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Article 50 (Constitution Committee Report) - Motion to Take Note

Part of the debate – in the House of Lords at 6:27 pm on 22nd November 2016.

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Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench 6:27 pm, 22nd November 2016

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.