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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.