lord Lang and other Members regarding the attacks on the High Court judges. I hope that we shall see no more comments of that kind about the judiciary, and that the Government and all Ministers will be robust, and stand in favour of the rule of law whatever is the outcome of their appeal. If the Government were to lose the appeal to the Supreme Court, it had been my personal hope that it would become clear that the matter could be dealt with by way of a resolution rather than by legislation. But I listened to my noble friend Lord Lang of Monkton on the relative benefits of legislation and a resolution, and I am slightly less convinced about my original view than I was.
I hope that the recommendations and conclusions of these two reports will find favour across the House, among those who were originally remainers and those who were originally leavers. There seems to be a view among some leavers that anyone who thinks that any aspect of our leaving should be open to question in Parliament is somehow seeking to subvert the outcome of the referendum.
I thought, and I still think, that the referendum and the campaigns will rank among the greatest political mistakes and disasters of our time. But I accept the result, as do most of the defeated remainers, in a way in which I rather doubt, if the result had gone the other way, the leavers would have done. However, we should not be, and will not be, diverted from trying to seek to influence the kind of Brexit that we have. After all, the leavers did not know—or they did not tell us during the referendum—what they had in mind in any detail, so no particular Brexit deal was endorsed by the vote. None of the questions posed by the noble Lord, Lord Boswell, in his introduction were answered—certainly during that campaign. People voted to leave for a variety of different reasons—as, no doubt, did those who wanted to stay.
I believe the Government when they say that they want the best deal for Britain. I believe that the best deal for Britain is to remain as close to our partners, friends and allies in Europe as possible. It will involve not merely looking after our economic and security interests but having regard to the interests of the European Union which—and I know that this is not a view shared by all—has been a huge force for good on our continent. Perhaps if successive Governments, particularly the last one, had made this clear over the years, we would not be where we are today.
I have the privilege of leading the UK delegation to the OSCE Parliamentary Assembly, and I know from colleagues in countries within the European Union, and from others in countries that are not members of the EU, how much store they set by membership and how much they regret our pending departure. I refer particularly to those in the western Balkans who have seen us as their champions along the road to membership. They wonder what sort of European Union there will be without us and how far away membership has become. This is an area of past instability; an area in which Putin’s Russia is interested. Nothing in our arrangements for our departure or future relationship with the European Union, and its aspiring members, should be allowed to put their European future at stake. The support that we give to these countries in their journey towards the European Union should continue, even if we have decided to head for a different—if today unknown—destination.
As we launch ourselves on to the world stage, these near neighbours should not be forgotten. Our future relations with the European Union are vital and the negotiations will be difficult. Our rhetoric and, in some cases, our misplaced sense of humour, need to be controlled. A column in the Times yesterday stated that,
“Brexiteers’ bar room bravado will backfire”.
I endorse that. The other member states believe in Europe and regret our leaving and the effect it might have on the Union. This must be recognised, especially by members of the Government who go to visit and represent the United Kingdom.
We have said that until we leave we will remain full and participating members of the European Union, so I ask my noble friend—if it is not too difficult a question to answer—how did the Foreign Secretary’s decision to boycott the special meeting following the US election fit with that? Was it worth the potential ill-will that it might have created? In our hurry to accommodate, flatter and—apparently—lay out a red carpet for President-elect Trump, I hope that we will appreciate the need to recognise the sensitivities of our current partners, many of whom feel bruised by our decision to leave. We need their good will and we should not believe all our Brexit propaganda that they need us more than we need them. We need each other.
These two reports are a balanced set of recommendations that respect the referendum result, the role of government and the need for there to be a proper role for Parliament, too. I hope that the Minister will acknowledge this without reservation or equivocation.
My Lords, I follow much of what the noble Lord, Lord Bowness, has just said, especially about what the countries of eastern Europe are saying about Brexit. I declare an interest as a remainer and a referendum unbeliever. However, I am not with those who wish to rerun the referendum, and I joined this debate in the hope that we will move swiftly towards reconciliation with the EU, albeit as a trading partner or associate member. Of course, this will be with the benefit of advice from our European committees, as has been well established today.
The important political issue before us is quite separate from the legal issue, which has been the subject of the case made in the High Court. It is the rights of individuals, the legislative supremacy of Parliament and the limits of executive power, and I will return to that.
The Government’s appeal will be heard in due course by the Supreme Court, which in this case will also act as guardian of our constitution. Quite separate from this point of constitutional law is another question, that of representation: whether by promoting the referendum as a means of settling such a crucial issue we have—as the noble Lord, Lord Higgins, was saying—impaired our present system of sending Members of Parliament to Westminster to represent us. The Minister may not be briefed to answer that.
This debate concerns the role of Parliament. We already heard a strong case for the involvement of both Houses in the Government’s plans, if and when we see them. The specific recommendations of the EU Committee are divided into four phases. Of these, we should discuss the first two stages because they are imminent. I wish that the committee had spent more time on the preparatory phases, on which I will focus.
The Government complain that they cannot provide a running commentary, and the committee accept that. What the Government can and should provide is an outline of their intentions, a point my noble friend Lord Kerr made more strongly than any of us can. We need a framework. As the Constitution Committee says, Parliament should play a central role. Parliament is not an elite, as sometimes portrayed in parts of the media, but an institution—my noble friend Lord Bilimoria was strong on this—set up to represent the people. It is the successor to that which stood up to the Crown, notably in 1642, and in 1688, 1832 and successive reforms since. Brexit, while in the vernacular describing a legitimate populist movement, cannot replace the system we already have, one tried for centuries through our largely unwritten and yet powerful constitution. The noble Lord, Lord Hunt, made these points, too.
We are not mandated by the referendum, which was an indicator of public support for a single idea. That idea is still in a vacuum. It will have no shape or form until first the Government and then Parliament give it such through discussion and finally legislation. The Government seem to rest their case on the referendum and an “in” or “out” decision, but they know that leaving the EU cannot be so simple, involving as it does years of disengagement. Look at trade: all the arrangements made over 40 years for 44% of our exports and more than half our imports must now be replaced by new agreements. Where will we find the experts to carry this out? What status for the UK is proposed? Will it be that of the EEA, Norway or some associated status? Will a customs union or single market be willing to take us?
Look at devolution, another aspect mentioned at the beginning of the debate, and its EU counterpart of subsidiarity. The whole point of these treaty changes was to enable regions and EU members themselves to shed some powers outwards. EU law has therefore become enmeshed in sub-national and regional law, and these strands cannot simply be pulled apart. There are also EU laws and institutions already incorporated into UK law. On crime prevention, can we look forward to the same co-operation with the EU as before?
These things may seem obvious but surely the public should be told about them. Not even the keenest Brexiter will argue that we can simply float offshore when there are vital issues of defence, security and immigration at stake. Recently we opted back into measures like the European arrest warrant, Europol and Eurojust. That was a Conservative Government recognising the need to co-operate on these issues. How can those instruments be replaced?
This surely leads to the question of red lines and what Parliament should discuss now instead of awaiting the pleasure of the Executive. Now that the Prime Minister and her Cabinet have had months to think about this, why can they not come up with broad principles in a Green Paper, as mentioned by my noble friend Lord Kerr? I do not foresee any blocking by Parliament—nobody has mentioned it—which is what the Brexit media say the Government fear. I would like to see engagement at stage one. Parliament needs to see what is broadly proposed and can be discussed with MPs and Peers before Article 50 is triggered. This could surely be done between January and March.
Some issues governed by EU law cannot even wait for discussion, as mentioned already. The Government should announce them as soon as possible. They are issues such as the status of EU citizens here and our own citizens in Europe, mentioned by the noble Lord, Lord MacGregor. Pressing issues of funding affect universities—mentioned by my noble friend Lord Bilimoria—and rural areas, for which the Government have provided too little comfort so far. These questions need to be decided now, as has been argued repeatedly.
In this revising Chamber, we offer not a decision but a second opinion based on our expertise and experience. That is universally recognised and in a sense the Government are encouraging us to offer that—but it cannot be in a vacuum. Having reread the recent Brexit Statement, I wonder whether the Government took the point that it is not just time for debates of our own reports that we seek but—the Minister might like to focus on this—the application of the wisdom in those reports to the Government’s own plans and intentions. Surely the least the Minister will say today is that the Government intend to have an outline of these plans in time for us to debate them before next March.
Finally, the issue many of us are concerned about is not Article 50 but executive power. Parliament has continually sought to control the Executive and, once again, the Executive assume that they alone have the right to direct the course this country is to take. Parliament could again be presented with a fait accompli, albeit dressed up in the appearance of a choice. We must face that. We are currently on a fault line, running across America and Europe, between those who fear centralised power, uncontrolled migration and liberal economics, and those who wish to defend shared alliances, universal human rights and free movement of goods and people. This is a dangerous moment in history that cannot be left to a one-off decision of the people. It should be openly discussed in our Parliament before we move towards what I accept is inevitable change.
My Lords, first, I thank my noble friend Lord Lang and the noble Lord, Lord Boswell, for their excellent reports. Secondly, I draw attention to my entries in the register, many of them concerning my various European roles. I was also strongly in favour of remain. We made a foolish decision: 43 years on from joining the EU, we appear to be deciding that we will be the only major industrialised country in the world that is affiliated to no one at all in particular and will somehow try and negotiate our way through a morass of technical agreements in the modern world.
I serve on one of the sub-committees, as the noble Lord, Lord Boswell, knows. Representatives of the Norwegian Government came to see us. They told us of the hundred treaties, the whole department of the Norwegian Government that exists to monitor their relations with the European Union and, in particular, that very valuable section of the Norwegian department responsible for ringing Stockholm as the only way they can get their viewpoint put forward in the EU. Of course, that can be ignored when Stockholm does not like it.
I will deal first with the matter of Article 50. I do not understand why the Government do not come to Parliament for a vote. They would not lose it: in the Commons it would be made a matter of confidence and in the Lords we would not defeat it. Why do they not come? Why do they not want to hear what we have to say, particularly since we do nothing else but talk about Brexit? We have a debate virtually every hour on the hour about some aspect of it or other, so why not come here to talk about Article 50? That is on page 8 of the report by my noble friend Lord Lang—the noble Lord, Lord Bilimoria, quoted from it.
I turn now to the European scrutiny. In the report by the noble Lord, Lord Boswell, the Secretary of State is quoted as assuring the committee that it would be unacceptable for the European Parliament to have greater rights of scrutiny over the negotiations on Brexit than Westminster does. However, the European Parliament will be regularly scrutinising every aspect of those negotiations. It is going to be a running commentary. Paragraph 54 states that:
“What is striking is not only that the European Parliament, as Lord Kerr put it, ‘will have access to all the negotiating documents’, but that it will have such access ‘at every stage’”.
This is in the summary with a list of the documents to be supplied.
I ask noble Lords—and noble political parties, if they are noble—what attempts they are making to talk to their MEPs. I know of very little talking. Surely they should be part of our gathering: we should be talking to them—they are the representatives on the other side of this fence. We need a structure whereby we can talk to our colleagues in Europe. However, we also need a structure in our political parties—I look particularly at the Opposition here—whereby we can talk to our political friends in other countries, because they will have an enormous impact on this dialogue.
Some noble Lords may remember that I have a particular interest in Scandinavia and the Baltics. Those countries are absolutely distraught by this decision. Britain used to be the sensible voice at the negotiating table; its contribution was to help build the blocking minority. If Britain was against something, it was generally for a fairly sound reason, and Sweden, Finland and the Baltics would look at it and say, “Yes, well”. Then, in Berlin, they would say to their friends: “Look, I think we had better listen to these people because they might just get a blocking minority”.
When Britain goes, the pressure will move to Berlin. Berlin will no longer be able to stand in the centre; it will have to take a much stronger role. It is a role that—having recently been there—I can tell you that it is not looking forward to taking. Britain can take a strong role and the worst that people will say is that we are throwing our weight around. Unlike Britain, however, if Germany tries to take a strong role it brings out all the animus of years ago. That is why the Germans do not like it and are very unhappy at our leaving. We have been the sensible people who have helped to deliver a European Union that works: when we look at things we ask whether they will work. If we are to have this dialogue about dissolution, we must look much more closely at the European Parliament, what it wants and what we can actually do, because at the end of the day, as Article 50 so accurately states:
“It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament”.
I finish with a few words about that. If we trigger Article 50 in March 2017 we will be looking for the consent of the European Parliament in the early months of 2019. What happens in 2019? Yes, you have guessed: there is an election. Half the people in the European Parliament will be demob happy because they will not be coming back, and the other half will be appealing to their Twitter accounts and the like and reacting accordingly: they will make the Government of Wallonia look like the most sober, respectable negotiators who ever went into a Canadian trade agreement. You will run into every possible problem.
I predict—it may not happen—that 27 countries of the European Union will decide that they wish to lengthen the negotiations. The noble Lord, Lord Kerr, will immediately spot that this cannot be done without Britain. If, however, 27 countries say to the United Kingdom that they wish to lengthen the negotiations by a year because of the European Parliament elections and all sorts of extraneous things—apart from the fact that the negotiations will not be finished anyway—it will be very difficult for us to say, “Oh no, we’re off—bye!”. It will just not work that way, will it?
What will happen then? We will have some sort of extension, and then we will have an election in the United Kingdom. I would not for the life of me propose it, but I wonder what would happen if one of the political parties were to go into that election saying not that it was going to overturn the decision—no, no, no—but that it intended to pause and review the process. Some noble Lords may know that one of my specialities is mortality rates. Demography means that the majority will be somewhat diminished by mortality, if I am to believe the voting profile by age. It may well be that a younger generation says: “Oh God, we have an opportunity to get out of this: we can pause”. We do not know what might happen after the pause. So I say: be careful, as my daughter is fond of saying, of what you wish for, because you may end up with something that you did not want at all.
My Lords, it is a privilege to follow the noble Lord, Lord Balfe, and I congratulate the noble Lord, Lord Boswell, and my chairman, the noble Lord, Lord Lang, on their excellent reports.
Western Europe has seen 70 years of peace. I fear that Britain’s exit will unravel the knitted union and that western Europe may face further disruptions and wars. The referendum was a mistake, in that it was an advisory referendum but the Conservative Party suggested that the Government would take the advice. That it was a great mistake was emphasised by the departure of David Cameron as Prime Minister. He made a commitment in his manifesto to stand by the public’s decision. That should not have happened.
Parliament is not sufficiently involved in the negotiation process. We won the High Court case on the invoking of Article 50, and the Government are appealing it. The court case will be a matter of law. It seems to me that Parliament is the representative of the public and should be aware of what the Government intend. We have no idea how the Government propose to negotiate, or of their objectives. We have no idea how they would present this negotiation to the public. We must recognise that the negotiations should be made available to Parliament and that we should have a Green Paper setting out the Government’s objectives and the alternatives. We have a representative democracy and it is worthwhile setting up both Houses of Parliament to consider what the Government’s objectives are. We should be involved in the negotiations.
The noble Lord, Lord Boswell, said that what matters is the substance of Brexit and I totally agree. We need short reports covering the issues; he mentioned 20, which may be too few, but we need to know because we have been members of this Union for a very long time. It has made our law, which we will have to unravel if we are to separate from it. We know next to nothing of the Government’s position. Both Houses of Parliament should agree to issue guidelines. Parliament must be involved in the scrutiny of the legislation that will be forthcoming. We should not wait for the conclusion but should appoint a committee to supervise the negotiations. It should of course respect the confidentiality of the negotiations but should also have knowledge of the heads of agreement and the head objectives. The role of Parliament is critical. As a number of people have said in this debate, we are not leaving Europe. However, we need to know what structure of Europe we can belong to, and we have to see what the Government think about this.
I also wish to put forward the objectives of Scotland and Northern Ireland, which have voted against Brexit. How are they to be involved in the negotiations? Will they be involved in preliminary talks? Will the devolved Governments be involved in the process? What structure do the Government have—and intend to have—for these countries, which are so keen to remain members? I wonder whether we could reopen the issue if we find that the negotiations render us into a downturn of the economy.
Donald Tusk has said that withdrawing Article 50 is perfectly possible, as the noble Lord, Lord Kerr of Kinlochard, said. If Article 50 can be withdrawn, I wonder what the Government will say if they find that the negotiations are hopelessly unreal and hopelessly damaging to this country. Will they permit that to be made public?
My Lords, the two reports we are debating deal with matters of the greatest significance for our nation’s future as we prepare to leave the European Union. Others have underlined their importance. I could not put the matter better than it is put in paragraph 2 of the first of those reports—that of the Constitution Committee. It stated:
“Constitutional change of such magnitude must be approached carefully and scrutinised appropriately, with the roles and responsibilities of both Government and Parliament set out clearly in advance”.
It is a pity that the Government have so far declined to do that—but it is not too late to remedy the omission. I hope that the Minister will begin this evening and that the Government will, in the weeks ahead and before the deadline they have set for triggering Article 50 before the end of March, do precisely that—whether or not they are compelled to do so by a ruling of the Supreme Court. If most of my remarks today relate to matters on which I do not entirely agree with the reports, or to querying omissions from them, that does not detract from my view that they are both excellent analyses, for which the House owes both committees a debt of gratitude.
I do not want to dwell at length or in detail on the question currently before the Supreme Court as to whether the Government are entitled under the royal prerogative to trigger Article 50 without Parliament’s say-so; it would be better to await the court’s ruling. But it is surely supremely ironical, as several other speakers have said, that so many of those who campaigned for us to leave the European Union and their raucous supporters in the press, who asserted that only in this way could the sovereignty of Parliament be restored, are now lining up to support bypassing Parliament in this matter. It is, perhaps, too much to hope for logic and consistency in politics—but this pushes the outer limits of inconsistency rather a long way.
On the question of the potential revocability of Article 50, I really do not know on what basis the Government have stated so categorically that reversal is impossible. Since Article 50 is completely silent on the matter and neither says that it is possible nor that it is not, it would seem to be a rather heroic assumption; something that Sir Humphrey might well have told his Prime Minister was, “Very, very courageous, Prime Minister”. I contest, however, the suggestion in the report that the question of revocability is primarily a legal one. I believe that if the circumstances were to arise in which the UK wished to withdraw its triggering of Article 50 it would be and would be seen to be a predominantly political matter, to be handled politically by all concerned, not simply passed on to a court.
As to the manner in which Parliament might authorise the Government to trigger Article 50 through primary legislation, a resolution or Motion—the three options set out in the Constitution Committee’s report—I was rather puzzled to find no reference to a quite recent precedent which, although it may not be identically analogous to present circumstances, was surely close enough to be of some relevance. This precedent was the procedure followed in 2013 and 2014 when the Government wished to trigger the provisions of Protocol 36 of the Lisbon treaty that allowed the UK to withdraw from all the European Union’s pre-Lisbon justice and home affairs legislation and at the same time negotiate to rejoin 35 of the most significant measures.
Those two issues were brought before both Houses in the form of an amendable resolution. Triggering and rejoining were approved by both Houses—although admittedly the Commons took rather longer to approve the rejoining than we did. The Government then negotiated the rejoining package with the Council and the Commission—reporting to Parliament from time to time—and returned to Parliament with the modestly changed outcome which was approved, as were the necessary changes to our domestic legislation to give effect to that outcome. The protagonist of that procedure was none other than the Home Secretary who, strangely enough, was called Theresa May. Might it not be wise for the Government to give some consideration to that precedent just in case they do not win the day in the Supreme Court?
One matter that gets aired rather frequently—this is a quite different matter—is the contention that for the Government to set out their broad approach to the Brexit negotiations as part of the triggering process would undermine or fundamentally damage their capacity to negotiate effectively. That simply does not stack up. It does not match the reality of negotiating in Brussels. Whatever opening statement we make at the outset of the negotiations will immediately be in the public domain. The concept of negotiating confidentiality when you are dealing with 28 Governments and several European institutions is simply not credible. Is Parliament—the two House of Parliament here—to be the last to be told about that opening position? Is it to be the only participant not to have a chance to comment on the Government’s broad approach?
No one is suggesting that the broad approach should be spelled out in minute detail. That will be a matter for the negotiations themselves. Let us hope the Government will come to see the advantages. My noble friend Lord Kerr of Kinlochard set them out very fully, in particular the desirability of giving more prominence to the areas where we want to continue working intimately with our European partners. He named three areas: justice and home affairs, science and co-operation, and a common foreign and security policy. There are real advantages if we spell them out in advance, not disadvantages.
I have one final point. There was a proposal in the European Union Committee report—which the noble Lord, Lord Boswell, so eloquently introduced—that this House should establish its own Brexit committee? What on earth has happened to that? Surely this makes the most obvious and simple sense. Why is it not being taken forward? Why are we allowing the other place to steal a march on us? After all, it set up its Brexit committee about a month ago. I hope the Minister will be able to respond in some measure to the points that have been raised. As I said in another of our rather frequent debates on Brexit, it really is getting just a little bit tedious and frustrating simply to be sending notes up the chimney to Father Christmas.
My Lords, I want to dwell on the distinction made in the Constitution Committee’s report between resolution and legislation. It is very important that the Government introduce a resolution confirming that they accept the result of the referendum, so that, whatever delays are involved in invoking Article 50, the people do not think that their will is being denied. Although the margin overall was 4 percentage points, the margin in England was 7 percentage points and England voted with the same difference, 2 million votes, in favour of Brexit as did the entire country—so the rest of the country cancelled out between remain and leave. England made the difference and the English public will be extremely angry if their will is going to be thwarted. So I think a short resolution confirming that Parliament accepts the referendum result would be good.
Then we may want an Act—legislation, again as recommended by the Constitution Committee—which would lay out what the Government should do before invoking Article 50. We should have a lot of parliamentary input in the process before and after, but during the divorce negotiations we should have a limited presence. I have once before advocated a Joint Committee of both Houses of Parliament which would have the information from the Government on Privy Council terms. We cannot really have, between this House and another place, 1,500 people trying to micromanage the Government’s negotiations. But a Joint Committee of both Houses of Parliament under Privy Council rules could be given all the information by the Government. It would be able to advise the Government on how to proceed and that would both give Parliament a voice in the procedure and not be too public. One difficulty in making it public is that we have a very vicious press. It will attack people for whatever reasons, as it already has done. It is very important that the Government can keep their cards close to their chest while negotiating with Europe.
I agree with the noble Lord, Lord Kerr—one dare not disagree with him, I would say—that we need a smart Brexit. The correction I would make is that we need a quick Brexit and a smart framework of negotiations. We want a quick Brexit because we want to get out of this mess. Let the divorce be quick and let the cohabitation negotiations be fruitful and beneficial, because once we get the Brexit thing out it is not just the 27 we have to get on with; the other n minus 27 with whom we have to negotiate trade treaties are also waiting out there, and the quicker we do Brexit the better off we will be.
My Lords, this has been quite an unusual debate; almost every contribution has been very effective and penetrating, and two or three have been quite memorable. I am grateful to be able to speak in the gap. I do not need more than a few minutes. I just want to ask the Government three simple questions that I think are in the mind of every member of the public who takes an interest in this matter.
The first has already been asked by two of the Minister’s noble friends, the noble Lords, Lord Higgins and Lord Balfe, so I hope if I ask it again towards the end of the proceedings there is a chance it might get an answer: why have the Government been so desperately anxious to cut Parliament out of the loop over Article 50? No one has given an explanation of that, but the proceeding is quite extraordinary and the public are entitled to know why. I hope we will not be told that it is in order to save time, because it really would be the most terrible insult to Parliament to be told that to consult it was a waste of time. Anyway, it would be an untrue explanation because, by appealing the decision of the High Court, the Government have lost more time—at least six or seven weeks—precisely in order to be able to prevent Parliament from getting in on the action. In other words, it is quite clear that time is not the consideration in the Government’s mind. So there is a mystery here, and the mystification of the public on this point ought to be brought to an end. We ought to hear from the Minister tonight exactly what the real motives of the Government have been in this extraordinary matter.
Secondly, why have the Government not clearly and unambiguously disassociated themselves from the shameful attacks on the judges that were made after the High Court’s judgment—attacks that included the phrase “Enemies of the people”, a phrase popular with the most murderous and terrible fascist and communist regimes of the 20th century? That was a quite extraordinary piece of hysterical demagogy, and it is amazing that someone should resort to such terms in any civilised democracy. Yet the best that the Government could do was come out with a statement— drafted, presumably, by some spin doctor at No. 10, because identical statements were produced by the Lord Chancellor and the Prime Minister—that started with just one sentence, a perfunctory acknowledgement of the principle of the independence of the judiciary. That was coupled with another single sentence talking about the freedom of the press—quite gratuitously, because the freedom of the press had never been attacked or raised in that whole context. The effect of the combination of those two sentences, drafted and conveyed in that way, was actually to put forward the idea that maybe the Government had some secret sympathy with what the press had been saying about the judges, which of course would be utterly deplorable. The Minister has an opportunity tonight to put that terrible impression to rest and to disassociate himself unambiguously and clearly from those mischievous, appalling and unforgivable words.
My third question is a fundamental one, to which the public have a right to a clear answer from the Government: what is the Government’s concept of parliamentary sovereignty? If I ask the Government whether they believe in parliamentary sovereignty, I know they will say yes, but what do they mean by it? Specifically, do they accept the definition in the High Court’s judgment, which I think is the most lucid and authoritative definition that I have ever seen? It is not original because, of course, the concept is not original—it has been going on for a long time; I remember reading the words of Sir Edward Coke on the subject as a schoolboy and trying to memorise them for examination purposes—but it is very clearly set out in the judgment, which is likely to become a locus classicus on the subject in future. Do the Government accept that? Do they accept what followed from that, as explicitly stated by the judges, that therefore the referendum, since Parliament did not explicitly decide otherwise, was in fact advisory? I ask the question particularly because, on two or three occasions, I have heard government Ministers from the Front Bench refer to an “instruction” given to Parliament by the electorate. The Minister will accept that instruction is quite incompatible with sovereignty. By definition, you cannot be sovereign and subject to instructions from outside. That is a matter of the logical use of language. Can we hear tonight from the Government what their concept of parliamentary sovereignty is and whether they accept the definition in the High Court’s judgment?
My Lords, in commending both reports and the remarks of the noble Lords, Lord Lang and Lord Boswell, I note that it is important to remember that what we are talking about is the UK’s own domestic arrangements and constitutional requirements in the Article 50 withdrawal process. We determine these ourselves, not by any instruction from Brussels. Even if the Luxembourg court got involved via a reference from our own Supreme Court, or indeed from a national court in another member state, that would be purely to answer a point of EU law—“Is Article 50 legally revocable?”—though I happen to believe that politics may well overtake that question eventually; it would not be to address, let alone to decide, our own domestic arrangements. I hope, though I say this more in hope than expectation, that the press will remember that.
Both reports were written before the High Court judgment and do not depend on it. As the Constitution Committee report notes, it is the political and constitutional significance of decisions relating to the UK’s membership of the EU that makes the involvement of both Houses absolutely justified. The committee also notes, as did the noble Lords, Lord Higgins, Lord Bilimoria and Lord Balfe, among others, that the Government ought to want to work with Parliament in the spirit of co-operation—indeed, perhaps to share the burden of responsibility. The Constitution Committee was in fact very clear and strong in its language:
“It would be constitutionally inappropriate … for the Executive to act on an advisory referendum without … parliamentary approval—particularly one with such significant long-term consequences”.
Those are very strong words.
Between them, the two committees amplify that strong argument. First, enacting the result of the referendum should require at least the same level of parliamentary involvement as a decision to authorise military deployment. If that point has been conceded in the last few years, why are we even talking about it now? Secondly, Parliament would have to legislate to implement any relationship with the EU, so the Executive must ensure that they have proper parliamentary approval for the process leading up to that new relationship. Thirdly, one consequence of Brexit is that many key aspects of domestic policy could potentially be determined not by Parliament but in negotiations conducted behind closed doors, which is invidious. The Brexit Secretary has said that the Government are determined,
“to build national consensus around our approach”.—[
How better to do that than in Parliament?
We on these Benches entirely agree with the thrust of the two reports that Parliament must be involved in all the stages—I cannot now remember if there are three or four—of the Brexit process. “Taking back control”, as my noble friend Lord Beith said, does not mean handing control to the Executive. Parliament’s demand is to be involved in setting the strategy, not, as Mr Davis has claimed, in micromanaging to deprive the Government of room for manoeuvre or indeed, as the Chancellor said in an interview at the weekend, an involvement in the tactics of the negotiations. It is the overall picture that Parliament needs to be involved in.
Parliament adds value to the process of the Brexit negotiations. We are not to be regarded as some pesky nuisance. Our active scrutiny can assist the Government in a proactive way to achieve a successful outcome. All we need to do is look around on these Benches at the amount of expertise. On options, risks and opportunities, we are expecting 20 or so short reports on the impact of Brexit from the EU Select Committee under the noble Lord, Lord Boswell, and I believe they will provide a wealth of material. Far from undermining the Government’s negotiating stance, parliamentary approval of the negotiating guidelines can strengthen the Government’s hand, as several noble Lords have mentioned, when dealing with their partners in the negotiations. Indeed, we can protect the Government from the wild and irresponsible hard Brexiteers in their own party. One senior commentator has remarked that,
“The expectation that May will be pushed around by the Tory party right wing explains some of this pessimism”, about the possible breakdown of Article 50 talks and Britain crashing out into a hard WTO-only exit, which of course would be disastrous for the economy, business, jobs and citizens.
So the Government are not respecting the will of the people—that much used and abused mantra. If they were, they would be planning a referendum on the outcome of the negotiations, because you cannot respect the will of the people if you do not allow them a say in the final outcome. They are not seeking a national consensus. All they seem to be doing is obeying the will of the Tory right-wing and UKIP, and that is not the same thing at all.
My noble friend Lady Suttie dealt with the refusal to give information on the Brexit terms on the basis of the “no running commentary” excuse. She cited the precedents of previous treaties. The noble Lord, Lord Hannay, cited the example of the justice and home affairs mass opt-in. There is plenty of precedent for keeping Parliament informed. Indeed, Ministers are doing plenty of whispering to their friends in the press. It is quite insulting to be told that Parliament, uniquely, cannot be kept informed.
I fear that it gives the game away on the real reason for the Government’s doctrine of unripe time that there is in fact no political consensus in government; it is really about time that there was. Many of us are weary of the Prime Minister talking in “Brexit means Brexit”-type riddles, which is becoming as demeaning to the Government as it is disrespectful to Parliament and the people.
The Secretary of State for Exiting the EU gave a pledge that we would not be second-class to MEPs. Indeed, my noble friend Lord Teverson provoked that promise. This means, as the report tells us, access to all the negotiating documents and at every stage of the negotiations, giving feedback and being listened to and responded to through a sort of flexible scrutiny reserve process. It means being told the response to Parliament’s concerns. Of course, it means safeguarding confidential information.
The reality so far is very different. The Government have already taken a number of steps without any reference to Parliament, leaving us to read the tea leaves. In no particular order, we have had the following. The noble Lord, Lord Hill, resigned his Commissioner post, so we lost the financial services portfolio. The Government renounced the presidency slot in 2017—perhaps inevitably, but it was done without any reference to Parliament. The Government said that they are giving priority to curbs on free movement of people, even if it means leaving the single market; but they are leaving UK and other EU nationals who have taken advantage of freedom of movement rights in total limbo, which is shameful. The Government have said that they want us to be outside the jurisdiction of the Court of Justice of the European Union, which will be very problematic for future relations. They have announced the fact but no details of a deal that satisfies the car company Nissan, which begs the question of whether that could fall foul of state aid rules and whether some special inclusion in the customs union for cars is expected.
All this has happened without Parliament being given any chance to influence the Government’s stance. Finally, we have had signalling of a slashing of corporation tax which, along with the rhetoric of some in their party, makes some people fear that the Government are set to make the UK the Singapore of the north Atlantic, which could make recognition and equivalence regimes much more difficult to achieve. The Government have also opted into the new Europol regulation, which is extremely good news, but begs the question about future security co-operation, which is vital.
I conclude by asking for the Prime Minister, instead of giving drip-drip to the press and making inscrutable utterances, to articulate her choices. Parliament, with or without a Supreme Court judgment, must be fully involved in the pursuance of them. Taking back control means no less.
My Lords, I join others in thanking the noble Lords, Lord Lang and Lord Boswell, and their hard-working committees, for these very thorough, clearly written—always appreciated —and forward-thinking reports. I also thank them for the debate today, although I doubt whether we need to debate Article 50. There should be no need for discussion on it, as the Government—albeit not the noble Lords, Lord Kerr and Lord Hannay—accept that, once triggered, there is no going back. There is then the inevitable withdrawal from the EU and the deprivation of certain rights from British citizens. Consequently, it can only be Parliament, not the Crown, which takes the trigger action that leads to that inevitable result. The unanimous, unambiguous High Court ruling was that,
“the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50”, of the treaty.
At one level, that is fairly obvious. Had some Prime Minister suddenly woken up one morning, posted off a letter to Brussels invoking Article 50 without a referendum or even a Cabinet decision, it would still have been an irrevocable move. But if the Government’s argument on Crown prerogative is right, it would have been “in accordance with” our “own constitutional requirements”. It would therefore be unstoppable by Parliament—if the Government are right that Article 50 cannot be stopped—so it would happen. We could sack the Prime Minister who had done the deed, but we could not undo the deed. As the judges said, the referendum was only advisory, so in law—albeit not in politics—this Prime Minister, even after the referendum, would be doing something with no statutory authority from the people or from Parliament. Indeed, as the noble Lord, Lord Lang of Monkton, reminded us, and as was mentioned by the noble Lords, Lord Hunt of Wirral and Lord Bilimoria, the Constitution Committee stated:
“It would be constitutionally inappropriate, not to mention setting a disturbing precedent, for the Executive to act on an advisory referendum without explicit parliamentary approval”.
The question is: why on earth are the Government appealing against that decision? It is what I think the noble Lord, Lord Hunt of Wirral, called an unnecessary sideshow, and the noble Lord, Lord Kerr, called a distraction. Do the Government really want to deny Parliament a say in Article 50, and at what cost to our economy? Increasingly, business is saying, “Please get on and tell us what your negotiating plan is”. Just yesterday, the president of the CBI called on the Government to “minimise the uncertainty”, asking her to set out what the Government will prioritise in their negotiations. As he said, the CBI membership is,
“100 per cent committed to making the best of Brexit”, which,
“means maintaining tariff-free access to the European market … maintaining … global trade deals … making the best … of talent available globally”.
But, experienced negotiator as it is, the CBI also said:
“We’re not asking for a running commentary—but we are looking for clarity and—above all—a plan”.
It is not surprising that it wants some clarity as, in the Czech Republic, Boris Johnson said,
“probably we will need to leave the customs union”.
That would be a major step with enormous implications for our exporters and consumers. Indeed, falling back on WTO rules would be the most destructive of the settlements available, leading to fewer jobs, less investment and, probably, a poorer population. Can the Minister clarify whether that particular statement of the Foreign Secretary is indeed the settled government view and, if not, what is?
As the CBI recognises, leaving the customs union and reverting to WTO rules could not even be in place within two years. It has asked the Government to commit to transitional arrangements, as it fears a clock striking midnight when the two years are up, and a cliff edge—a sudden, overnight transformation in trading conditions, with firms stranded in a regulatory no-man’s land.
It appeared yesterday that the Prime Minister acknowledges the danger of a cliff edge, although today we hear that she may not after all want an interim deal. Does she acknowledge, as we have learned from our discussions with member states and—yes, I say to the noble Lord, Lord Balfe—Members of the European Parliament, both in the Labour Party and from other PES countries, and indeed from sources close to the Commission, that such transitional arrangements would depend on the final departure package?
Indeed, such transitional arrangements would probably require all 27 sets of ratification through perhaps 36 different bodies. Such transitional arrangements anyway would need to cover the journey from the point of exit to the final position. That means that the EU27 would need to know where that final position is—the end of the bridge, in the words of the noble Lord, Lord Kerr. To agree a bridge, we have to know where exactly on the other side will be our final position. It will also probably mean knowing when we will remove ourselves from the four freedoms which the EU sees as fundamental to the single market.
That is what the Government should now be discussing as they draw up their framework for negotiations, using all the skill and experience, as we have heard, of your Lordships’ House in what are going to be fiendishly difficult talks, with challenging trade-offs to navigate. As the EU Committee stressed, these,
“negotiations ... will be unprecedented in their complexity”, and it “is inconceivable that” they,
“should be conducted …without active parliamentary scrutiny”.
David Davis said to his party conference last month, when talking about EU partners:
“If we want to be treated with goodwill, we must act with goodwill”.
He might well have been referring to Parliament. If the Government trust us, they will find that we respond positively.
So I revert to the question posed by the noble Lord, Lord Balfe, and my noble friend Lord Davies: why are the Government not bringing Article 50 to Parliament? Why are they taking the appeal to the Supreme Court, wasting valuable energy and time, to say nothing of money or the public’s patience? Is it simply obstinacy on the part of the Prime Minister because it was not the original decision? The focus of her time and effort should be preparing for the very complex—“tortuous” was the word used by the noble Lord, Lord MacGregor —set of negotiations which will follow. The bargaining will be hard. Tough choices will have to be made. How much more expedient it would be for the Prime Minister to be at that negotiating table with the strength of a parliamentary vote—freely requested—behind her, rather than a resisted vote, dragged out of her by the highest court in the land.
As our own Constitution Committee said before the original court case, it was always going to be better to go to Parliament rather than using the prerogative. That is the best and perhaps the only way to build a national consensus and bring the county together once more on this—having an informed, mature conversation with the British people and their representatives. In the words of the noble Lord, Lord Boswell, getting a parliamentary and public buy-in to that final deal is why we favour a parliamentary vote.
Even now, at this late hour, we call on the Government to return to Parliament its rightful role in taking this momentous step. I hope that opposite me is a brick wall, in the sense that we get back some answers rather than these questions just being lodged in the hedge.
My Lords, I am delighted to be likened to a brick wall. When my wife says that talking to me is like talking to a brick wall I shall remind her that it is a compliment.
I thank the members of the Constitution Committee and the European Select Committee not just for securing this debate but for their extremely interesting and useful reports. I also thank all noble Lords who contributed to this very good debate.
From the outset I want to stress the importance that I personally attach not just to the role of Parliament but to the Select Committees in the process before us. I hope to continue to draw on the invaluable expertise and experience that I have heard, and been able to use, in recent months. I intend to continue to have as many meetings as I can with members of those committees. I am grateful to the Constitution Committee for agreeing to extend the deadline for the Government’s response to its report given the legal sensitivities that currently exist. I assure noble Lords that the Government will respond formally to the EU Select Committee’s report in line with the usual timeframe.
However, clearly this debate gives me an opportunity to set out the Government’s thinking on a number of the issues raised this afternoon, and I shall begin by outlining the guiding principles that underpin our approach. The first principle is one of which noble Lords will be well aware—that we must respect the view of the electorate expressed on
The second principle is that we respect and value the role of Parliament, and the third principle is to negotiate in the national interest. I bracket those two principles together, as clearly a balance needs to be struck if we are to respect both those principles. We do indeed want to be as open and transparent as we can with Parliament. However, it is also crucial, as a number of your Lordships have said this afternoon and previously, that the Government negotiate from the strongest position possible. Revealing too much information before triggering Article 50 will, as a number of your Lordships know, weaken our hand. Indeed, the EU Committee of this House has noted that point. Getting the balance right is clearly a core aspect of the debate today, as my noble friends Lord Bowell and Lord Lang said, and it is something on which we are very focused—a point I will return to.
The final principle governing our approach is to respect the rule of law and abide by due process. That obviously means respecting the ruling of the Supreme Court as regards Article 50, and respecting the independence of the judiciary. In response to the noble Lord, Lord Davies, I thoroughly concur with what my noble and learned friend, Lord Keen, said a couple of weeks ago at this Dispatch Box:
“My Lords, we have a judiciary of the highest calibre”.
Sadly, however—and I say this as a journalist myself—that cannot always be said of the media and the press. As my noble and learned friend also said:
“Sensationalist and ill-informed attacks can undermine public confidence in the judiciary, but our public can have every confidence in our judiciary, a confidence which I believe must be shared by the Executive”.—[Official Report, 8/11/16; col. 1029.]
I am grateful for that, but it does not really answer the question. The question is not whether the Government are in favour of the independence of the judiciary but whether they dissociate themselves from the appalling remarks made in the press about the judgment in the High Court.
I think I did answer that point. I am sorry to say that some comments in the media can at times be sensationalist, but at the same time, we obviously want to respect the freedom of the press. Above all, in this case, I concur with the thrust of the noble Lord’s point: we absolutely must respect the rulings of the Supreme Court in this case and the independence of the judiciary. Respecting the rule of law and abiding by due process also means respecting our obligations and responsibilities as a member of the EU up until the day we leave, and respecting parliamentary precedent and procedure as regards the legislation that we shall need to pass as we leave the European Union.
With those principles in mind, I shall approach the issues we are debating under two broad headings: first, the process we are following, up to and including the triggering of Article 50; and secondly, the process that will follow. Let me first, very briefly, chart the democratic process that has been followed so far to leave the European Union, which my noble friend Lord Hunt referred to, in an attempt to bring out the interaction between representative and parliamentary democracy on the one hand, and direct democracy on the other.
In 2013, as your Lordships will remember, the then Prime Minister announced that if a Conservative majority Government were to be elected, they would deliver an in/out referendum—a policy which was in the Conservative Party manifesto. The people voted for that Government, and MPs then voted—by a majority of six to one—to hold a referendum. In the referendum campaign, the Government made it clear that they would respect and implement what the people decide. The referendum itself delivered a bigger popular vote for Brexit than that won by any UK Government in history. The people have therefore voted twice: once for a Government to give them a referendum and then in the referendum itself. Parliament voted to give them that referendum without any conditions attached as to the result.
I heard what my noble friend Lord Higgins and the noble Earl, Lord Sandwich, said about their being non-believers in referendums in our parliamentary democracy, but that argument was meant for when Parliament and this House were debating the referendum itself. I hear what has been said but think that it is now an argument for another day.
Regarding the role of referendums in our parliamentary democracy, I think that my noble friend Lord Lang quoted that noted jurist and constitutionalist, AV Dicey. I too would like to quote AV Dicey. Back in 1911, he wrote that the referendum is the only institution that could,
“give formal acknowledgement of the doctrine which lies at the basis of English democracy—that a law depends at bottom for its enactment on the consent of the nation as represented by its electors”.
The referendum, he wrote,
“is an emphatic assertion of the principle that nation stands above parties”.
I turn now to the actual process of triggering Article 50. It is the rule of law—the principle that I referred to earlier—that has guided the Government’s approach. I am certainly in agreement with paragraph 9 of the Constitution Committee’s report: Article 50 is the only lawful route through which the United Kingdom can leave the EU under the treaties. As a matter of policy, the Government’s view is that, once given, our notification will not be withdrawn. We are committed to leaving in accordance with any legal and constitutional requirements that may apply. The Government have outlined their case and what we believe is the right and proper process to leave the EU under domestic law following established precedent with regard to international affairs.
As your Lordships will know, we have argued that triggering Article 50 is a prerogative power and one that can be exercised by the Government. It is constitutionally proper to give effect to the referendum in this way. As such, we disagree with the judgment of the High Court in England and Wales and are appealing that decision. The Government therefore await the final decision by the Supreme Court and, as I have said, we will abide by its decision. Let me repeat once again: the Government fully respect the independent role of the judiciary in deciding those cases.
I hope your Lordships will understand if I refrain from entering any further into the specifics of the ongoing legal challenge. There will be a hearing in the Supreme Court beginning on
I am sorry to disappoint the noble Lord, Lord Kerr —one of his balls is disappearing into a hedge. I am sorry that all I can say at this stage is that we have noted the calls for this and we will consider the best approach, taking into account what has been said in today’s debate and in the Select Committee’s report. The issues around Brexit, as I have said at this Dispatch Box before, are indeed highly complex, as the noble Baroness, Lady Hayter, said. They deserve very careful consideration, including as the Government continue to consider the customs union.
One of the issues raised in a number of noble Lords’ speeches is, for example, a transitional arrangement. I and my ministerial colleagues are fully aware of this issue in discussions that we have had with representatives of the financial services sector and of other industries right across the board. We have said that we wish the process of Brexit to be as orderly and as smooth as possible—a point which my right honourable friend the Prime Minister repeated at the CBI yesterday. We very much hope that our European partners will also see such an approach as in their interest too, as trade is obviously two-way. I assure your Lordships that we are looking at this issue among all the others that have been raised.
I would also like to address the point that a number of your Lordships made, including my noble friend Lord MacGregor—the position of EU nationals in the UK and UK nationals there. I would draw his and your Lordships’ attention to what the Prime Minister said at the CBI yesterday—that she wants an early agreement in the status of UK nationals in Europe and EU nationals here.
As regards the process of drawing up our negotiating position—
I wonder if the noble Lord could come back yet again to a suggestion that was made in this House several times but that the Prime Minister did not cover, which is to say clearly that we on our side—the United Kingdom—will not call into question the rights of EU citizens in our country unless anyone else does that to our citizens. If we were to say that, it would make it quite clear, beyond peradventure, that we were not going to raise that issue in a negative sense. Why cannot we say that?
I hear the point that the noble Lord makes with his considerable experience. All I would say is that the Government’s position is clear and, as I said, the Prime Minister wishes to have an early agreement on this issue. I cannot go further than that right now.
I would like to go on to refer to a couple of points that the noble Baroness, Lady Suttie, and the noble Lord, Lord Maclennan, made about the involvement of the devolved Administrations in the process of establishing our negotiating position. As has been said before, we will give every opportunity for the devolved Administrations to have their say as we form our strategy and we will look at suggestions that they put forward. As regards mechanism, the joint ministerial committee has been set up to enable discussions with devolved Administrations and government and has started to meet.
I turn to parliamentary scrutiny once Article 50 has been triggered. There are three strands of activity that I am sure Parliament will wish to scrutinise: the process of the negotiations themselves, the outcome of those negotiations and the passage of the great repeal Bill.
I start with the scrutiny of the negotiations. I welcome the fact that your Lordships, especially the Select Committees, are thinking hard about how your Lordships can co-ordinate scrutiny of my department’s work and the negotiations overall. Clearly, the Commons Select Committee for Exiting the EU as well as your Lordships’ EU Committee and its sub-committees will play crucial roles. But as the EU Select Committee report highlights, the issue of what information should be made available, and when, is a matter that we clearly need to agree upon. We have committed as a Government—and I commit again here—that Parliament will have access to at least as much information as members of the European Parliament. That is a point that my noble friend Lord Higgins referred to, as did the noble Earl, Lord Kinnoull, and the noble Lord, Lord Beith.
The EU Select Committee’s report goes into helpful detail in exploring what information the European Parliament will receive. I am very grateful for that. I assure your Lordships that my ministerial colleagues and I are considering the mechanisms for transmitting this information in such a way as to ensure that there can be timely debate and scrutiny on the negotiations, while at the same time ensuring that complete confidentiality can be maintained. For example, we are closely watching the recently opened TTIP reading rooms to see what the advantages and disadvantages of this approach are. Of course, we do not yet know the extent to which the previous and most relevant precedents will be followed by the institutions of the EU, not least because there is no direct precedent for an exit negotiation of the kind that we are about to enter into, so we do not yet know precisely what level of information the European Parliament will receive. However, your Lordships should be in no doubt that we will honour the commitment that my right honourable friend the Secretary of State gave to the committee.
The noble Earl, Lord Kinnoull, referred to the role of Select Committees in this House and the co-operation between them. I am aware that the Senior Deputy Speaker—the noble Lord, Lord McFall—and the Liaison Committee, which he chairs, have been on the front foot in seeking to ensure that the work of your Lordships’ committees benefits from closer than normal communication and co-operation between committees. He has established an informal forum in which the chairmen of the relevant investigative and legislative Select Committees will share notes to try to avoid unnecessary duplication of effort. The Government stand ready to lend their assistance to this forum, as well as to continue to talk directly to the committees themselves, when called upon to do so. I will certainly reflect on the noble Earl’s points about the media and communications.
As regards the end of the negotiations, as I have said before, the Government will observe in full all relevant legal and constitutional obligations that apply. The precise timing, terms and means by which we leave the EU will be determined by the negotiations that follow the triggering of Article 50. The Government, though, are very clear about the obligations of the Constitutional Reform and Governance Act 2010. That Act is clear that both Houses of Parliament have a role in approving treaties as set out in the Act, which is a point my noble friend Lord Inglewood raised.
The noble Lord, Lord Beith, referred to the great repeal Bill. This will be a significant piece of legislation. As with any legislation, parliamentary scrutiny is invaluable, and it will certainly be invaluable on this. We are indeed considering the very best approach to ensure that Parliament, including the various committees, has the appropriate opportunities to scrutinise the Bill. We will set out the content of the Bill in due course and the best approach to involving Parliament in a meaningful way in what will be a very important piece of legislation.
There are a number of other excellent points in these reports which bear close consideration. My noble friend Lord Balfe and others talked about the role of this Parliament and others in creating close links with the European Parliament. I should mention that my right honourable friend the Secretary of State was in Brussels today talking to MEPs. I entirely endorse the points that were made in the committee’s report about the role that Parliament can play in this process.
The electorate’s decision to leave the European Union was indeed a pivotal moment in our nation’s history. As the noble Baroness, Lady Smith, said last week, the role of Parliament is clearly not to block Britain’s departure but to scrutinise the steps that the Government now take in delivering upon it. The issue at hand is the balance we strike between, on the one hand, transparency and accountability, and, on the other, protecting the national interest and not binding the Government’s hands. Getting this balance right is something that the Government are completely focused on. From this debate, I know that your Lordships are very mindful of that. Each of us knows the responsibilities that we have in this House to kick the tyres of government policy, which may be uncomfortable for those of us standing at this Dispatch Box. But each of us also knows that, as Members of an unelected Chamber, there are limits to what we might do. In the weeks and months ahead, I am sure that your Lordships will reflect carefully on getting this balance right, as the Government most certainly will do.
I remain committed to working with your Lordships and involving this House as much as we can in the months ahead. I once again thank all those who have spoken tonight, and I thank above all those who have contributed to the work of the committees for their contributions to the debate. I am sure that there will be more to come.
My Lords, there is another debate waiting to start and the hour is advancing so I shall have to be brief. Fortunately, and happily, the reply that my noble friend the Minister has just given to the debate was so comprehensive and thorough that my task is made very much easier. I thank him for that on behalf of everyone who has spoken in the debate, and for the energy and commitment that he has shown throughout the time he has occupied this position on behalf of this House’s interest in Brexit matters.
This has been a serious and well-informed debate and I thank all those from all parts of the House who have spoken, particularly the leading spokesman for the Liberal Democrat Party—the noble Baroness, Lady Ludford—and, for the Labour Party, almost on her own until the very last minute, the noble Baroness, Lady Hayter. We heard particular expertise from the Cross Benches, which we almost take for granted but value very much indeed. I am grateful that each committee’s report was well received, not just by those members of the relevant committee who had helped to write it. We tried very hard to get them right. It is encouraging if the House thinks that we did.
As well as the many familiar points that were made during the debate, lots of individual, interesting, specific and new points were made that are novel and worth pursuing. That makes the debate more worth while than it might otherwise have been, and so does the fact that there was not complete unanimity on every single aspect of what was debated. There have been many variations on a theme but I think the central message that came through came from the speech of my noble friend Lord Boswell of Aynho right at the beginning, when he said that the Government must make a positive commitment to engaging with Parliament. That sums up a lot of the sentiment expressed in the course of the last few hours. I earnestly hope that today’s debate and the two reports may contribute to improving the handling of our nation’s approach to Brexit and to what follows.