My Lords, I shall be brief in making a point that I regard as fundamental. The length of my speech will be in inverse proportion to the importance of what I wish to convey. I am not concerned here with the principle of Brexit. Debate on whether the United Kingdom leaves or remains within the European Union is toxic and I associate myself with neither side in the debate. Proponents on both sides tend to lack not only balance but self-awareness.
My concern covers a matter touched upon earlier today in discussing the various amendments to the procedure Motion, and that is the constitutional implications of the Bill before us. The Bill is constitutionally novel, and some would argue objectionable, inasmuch as it impinges on the established relationship between Parliament and the Executive. I distinguish what the Bill seeks to achieve from the procedure adopted to achieve it.
The claim that the House of Commons is “taking back control” can be utilised only in respect of procedure. The current precedence of government in the business of the other place, as stipulated by Standing Order, derives from the Balfour reforms of 1902. However, wresting from the Government control of a particular policy, or determining how the Government will act in pursuing a policy, is not a case of taking back control. You cannot take back something that you never had.
Our current constitution is grounded in the Glorious Revolution of 1688. The Bill of Rights 1689 established that the Crown could no longer legislate, suspend laws or raise taxation without the assent of Parliament. However, the position of Parliament in relation to the Executive was and remained reactive. Parliamentarians made it clear that they still looked to the monarch to come forward with a policy. Parliament could and can say no to the Government; it could and can amend a Bill brought forward by the Government, but the onus for the measure continues to rest with the Government. They may come back with a fresh policy of their own, or they may choose to withdraw or not continue with a Bill that has been amended in a way of which they disapprove. As I say, the onus continues to rest with government. The status of each—government and Parliament—is clear and distinct and the relationship well understood. Since the emergence of Parliament in the 13th century, Parliament has been a reactive body, responding to demands of the Crown.
This Bill marks a departure from that clearly understood position. It confuses the relationship. That relationship has a clear, principled rationale. It means a clear line of accountability, with a Government accountable to Parliament and, through parliamentary elections, accountable to electors. We are in danger of engaging in an exercise that, like referendums, is strictly speaking irresponsible. With referendums, there is no means by which electors can hold themselves responsible for the outcomes. Similarly, with policy determined by a transient majority of parliamentarians, there is no single coherent body that stands before the electors to be held responsible for the policy.
If we proceed with this Bill—especially Clause 1(1)—we should not do so in a constitutional haze. I have previously quoted in debate Sir Sidney Low, who in his book The British Constitution, published in 1928, wrote:
“In England we often do a thing first and then discover that we have done it”.
I fear that we may be in danger of doing something without fully grasping what we are doing. We in this House especially should act only when we have understood and fully reflected on the constitutional implications of what we are doing. We need to raise our gaze beyond the immediacy of a toxic and confused debate, and focus on the consequences for our constitutional arrangements.
The House of Commons enjoys primacy and is entitled to get its way, but that does not absolve this House of its responsibility to ensure that legislation is examined thoroughly and as far as possible improved, if necessary inviting the other place to think again about provisions that engage fundamental constitutional principles.