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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.