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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.