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House of Lords Hansard

European Union (Notification of Withdrawal) Bill

07 March 2017
Volume 779

    Report (Continued)

    Amendment 3

    Moved by

  • 3: After Clause 1, insert the following new Clause—

    “Parliamentary approval for the outcome of negotiations with the European Union

    (1) The Prime Minister may not conclude an agreement with the European Union under Article 50(2) of the Treaty on European Union, on the terms of the United Kingdom’s withdrawal from the European Union, without the approval of both Houses of Parliament.(2) Such approval shall be required before the European Parliament debates and votes on that agreement.(3) The prior approval of both Houses of Parliament shall also be required in relation to an agreement on the future relationship of the United Kingdom with the European Union.(4) The prior approval of both Houses of Parliament shall also be required in relation to any decision by the Prime Minister that the United Kingdom shall leave the European Union without an agreement as to the applicable terms.”

  • My Lords, Amendment 3 is in my name and the names of the noble Baroness, Lady Hayter, the noble Lord, Lord Oates, and the noble Viscount, Lord Hailsham. The purpose and effect of Amendment 3 is very simple. It would ensure that at the end of the negotiating process, the approval of Parliament would be required for the terms of our withdrawal from the EU. The Prime Minister has accepted that principle: she has undertaken that any agreement with the European Union on the terms of our withdrawal, and any agreement on our future relationship with the EU, will be put to both Houses of Parliament for their approval. She has also promised that this will occur before the withdrawal agreement is sent to the European Parliament for its consent. That must be right: this Parliament must have at least the same opportunity as the European Parliament to disagree with the terms of any draft agreement. The Prime Minister has given an undertaking but the Government are refusing to include the commitment in the Bill. Given the importance of the decision to leave the EU and the importance of the terms on which we are to do that, the role of Parliament must surely be written into the Bill—no ifs and no buts.

    The amendment has been revised since the very helpful debate in Committee last Wednesday evening. As suggested by the noble and learned Lord, Lord Hope of Craighead, during that debate, proposed new subsections (1), (2) and (3) in the amendment set out the undertaking given to the House of Commons by the Minister, Mr David Jones, on 7 February at col. 264. The only alteration to what Mr Jones said is that the amendment does not commit the Government to proceeding by way of a Motion in both Houses. The amendment allows the Government to decide what would be the best means of seeking and obtaining approval from both Houses. That is because of the point made in Committee last Wednesday night by the noble Lord, Lord Lisvane, with his enormous knowledge and experience of parliamentary procedure.

    Proposed new subsection (4), which has also been revised since the debate last Wednesday, requires the “approval of both Houses” if the Prime Minister decides that,

    “the United Kingdom shall leave the European Union without an agreement”,

    as to the terms. Parliament must also have a role in those circumstances. It must be for Parliament to decide whether to prefer no deal or the deal offered by the EU.

    I will also address a point that has been raised with me by some noble Lords, about what happens if the two Houses disagree when the agreement, or lack of agreement, is put to Parliament. It is of course the Prime Minister who has decided that the terms of our withdrawal are so important that the approval of both Houses of Parliament should be required. The White Paper says, at paragraph 1.12:

    “The Government will … put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament”.

    The Minister, Mr David Jones, stated in the House of Commons in Committee that,

    “the Government will bring forward a motion on the final agreement, to be approved by both Houses of Parliament before it is concluded”.—[Official Report, Commons, 7/2/17; col. 264.]

    In any event, if this House were to agree this amendment today, it is open to the Government, if they are concerned about this issue, to seek to amend this proposed new clause in the Commons next week to address what happens if the two Houses were to disagree.

  • This is a very important point, and I am glad that the noble Lord is addressing it in such detail, but we cannot make our judgments on the basis of what the Government have said they might do. The judgment today must be on the basis of what is in this proposed new clause. I therefore ask the noble Lord, from his perspective, given that the proposed new clause repeatedly says,

    “the approval of both Houses of Parliament”,

    what, in his judgment, would the solution be if one House said yes and the other said no?

  • As I have said, this is the Prime Minister’s undertaking, but since the noble Lord has asked me—I do not have to tell him this, given his enormous experience—if the House of Commons were to give its approval, this House would, in my judgment, rightly be told that it should be very slow indeed to take a different view from the elected House. If we were to disagree with the Commons, I understand that it would be open to the Government immediately to take the matter back to the Commons for a further confirmatory resolution, which, if agreed, would lead to a further approval Motion in this House. I expect, at that stage, it would be exceptionally unlikely that this House would stand its ground. I repeat, however, that if the Government were dissatisfied with that, which is the consequence of the undertaking given by the Prime Minister, it is open to the Government to bring forward an amendment in the other place. Indeed, it was open to the Government in this House to bring forward an amendment to this amendment to deal with the matter.

  • I am grateful to the noble Lord for giving way. He says that it is “exceptionally unlikely” that this House would insist in those circumstances on having its way, but that falls some way short of dealing with the point raised by the noble Lord opposite. Does the noble Lord not agree that this proposed new clause, in effect, gives this House a statutory veto on the decision made by the Prime Minister with the support of the other place to implement the decision of the British people to leave the European Union?

  • The noble Lord will form his own judgment; I am putting to the House that this amendment implements the undertaking given by the Prime Minister. She has recognised—in my view rightly—that so important are these matters that it is necessary, and imperative, to obtain the approval of both Houses of Parliament. The constitutional realities, as I understand them, are that this House is exceptionally unlikely to stand its ground against the view of the elected House. However, noble Lords will form their own judgment.

  • My Lords, does the noble Lord also agree that there is nothing in this proposed new clause that precludes the approval of both Houses being expressed in an Act of Parliament? If that is correct, the Parliament Act stands behind it.

  • I am grateful to the noble Viscount. As I have already said, this amendment is different from the amendment that we had in Committee because it does not state by what the means the Government must seek the approval of both Houses. The noble Viscount is absolutely right: it is open to the Government to proceed by way of emergency legislation.

  • My Lords, the noble Lord is an exceedingly distinguished lawyer, as we all know. I recognise that, normally, the legal profession seeks precision. The noble Lord is laying before the House an amendment that is imprecise, and he has admitted that; it has been pointed out by my noble friend Lord Howard. He uses the term, “extremely unlikely”. Section 20 of the Constitutional Reform and Governance Act 2010 has a clear device for breaking a disagreement. Why is the noble Lord, as a lawyer concerned with the precise, not putting before Parliament precise legislation that deals with the matter he recognises needs to be dealt with?

  • I repeat to the noble Lord: I have put in the amendment precisely the undertaking that the Prime Minister has given. If the Prime Minister takes the view that it is appropriate to address specifically in the amendment the means by which any division of view between the two Houses can be broken, it is entirely up to her, when the matter returns to the Commons—if it does—to amend this provision to specify, for example, Section 20. If I had put in the amendment a particular means of breaking a deadlock between the two Houses, I would have been told by the noble Lord and others that that was not the solution we welcome.

  • Can the noble Lord explain? He has repeatedly said that what he has put in his amendment and wants to put in the Bill is no different from what the Prime Minister indicated to the House of Commons. Surely the difference is that the Prime Minister’s undertaking was that there would be a vote in both Houses on the issue of a deal or falling back on WTO. Reading his amendment, his difference is between no deal and what? What happens? Can he explain?

  • What happens? Nobody knows what will happen: that is the whole point of the difficulty that we face in 21 months’ time. I do not know what will happen. The noble Lord does not know what will happen. I am saying to the House that it is essential that Parliament has an opportunity, guaranteed by legislation, to address the circumstances at the time.

  • I know that some people in the House do not want to see the flaws in this, but the answer to my question—no deal or what?—is that we end up rejecting the view that the British people voted for: that we should leave the European Union. That is the hidden agenda behind the amendment.

  • If by referring to a hidden agenda, the noble Lord is suggesting that I have some motivation, I assure him that my only motivation is to ensure that Parliament has a guaranteed opportunity at the end of the negotiating process to decide whether the terms of our withdrawal are acceptable or not. That is a basic question of parliamentary sovereignty.

    The amendment will not delay notification of withdrawal from the EU. It does not commit the Government to adopt any specific approach in the negotiations. It does not impede them in the negotiations any more than the undertaking already given by the Prime Minister. Crucially, it will guarantee that the Government must come back to both Houses to seek approval for the result of the negotiations.

  • I am grateful to the noble Lord for giving way and wish him a happy birthday. Would I be right in thinking that the difference between what he is advocating and what some other noble Lords are advocating is the difference between parliamentary authority and the royal prerogative? Is he not doing exactly what the Supreme Court of the United Kingdom said in Gina Miller’s case, which he won?

  • I am very grateful to the noble Lord. I was worried for a moment that he was going to sing at me, but I entirely agree with his point. We are considering the Bill because, and only because, as he reminds the House, the Supreme Court ruled as a matter of law that parliamentary sovereignty is required at this stage of notification of withdrawal. I say, not as a matter of law—because I am not arguing a legal case—but as a matter of constitutional principle, that parliamentary sovereignty is as important at the end of the negotiating process. I beg to move.

  • My Lords, many of your Lordships have made the point that we are not here to refight the referendum campaign; there is a clear mandate to trigger Article 50. My own personal position has been clearly established since I first joined the Conservative Party in 1951. I believe, and always have, that Britain’s national self-interest is inextricably interwoven with those of our European partners. I deeply regret the outcome of the referendum.

    That said, within three days of that outcome, I publicly made three points. First, I urged the Government to get on with the disengagement process, not only because they had a clear mandate to do so but because I thought that delay would only add uncertainty to the damage that the result itself had produced. Secondly, I urged the Government to appoint Brexiteers to the three Cabinet positions that would front the negotiations. It was clear to me then that failure to do so would open the door to the allegation that if only “the right people” had been put in positions to lead the charge, a much better deal would have been done. I also took the view, perhaps naively, that as campaigners for Brexit, it was not unreasonable to assume that they might have answers to the numerous questions that we faced. Your Lordships will be aware that both of these events have now taken place and I am very pleased to say how fully I support the Prime Minister in what she has done.

    That leaves only my third point—the most controversial of the three. I said then that the fightback starts here. Like so many of your Lordships, I enjoyed the privilege of many years in another place—in my case, 35 years. I learned the limitations of government in a parliamentary democracy and I learned the role of opposition in such circumstances. Time and again I have been involved, along with many of your Lordships on these Benches, in opposing by every constitutional means in our power the mandate of the elected Government. Not only did we oppose their mandate from the very first day that Parliament met, we began the long process of repealing the Acts of which we disapproved.

    In the end, it came down to a belief in the ultimate sovereignty of Parliament. I must make it clear that, in accepting the mandate to negotiate our withdrawal from the European Union, I do not accept that the mandate runs for all time and in all circumstances—48% of our people rejected that concept last year. They have the same right to be heard as I hope so many of us recognised in those long years of opposition in another place.

    We now face a protracted period of negotiation. No one has the first idea what will emerge. No one can even tell us what Governments in Europe will be there to conclude whatever deal emerges. No one can say with certainty how British public opinion will react to totally unpredictable events. To give just one example, I am told that it took 240 regulations to introduce the single market in the late 1980s. I remember the resentment that caused, particularly to small and medium-sized companies. I understand that it may take 1,600 regulations to unravel more than 40 years of closer union—and no one can say how the vital small and medium-sized sector of our economy will react to the circumstances that they will then face.

    Everyone in this House knows that we now face the most momentous peacetime decision of our time. This amendment, as the noble Lord so clearly set out, secures in law the Government’s commitment, already made to another place, to ensure that Parliament is the ultimate custodian of our national sovereignty. It ensures that Parliament has the critical role in determining the future that we will bequeath to generations of young people. I urge your Lordships to support the amendment.

  • My Lords, I support the amendment moved by the noble Lord, Lord Pannick. I will not take up too much of the House’s time, not least because I think the issue at stake is really rather simple. On 17 January this year, the Prime Minister confirmed in her Lancaster House speech the Government’s intention to,

    “put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament”.

    As the noble Lord, Lord Pannick, said, on 7 February the Minister of State for Exiting the European Union stated that,

    “the vote will cover not only the withdrawal arrangements but also the future relationship with the European Union”.—[Official Report, Commons, 7/2/17; col. 264.]

    This amendment merely gives legislative effect to the Government’s pledge. In doing so it will assist the Prime Minister in upholding her intention, should she or any successor be tempted to resile from it. The amendment will also provide clarity that the Government will require the prior approval of Parliament should the Prime Minister decide to leave the European Union without any agreement at all.

    In Committee, some noble Lords on the Benches opposite questioned the need for legal underpinning of the commitment given by the Government to a meaningful vote. The reason is simple. We do not trust the Government on this matter—not because we do not trust the integrity of individual members of the Government but because, as the noble Lord, Lord Deben, pointed out in Committee, we are only discussing this at all because the Government were forced by the courts and the arguments made by the noble Lord, Lord Pannick, to come to Parliament and hear its voice on the matter.

    If we want to ensure that our sovereign Parliament, so often championed by the leave campaigners, has a clear and decisive role in scrutinising the final outcome of this process, it must assert its rights in legislation. If the Government are genuine in the commitment they have given on these matters, they should have no problem accepting the amendment. If they are not willing to do so, it will call into question the sincerity of their commitment and only strengthen the argument to pass this amendment into law.

    The noble Viscount, Lord Hailsham, reminded us last week:

    “Prime Ministers can go, Ministers can be sacked, Parliaments can change and Governments can cease to exist. One needs to enshrine assurances that stand against … changes in circumstances”.—[Official Report, 1/3/17; col. 921.]

    I wholeheartedly agree with the noble Viscount. That is why I support the amendment. I hope that your Lordships’ House will do so, too.

  • My Lords, on the noble Lord’s latter point, it is perhaps worth recalling to the House what the Minister, Mr David Jones, said in the other place:

    “The Government have repeatedly committed from the Dispatch Box to a vote in both Houses on the final deal before it comes into force. That, I repeat and confirm, will cover not only the withdrawal agreement but the future arrangement that we propose with the European Union. I confirm again that the Government will bring forward a motion on the final agreement … to be approved by both Houses of Parliament before it is concluded, and we expect and intend that that will happen before the European Parliament debates and votes on the final agreement”.—[Official Report, Commons, 7/2/17; col. 269.]

    In the course of the debate, the Minister repeated those sentences three times, and the shadow Secretary of State, Keir Starmer, to whom I paid tribute in the Second Reading debate, said:

    “Minister, I am very grateful for that intervention. That is a huge and very important concession about the process that we are to embark on. The argument I have made about a vote over the last three months is that the vote must cover both the article 50 deal and any future relationship—I know that, for my colleagues, that is very important”.—[Official Report, Commons, 7/2/17; cols 264-65.]

    Both Houses will get a vote on the final draft deal, and we do not need any of these amendments. It is a complete distortion to suggest that the amendments before us today—

  • Noble Lords

    Order.

  • I will give way in a second.

  • Noble Lords

    Order!

  • I shall give way to the noble Lord if he sits down and lets me finish my sentence.

    It is a complete distortion to suggest that the Government are likely to renege on those promises or that the amendments that we are discussing today put on to the statute book exactly what was said by the Prime Minister and the Minister in the House of Commons. They do something completely different.

  • I am most grateful to the noble Lord for giving way, but having read out three times what the Minister said in the House of Commons he has revealed that the Minister failed to answer the question that he and the noble Lord, Lord Howard, and others put to my noble friend on what happens if there is a disagreement between the two Houses. Perhaps he could address that, and perhaps he could also put that question to the right person to put it to, which is not my noble friend but the Minister who is going to reply to the debate and who will have ample opportunity to reply to it.

  • I know that the noble Lord is very experienced. If he does not know the difference between a resolution in the House of Commons and putting in statute a power of veto for the House of Lords, I am very surprised to hear him making that point.

    The point about the amendment that we are discussing, Amendment 3, is that it is a wrecking amendment.

  • I am not going to give way; I am going to make some progress.

  • Noble Lords

    Order!

  • How can it be a veto since we cannot in fact impose our will on the House of Commons?

  • The noble and learned Baroness is very experienced, and she should know that this House is able to impose its will on the House of Commons. By convention, we do not do so, and, if we sought to do so, we would be in very deep water. This amendment is taking us into deep water.

    I return to the issue under discussion, which is the amendment. Proposed new subsection (1) says:

    “The Prime Minister may not conclude an agreement with the European Union under Article 50(2) … on the terms of the United Kingdom’s withdrawal … without the approval of both Houses of Parliament”.

    So we get to the final hour, at midnight, when the deal is being done, and the Prime Minister says, “Hang on a second, I cannot agree a deal—I’ve got to go and consult the House of Commons”. It is a ridiculous proposal—

  • Noble Lords

    The Prime Minister’s!

  • It is not the Prime Minister’s proposal. It is a ridiculous proposal to say that the Prime Minister may not conclude an agreement until this has been sorted.

  • Would my noble friend give way?

  • No, I am not going to give way to my noble friend.

  • Noble Lords

    Oh!

  • I promise to give way to him once I have actually made my points about the amendment.

    It is a first rule of negotiation that you never negotiate with someone who does not have authority to conclude the deal. The effect of these proposals is to put Ministers in a position where their authority is in doubt and where, in effect, this House and the House of Commons are parties to the negotiation, which has to be conducted between Ministers and people from the EU.

  • I wonder whether the noble Lord realises that the Ministers or European officials with whom this will be negotiated have all got to go back to every European parliament and the European Parliament before they can conclude a deal.

  • I do realise that. I have the utmost respect for my noble friend, who helped to get me elected in 1983, which may not be one of the most important things on his escutcheon. He has served the party with great distinction. But I have to say to him that it is not the moment for this House to grab the mace and challenge the authority of the House of Commons.

  • Noble Lords

    Oh!

  • Subsection (2) of the proposed new clause states that:

    “Such approval shall be required before the European Parliament debates and votes on that agreement”.

    How are Ministers supposed to deliver that? They are not in control of the timetable for when the European Parliament debates these matters. It is an impossible condition for them to meet.

  • I beg the noble Lord’s pardon and am grateful to him for giving way. The phrase,

    “this will happen before the European Parliament debates and votes on the final agreement”—[Official Report, Commons, 7/2/17; col. 264],

    is set out in Hansard in the undertaking given by David Jones on 7 February. The more the noble Lord makes his points, the more important it is, it seems to me, to pass this amendment.

  • If the noble and learned Lord accepts my point then the more important it is not to seek to put it in statute. He did not actually deal with my point. How on earth are Ministers able to ensure that,

    “approval shall be required before the European Parliament debates”,

    when they are not in charge of the timetable for those debates? I would happily give way to him if he would like to answer that point. He is arguing that this should be put in statute and he should be able to explain how it could be achieved.

  • My Lords, I would love to continue this discussion until we reach an end of it, but all I am doing is referring to the words of the Minister himself. It is for him to work out how this undertaking, which he gave to Parliament and which fits exactly with the wording of the White Paper, should be conducted. It is very important that we make this matter clear. The best way of dealing with it is to use the Minister’s words in proposed subsections (1) to (3)—as the noble Lord, Lord Pannick, has done—and pass the amendment. The House of Commons can look at it again if it wishes.

  • The noble and learned Lord is normally very careful and precise. At the beginning of my speech I read out the words that David Jones used in the other House. He said: “We expect and intend” that that will happen before the European Parliament debates. This says that such approval “shall be required” before the European Parliament debates. There is a big difference between “expect and intend” and “shall be required”.

  • Does the noble Lord agree that the vote in the European Parliament will be about whether the deal that is negotiated will be acceptable, not about whether the UK actually leaves the EU or not?

  • My noble friend is absolutely right on that point. Subsection (3) of the proposed new clause states that:

    “The prior approval of both Houses of Parliament shall … be required in relation to an agreement on the future relationship of the United Kingdom with the European Union”.

    I put that point to the noble Lord, Lord Pannick, in my intervention. This effectively gives this House, and the House of Commons, a veto on Brexit. It gives it the ability to prevent us from leaving the European Union, despite the fact that we have had the biggest vote in our history from people requiring that. It would be immensely destructive to the reputation of Parliament and of this House.

    Subsection (4) states that:

    “The prior approval of both Houses of Parliament shall also be required in relation to any decision by the Prime Minister that the United Kingdom shall leave the European Union without an agreement as to the applicable terms”.

    That means that Ministers are unable to walk away. This was the mistake that David Cameron made. If he had walked away he might have been able to get a proper deal—who knows? He did not walk away and they knew he was not going to. That is why he got such a useless deal. This ensures that Ministers cannot walk away. For the noble Lord, Lord Pannick, to suggest that the amendment is simply implementing the Prime Minister’s promise is a complete misrepresentation.

  • I am sorry; I did not say that. I made it very clear to the House that proposed subsections (1) to (3) implement the undertaking. That is not the case in relation to subsection (4). I take the view—noble Lords will form their own judgment—that it is absolutely vital for this House and the other place to have a say on whether we should leave with no deal or the one that is being offered. I made that very clear.

  • I have to say to the noble Lord that we know what he is up to, and we know what is going on.

  • Noble Lords

    Oh!

  • I appreciate that I am in a minority in this House, and not just because I am a Scottish Tory. I am in a minority because I support the views of the majority of people in this country. This House is absolutely full of people who still have not come to terms with the results of the referendum. This is a clever lawyer’s confection in order to reverse that result. That is what we are debating. That is what it is about.

  • Noble Lords

    Order.

  • I have already given way to the noble Lord. He can make his own speech.

  • I am not giving way to the noble Lord.

  • Noble Lords

    Order!

  • Well, all right. I will give way to the noble Lord.

  • I am most grateful to the noble Lord. I am sorry that I am causing him such frustration this afternoon.

  • The House, not him.

  • Normally in this House we do not speak from a sedentary position.

  • My sedentary comment was that the noble Lord is annoying the House, not just an individual Member.

  • I am most grateful to the noble Lord for having arrogated to himself the decision as to what the hundreds of people around this place believe.

    The point I was going to raise, and ask the noble Lord, Lord Forsyth, to address, is this. Of course the Prime Minister of this country has the ability to ensure that we leave the European Union without an agreement, because of the two-year time limit in Article 50, which the noble Lord has not addressed. That time limit is absolute. It will be triggered within the next few days and, sometime in 2019, it will reach its conclusion. It takes two to negotiate. Since the Prime Minister will be one of them—and the 27 and the institutions of the European Union will be the other—she has the ability to ensure that we leave without an agreement. That is the eventuality that is being dealt with in this amendment.

  • The noble Lord makes my point for me. If, after two years, we have no agreement, then we will have left the European Union. I need to conclude my remarks.

  • Noble Lords

    Hear, hear!

  • This place is beginning to be like the House of Commons.

    What is going on here is like Gulliver. These amendments are trying to tie down the Prime Minister—by her hair, her arms and her legs—in every conceivable way in order to prevent her from getting an agreement and us from leaving the European Union. The House should reject this amendment for what it is—which is an unelected Chamber trying to frustrate the will of the democratically elected Government and of the people, which has been expressed in a huge vote in a referendum.

  • My Lords, one of the main reasons why we are where we are now is that the Prime Minister and the Government wanted to go ahead and use the prerogative, and it is only because of the ruling in the Supreme Court that we are debating this here.

    In this amendment, we are asking to have something put in statute to protect against uncertainty in the future. We have heard so far in the discussion that questioning why voters voted—remain or leave—would be an insult to them. However, this was not a general election. In a general election, you have the party’s manifesto—or an “Ed’s stone” and its commandments. If the people do not like the Government and say that they have not lived up to their manifesto, or have not delivered, in five years’ time they can throw them out. The difference here is that this decision is permanent. The last referendum was in 1975—over four decades ago. Then, there was a majority of 67%. A supermajority was achieved. The decision was decisive. There was certainty. This time, we were told that it was a binary decision—remain or leave—but the outcomes are anything but binary. One of the outcomes is a hard Brexit.

    The main issue here is that people are allowed to change their minds. Whether it is the Prime Minister, her Ministers, Members of the other place or Members of this House who want to change their minds, it their right to do so. In fact, Steve Jobs, the founder of Apple, said that changing your mind was a sign of intelligence. As Keynes said, “When the facts change, I change my mind”. As the noble Lord, Lord Heseltine, said, many facts and many outcomes of this negotiation are completely uncertain. The Dutch elections, the French elections and the German elections are coming up. The eurozone might collapse. Europe might even reform its immigration rules, which we would like. Therefore, it is only right that Parliament has a full say on the road ahead. This amendment would protect us from the potential outcomes.

    I concluded my Second Reading speech by quoting Professor Deepak Malhotra of the Harvard Business School, a world expert in negotiation. He told me to make sure that I read a book called The Guns of August by Barbara Tuchman about the beginning of the First World War. He said that reading that book was like watching a train crash in slow motion. That is what we are seeing right now with Brexit. I conclude that we need to support this amendment more than anything in order to protect the future.

  • I wonder whether in 1975 the noble Lord knew about the Maastricht treaty?

  • My Lords, in 1975 I was barely a teenager.

    I conclude by saying that the main reason why we need to support this amendment is for the sake of future generations and to protect them. I am sure that noble Lords have received several tweets, emails and letters from individuals. Just this morning I received an email that said, “Please support parliamentary democracy and our young people’s future”. One of our doorkeepers reminded me of an ancient Gaelic saying: “We do not inherit the earth from our ancestors, we borrow it from our children”.

  • The noble Lord, Lord Hannay, seemed to suggest that we should support this amendment because Article 50 was not unilaterally irrevocable and that we would have to leave the EU. The argument used by the noble Lord, Lord Bilimoria, just now was that we should support the amendment because it is unilaterally irrevocable. Which is it?

  • Whether it is irrevocable has not been tested legally. The expert on this is the noble Lord, Lord Kerr, who wrote Article 50 and who claims that it is revocable. However, this amendment would cover all potential outcomes, and that we should have.

  • My Lords, I speak briefly to Amendment 4, which stands in my name and that of the noble Lord, Lord Russell of Liverpool. It is similar in intent to the amendment moved very eloquently by the noble Lord, Lord Pannick, but it is shorter. I have sought merely to put in the Bill the remarks of Mr Jones and other Ministers: namely, that Parliament will have an absolute legal right, and that it will exercise its right before the European Parliament has exercised its. I say in parenthesis that we have to remember that whatever is agreed will go round every parliament, and indeed around some regional parliaments among the 27 nations, and it will go to the European Parliament, of course.

    We have a system of parliamentary democracy in which I take enormous pride. I shall always be glad that I spent 40 years at the other end of the Corridor, not one of them in government but always trying to play a part in holding government to account. That is the supreme task of Parliament, in both this House and the other place. Of course, as I have repeatedly made plain in my interventions in the debates on this Bill and on many others, the ultimate power, authority and supremacy is with the other place. We neglect that fact—and it is a fact—at our peril. Nevertheless, we have not only a right but, I believe, a duty to ask the other place to reconsider if we think that it has not got it right. While I had no hesitation this morning in voting against the referendum amendment, I equally have no hesitation in speaking to this one, because all we are saying in this amendment and in the amendment moved so well by the noble Lord, Lord Pannick, and supported by my noble friend Lord Heseltine and others is that Parliament’s right and duty must be in the Bill.

    It is not a question of the integrity of those who have made statements. Of course I accept that without question. But there is a difference between a statement expressing intent and a legal obligation. That is what we seek to insert in the Bill—a legal obligation that should be recognised. I very much hope that even at this late stage my noble friend the Minister will feel able at least to acknowledge that there is some validity in what we seek—and I very much hope that in the other place they will reconsider.

    That would not delay the passage of the Bill by more than a day. We could get it through this House in all its remaining stages next week. It would in no sense alter the intent or purpose of the Bill, because it would give the Prime Minister what she has asked for. I sincerely hope that she will be in rude and vigorous health for many years to come and will still be in office long after the sad day when we have vacated the European Union. Nevertheless, we cannot guarantee that that will be the case, and one Prime Minister cannot necessarily bind her successor. Look at the changes that took place in June and July last year. How were the mighty fallen.

    Unless my noble friend can give us the assurances that we seek, when we come to vote I urge your Lordships that we vote to put Parliament in its rightful place: the House of Commons first, but the House of Lords, this noble House, in its proper position, able to say, “Please reconsider”, and, “We genuinely do not think you’ve got this right”—

  • Will my noble friend give way?

  • I am just about to finish.

    The House of Lords should be able to say, “We do not think you’ve got this right”. Of course, if the other place takes a different line we recognise the limitations on our power. But let us send a message to the other place tonight.

  • My Lords, I hope you will permit me to think aloud; these are not yet crystallised thoughts. I heard the exchanges between the noble Lords, Lord Pannick, Lord Hannay and Lord Forsyth, and I still want to work out some of the complications. For me, Amendment 3 provides for the intrusion of Parliament into the negotiation processes—which I do not think should happen—in such a way that it could prevent any deal ever being reached, because we would be involving ourselves in the processes.

    There is a question that has not been fully answered. The amendment mentions the approval of Parliament three times. It says,

    “without the approval of both Houses of Parliament”,

    once, and:

    “The prior approval of both Houses of Parliament shall also be required”,

    twice. The question that has to be answered is: what happens when this House does not agree with the other House? The amendment says that both must agree, but if we did not agree with the other place, that would give the unelected House almost a veto on the procedure for reaching an agreement with the EU, which in turn would thwart the decision made by the electorate in the 2016 referendum. So that question has to be answered.

    I think that the commitment made by the Prime Minister in January 2017 as to the role of Parliament goes above and beyond what is in the Constitutional Reform and Governance Act 2010. I invite your Lordships to look at that Act, because I think she said more than it allows. I suggest that it is not in Parliament’s gift to make this a condition, as the European Union might well refuse to negotiate, or it might agree not to extend the negotiations. The Prime Minister’s official spokesman said yesterday that,

    “we should not commit to any process that would incentivise the EU to offer us a bad deal”,

    and that any deal that could be rejected by MPs would,

    “give strength to other parties in the negotiation. We believe it should be a simple bill in relation to triggering article 50 and nothing else.”

    For me, and I think that the noble Lord, Lord Hannay, was trying to say the same thing, triggering Article 50 is an irreversible act. Two years after triggering Article 50 the UK will leave the EU. It will do so with or without a deal, but either way it will leave. Article 50, paragraph (3) makes it clear that the treaties will cease to apply two years after notification has been made. It is possible that the 27 EU members might unanimously agree to extend the negotiating period beyond the two years, but this cannot be taken for granted, nor should it be assumed that anything but a brief extension would be offered. This amendment shows no awareness as to the realities presented by the Article 50 timeframe. It may sound like rubbish, but an answer has to be given to the questions raised by paragraph (3). The amendment also overlooks the fact that the European Union (Notification of Withdrawal) Bill is about the triggering of Article 50 and the formal divorce settlement. Neither the Bill nor Article 50 is about negotiating a new agreement with the EU.

    Faith seeking understanding: fides quaerens intellectum. Could somebody explain? If I cannot get a clear answer to the questions I have posed, I may find myself voting no. But if I am helped to understand then I may vote yes.

  • My Lords, like the noble Lord, Lord Faulks, I arrived this morning for the debate on Amendment 1 not sure which way I would vote, but very clear that I was going to be a strong supporter of this amendment. Also like the noble Lord, I thought there was a link between the two. However, my resolution is somewhat different, in that I did not vote for this morning’s amendment but I still strongly support this one.

    One of the difficulties with these debates as to how we should think about the finality of the vote on 23 June last year is that I find myself disagreeing with arguments on either side. On the side of those who, like me, voted remain, it is often suggested that there was something about the vote that was less legitimate than other votes—perhaps because 16 to 18 year-olds did not have the vote or because the leave side lied. But I do not consider those to be reasonable arguments. You may or may not be in favour of 16 to 18 year-olds having the vote, but in our present system voting starts at 18 and that does not change the legitimacy of a general election or referendum result. As for the argument that the leave side exaggerated or, perhaps with the NHS claim, lied, I think there were some exaggerations on the other side as well. In every general election that I can remember, there have been exaggerations on either side, some of which have verged on the mendacious. But they have not invalidated the result of the general election. Democracy is scrappy and imperfect but it is the best system we have. So I accept the result of what happened last year as no more and no less legitimate than any general election. However, that means that as well as being no less legitimate, it is also no more.

    It is the case that, on the day after a general election —the noble Lord, Lord Heseltine, has said this already—Members of the opposition party, be they Labour, Conservative or Liberal Democrat, devote themselves to arguing against what was just agreed by the majority of the population. They put down amendments in the Commons or the Lords, try to delay things in the Lords and work, day after day, to win the next general election. In some cases, they work very hard to bring it forward if they possibly can—there is a very fine play here in London now which records that happening in the Commons in the days of several people currently in this House.

  • I very much agree with the sentiment of my noble friend Lord Kerr that any idea that the vote last June reflects the will of the people in some unanimous fashion—all the people together, una voce, absolute and for ever, unchanging—is, as my noble friend put it, not democratic but the Brezhnev doctrine. Like him, I have been a bit surprised and depressed by the fact that this Brezhnev doctrine, having been first propagated by some of our major newspapers, is now finding an echo chamber among some parts, although definitely not all parts, of the Conservative Party. On the basis of what the noble Lord, Lord Taverne, said earlier, I wish that they would pay more attention to the intellectual lineage of Edmund Burke than that of Leonid Brezhnev.

    The idea that to have another referendum three, four or five years after the last is undemocratic is nonsense. Indeed, the idea that we should reject the possibility of another referendum in principle is in itself undemocratic. If it so happened that there was another referendum in three, four, five or 20 years’ time in which there was a majority for staying in the European Union, that would be equally democratic—no more and no less—than the vote on 23 June. Still, I did not support Amendment 1, because I am not sure that there should be a referendum in two, three or four years’ time. I do not think that by referendum we can solve the uncertainties and issues we will face in two years’ time, but we can and should resolve them by having extensive parliamentary debates at that time.

    We simply do not know what will be the result of the negotiations. Nor do we know what the situation will be in two years’ time. It may be that adverse consequences have emerged from the expectation of leaving the European Union—it may be that they will not. I do not know. I do not think, therefore, that it would be appropriate now to commit to a future referendum, nor do I think we can be sure how we would interpret the result of such a referendum.

  • I wonder whether the noble Lord has picked up his notes for the wrong speech. He seems to be talking about a second referendum.

  • I am going to come very shortly and briefly to why I think these arguments mean that we should have a parliamentary debate. I do not think it would be appropriate to commit now to a future referendum, because I do not think we can know now what the meaning of a no vote in a future referendum would be. Would it be a vote against a result that was too soft or too hard?

  • I am sorry; I know that the noble Lord wanted to speak to Amendment 1 and perhaps it is a bit frustrating that he is actually now dealing with Amendment 3, but it is important that he addresses his remarks to Amendment 3, not to Amendment 1, which is a matter this House has already decided.

  • The very argument as to why we should not commit to a future referendum, the uncertainty of the situation we will then face, is, however, the argument why it is appropriate for us to come back for a detailed debate in both Houses of Parliament at that time to deal with the uncertain circumstances that will then exist. Like others around this House I would in some ways prefer that this referendum more clearly identified the relative powers of the Commons and the Lords in that process. I would have preferred the earlier version of the amendment, which proposed that a legislative process should be brought forward at that time. The most important principle is that we should not treat 23 June as providing answers for ever or the answers to everything. It is therefore absolutely appropriate for us to assert that there should be a process of parliamentary sovereignty, where the details of what is proposed are brought back to both Houses of Parliament for detailed debate at that time.

  • My noble friend Lord Hailsham is a signatory to this amendment and it is right that the House hear from him. Perhaps we can then hear from the Labour Benches, and then from one of my noble friends on the Conservative Benches.

  • My Lords, those who have put their names to the proposed new clause are not seeking to stand in the way of the Bill. Our sole purpose is to ensure that the outcome—agreed terms or no agreed terms—is subject to the unfettered discretion of Parliament. It is, in our view, Parliament and not the Executive which should be the final arbiter of our country’s future. Ironically, in this sense we stand with the campaigners for Brexit who wanted Parliament to recover control over policy and legislation. Incidentally, too, we stand in that long tradition of parliamentarians who have stood for the primacy of Parliament against ministerial fiat. In the old days, that was a contest fought on the battlefields; happily, more recently it has been fought in public debate. Of course, most recently of all it was fought in the law courts. This is a conflict that never ceases. Let us not forget that, had it not been for the judiciary, we would not be debating this Bill—oh no. It was the Government’s intention to trigger Article 50 under prerogative powers; that is, under the residual powers of the Crown.

    It is absolutely central that we should determine the proper interpretation to be given to the referendum of last June. I acknowledge at once—albeit I was a remainer—that the referendum was much more than merely the advisory expression of public opinion. However, I do deny that it gave authority to this Government to leave the European Union whatever the cost, whatever the terms and whatever the prejudice. That cannot be the case because when the public voted last June, they did not—could not—know the outcome. In any event, the Government’s commitment to subject the ultimate decision to a vote of Parliament undercuts that very proposition.

    I believe that the proper interpretation of the referendum is this: it is an instruction to the Government to negotiate withdrawal on the best terms they can get. But that raises an absolutely fundamental question to which this proposed new clause is directed. When the negotiations have crystallised and there are agreed terms—or, perhaps, no agreed terms—who determines the way forward: is it the Executive or is it Parliament? That is the old question we have to resolve. In my view, any believer in a democratic state has to say that the authority lies with Parliament.

    In very brief reference to a second referendum, it may be that Parliament, two years down the track, will decide that it is necessary. It may be justified in doing so; the circumstances may well change. Say, in two years’ time, there is a clear change in public sentiment. Say, too, that Parliament recognises that fact. Is Parliament not then under a duty to test public opinion? I quote the noble Lord, Lord Taverne, who spoke earlier today. At Second Reading he said that only dictatorships,

    “do not allow people to change their mind but in a democracy no decision is ever irreversible”.—[Official Report, 21/2/17; col. 243.]

    I want to turn to the argument that has been advanced by my noble friend Lord Hill of Oareford, who is indeed a very old friend of mine. I say at once that I acknowledge his experience and authority, which are recent. His view, which I am sure will be adopted by the Government, is that if you give Parliament the kinds of powers contemplated by the proposed new clause, you will undercut the negotiating position of the British Government. I do not agree with that view. I share the view expressed by the noble Lords, Lord O’Donnell and Lord Kerr, both citing their own very considerable experience, that the existence of the argument that Parliament will never wear this reinforces rather than undermines the position of the negotiators.

  • One of my noble friend’s most endearing characteristics is that he cannot walk past a wasps’ nest without wanting to poke it with a stick. He has just succeeded. There are two points that I would ask him to reflect on, which we have already touched on in this debate.

    The first—which my noble friend and, I think, all noble Lords, with a few exceptions, would agree with—is that this is going to be an extremely complex negotiation. Anything that adds to that complexity is strongly to be avoided, in my opinion. I do not agree with those who say that this is going to be very simple and we can sort it all out in a matter of time. This is going to be complicated, so we should keep things as least complex as we can make them. When I listened to the noble Lord, Lord Pannick, set out this amendment, it added to my sense that complexity and uncertainty is contained in it.

    Secondly, regarding the effect this might have on the negotiation, does my noble friend agree that the argument some people use—that having a Parliament or a board behind you in a negotiation enables you to have a stronger position—normally applies when the board or the Parliament is adopting a harder line than the person negotiating? I have to tell your Lordships that our friends in Europe do read our debates and our media. They are highly intelligent, sophisticated negotiators. They know where people sit. When my noble friend says that it would not weaken our position, can he not see that there are indeed instances where it would weaken our position because it would make Parliament a player in the negotiation and add complexity to what is already going to be very complex?

  • My Lords, my noble friend has made a very serious point, which enables me to cut directly to the chase, to one of the points I was going to make. It is possible that my noble friend Lord Hill is right about this. There is sometimes a price to be paid for democracy. Indeed, that is the argument that underpins many of the assertions made by the Brexiteers. They argue that, yes, there may be a cost involved in withdrawal but it is more than compensated for by the recovery of democratic control. That argument also applies to the process of negotiation.

  • In answer to that very question, I ask the noble Viscount to cast his mind back to 1991, when he and I were both in the other place. He was a member of the Government, as I recall. On that occasion the then Prime Minister, John Major, brought the Maastricht treaty to the House for its approval twice; first, in seeking a mandate for negotiation; and, secondly, afterwards in seeking the House’s approval for what had been negotiated. If that did not weaken his Government at the time, why should this weaken this one?

  • My Lords, I entirely agree with what the noble Lord has said. Of course, it is also consistent with the principles that underpin Section 20 of the 2010 Act, because that requires all treaties to be ratified by Parliament.

    If I might make a little progress, the Government have in the course of the Bill made a very large number of concessions. It would be churlish not to welcome that fact. Indeed, I rather hope for more. But I agree with the views expressed by the noble Baroness, Lady Kennedy, and the noble Lord, Lord Pannick. It is better by far that the assurances and concessions of Ministers be expressed in statutory language because, as the noble Lord, Lord Oates, has reminded the House, political circumstances may change. Ministers may move on; Governments may fall. Statutory language is always to be preferred to the comforting words of Ministers.

  • Finally, I turn to my noble friend Lord Bridges—a friend of mine of very old standing. I very much hope that I do not prejudice his future when I say that he has conducted the Government’s case with great distinction. But in his winding-up speech he will doubtless argue in a number of ingenious ways, as indeed my noble friend Lord Forsyth has done, that the drafting of this new clause is defective. It would surprise me if he does not advance that argument but I say to your Lordships’ House: ignore that argument. I have carried several Bills and been party to scores of Bills going through Parliament, and the truth is this. When a Minister is weak on principle, that Minister focuses on the drafting.

    The reality is as follows. If Parliament as a whole resolves that as a matter of principle, the ultimate authority to determine the future of this country should rest with Parliament and not the Executive, skilled parliamentary counsel will be instructed to ensure—and ensure very rapidly—that the language of the Bill meets that objective. I ask your Lordships to rest on the long-contested principle that this country’s future should rest with Parliament and not with Ministers. It is in that spirit that I commend this new clause to your Lordships’ House.

  • My Lords, I think it is the occasion for the Labour Benches. I remind the House that the Supreme Court gave us the benefit of its wisdom on constitutional matters in the case of Gina Miller, which we have heard about. In that case, the Supreme Court’s principal conclusion was that primary legislation is required to authorise the UK’s withdrawal from the European Union. I make it clear that this Bill is a notification Bill; it is not an authorisation Bill. It does not authorise withdrawal from the European Union. What it does is to notify other European Union members that we are in a process of negotiation. The withdrawal must come back before this Parliament.

    I also remind the House what the Supreme Court judges said. They said that the reason why this was a matter for Parliament—both the notification and, finally, withdrawal—was because any fundamental change to our laws that inevitably amends or abrogates our individual rights requires the approval of Parliament. That is one of the essential constitutional principles under which our system operates: that anything involving our rights—whether they are to trade with, to live in or to travel to the European Union—we have introduced into domestic law. Because that therefore involves the rights of citizens, Parliament is the place that has to make the decision and approve any changes to that law.

    The concern that I raised in Committee late at night, when most people were no longer here, was that I had heard repeatedly from Ministers that if there was not a deal, or if Parliament decided that the deal was not good enough, we would walk away and that there was therefore authorisation from the people, having taken part in the referendum, to walk away. That flies in the face of what was said by the constitutional court of this country—the Supreme Court, which deals with constitutional issues—because walking away and embarking on an engagement in trade worldwide under the WTO rules also involves an amendment or abrogation of some of the rights that citizens in this country have. It has implications. That is why it is a constitutional matter and why this House has a particular role to play.

  • Perhaps I can remind the noble Baroness of the limits of what the Supreme Court decided. In paragraph 3, it said:

    “It is also worth emphasising that this case has nothing to do with issues such as the wisdom of the decision to withdraw from the European Union, the terms of withdrawal, the timetable or arrangements for withdrawal, or the details of any future relationship with the European Union”.

    There is a distinct limit to what it decided. Does the noble Baroness agree?

  • In reaching that decision, the Supreme Court laid out the principle that the reason why it was engaging with the case at all was not because it had a view on Brexit but because of the constitutional principle. The principle is very straightforward. It is that when it comes to our rights, Parliament makes those decisions. That is why when the process comes to the end and there is a deal on the table it has to be voted upon by Parliament but, if there is no deal, that too becomes an issue. It is not good enough for Ministers of Government to say that we just walk away as though that has no consequences. Walking away also has consequences for the rights of citizens in this country. That is why it is a matter for Parliament. That is why this proposed new clause is so important.

  • The noble Baroness said at the beginning of her remarks that this is a notification Bill, not an authorisation Bill. Will she therefore explain what an authorisation amendment is doing in a notification Bill?

  • At the end of the process, there is going to be a need to come back before Parliament. That has been acknowledged by the Prime Minister and other Ministers and I understand that an undertaking has been given. Like the noble Viscount, Lord Hailsham, I believe that having it in statutory form is the best way for us to know exactly what is on offer, but I have heard repeatedly from Ministers that the option of walking away involves no need to come back before Parliament. I asked the question directly of the Minister, the noble Lord, Lord Bridges, and I have heard it said by other Ministers in Select Committee. All I am saying to this House is that that is why this amendment is so important, even if no negotiation deal comes back before Parliament because no deal means WTO and WTO has implications for citizens of this country with regard to their rights.

  • My Lords, as my noble friend Lord Hailsham—

  • Did the noble Baroness finish? I wanted to intervene on her.

  • I think the noble Lord, Lord Finkelstein, wants to come in on the points that I was making. I had actually more or less completed my speech, but if he wants to raise an issue—

  • Was the court’s judgment not based on the idea that this was authorisation? The court would have not have ruled as it did if it had not assumed that this was not unilaterally revocable. Both sides in the court case, including the noble Lord, Lord Pannick, said that it is not unilaterally revocable, and the court ruled specifically because of that that authorisation is delivered by triggering Article 50. If it had not done so, it would not have ruled as it did; therefore, it is crucial to the understanding that this is authorisation.

  • It is notification of withdrawal; it is not a withdrawal Bill.

  • My Lords, as I was saying, as my noble friend Lord Hailsham, whose father I greatly respected as a colleague of mine in government, has reminded us, the reason we are debating this proposed new clause today is that the noble Lord, Lord Pannick, who moved this amendment, convinced first the High Court and subsequently a majority of the Supreme Court that a Bill is needed and that the Government’s intention to rely on the prerogative will not do. His argument was clear, and I think it will be helpful if I remind the House of it by quoting his words before the High Court:

    “my case is very simple. My case is that notification is the pulling of the trigger and once you have pulled the trigger, the consequence follows. The bullet hits the target. It hits the target on the date specified in Article 50(3). The triggering leads to the consequence, inevitably leads to the consequence, as a matter of law, that the treaties cease to apply”.

    In short, the very act of invoking Article 50 inexorably leads to Brexit two years later. This was the principal basis on which the courts decided that the Government were wrong to rely on the prerogative, yet the proposed new clause appears to say exactly the opposite. It says that there is no inevitability at all. Triggering Article 50 does not “inevitably”—in the own word of the noble Lord, Lord Pannick—lead to Brexit, for the explicit purpose of the proposed new clause is to ensure that even when Article 50 has been invoked, if Parliament disapproves of the outcome of the negotiations it can stop Brexit happening. Indeed, as a number of speakers have pointed out, on the strict interpretation of the proposed new clause, your Lordships’ House alone can prevent Brexit since the approval of both Houses is required. I do not want to go down that avenue because I have not time.

    I have the greatest respect for the noble Lord, Lord Pannick, as an exceedingly clever lawyer who deploys his cleverness with considerable charm. However, is it possible for even him to have his cake and eat it? Might this not be too clever by half? The real mischief—

  • I should like to develop my argument. The real mischief in this proposed new clause lies in subsection (4). As the noble Lord, Lord Pannick, effectively conceded, without subsection 4 there is a possible reconciliation with his original thesis, since without subsection (4), Parliament would be faced simply with the decision of whether to approve the agreement that the Government had putatively reached with the European Union. As the noble and learned Lord, Lord Hope, and one or two others, have already pointed out, the Government have pledged to put this before Parliament when the time comes.

    The Government might, for example, have agreed to pay the Barnier ransom demand which our own European Union Committee has recently confirmed that we are under no legal obligation to pay. In that case, Parliament might have found that unacceptable. However, if, for whatever reason, Parliament refused to approve the agreement that the Government had reached with the EU, that would not prevent Brexit. It would mean simply that we would leave the European Union without an agreement—and, as I explained at Second Reading, that is nothing to be scared of. Far from jumping off a non-existent cliff into the unknown, trading under WTO rules is the very satisfactory basis of most of the trade that we do throughout the world today. I give way.

  • I am grateful. Does the noble Lord accept that at this stage the key question before the House is: who is to be master? Is it Ministers or Parliament?

  • If the noble Lord allows me to develop my argument he will see exactly what the problem with what he is saying is, because no agreement is by far the most likely outcome. As the Prime Minister made clear in her excellent Lancaster House speech and as the subsequent White Paper reiterated, no agreement would be better than a bad agreement. Sadly—and it is sad—a bad agreement is all that is likely to be on offer. However, the mischief of subsection (4) of this proposed new clause is that it would not merely give Parliament the power to reject a bad deal but enable it to prevent Brexit altogether by refusing to allow the UK to leave the European Union without an agreement. This not only is in diametric opposition to the Pannick thesis on which the Bill rests but, more importantly, would be an unconscionable rejection of the referendum result that would drive a far greater wedge between the political class and the British people than the dangerous gulf that already exists.

  • It might be argued that all Parliament would be doing would be instructing the Government to go back to Brussels and accept whatever agreement, however bad, the 27 were prepared to offer. That is clearly unacceptable, and indeed constitutionally improper. The only practical effect of subsection (4) would be to create a political crisis, causing highly damaging uncertainty to business and the economy, which could in practice be resolved only by a dissolution of Parliament and a general election—something the Opposition can always try to achieve, if that is what they wish, without this clause, simply by moving and carrying a vote of no confidence in the Government. This mischievous proposed new clause, masquerading as an assertion of parliamentary sovereignty, deserves to be rejected out of hand.

  • Noble Lords

    Lisvane!

  • My Lords, I am extremely grateful to my noble friend; no doubt she will have her opportunity in a moment. After more than four decades in which I sought to make the most modest of modest contributions to parliamentary effectiveness and reputation, I hope that my credentials as an advocate of parliamentary sovereignty will not be challenged. I am very grateful to my noble friend Lord Pannick not only for his kind words but also for his recasting of Amendment 3. I agree with him that, if this amendment were to be agreed, the means of approval would be in the hands of the Government. So I hope that he and noble Lords will forgive me if I repeat some of the issues that, in that case, the Government should have in mind.

    So far, ministerial language has been in terms of “a vote” and “a Motion”. That rather suggests proceeding by resolution—and, if so, the concerns I expressed in Committee are unallayed. What happens if one House votes one way and the other House votes the other way? Does qualified approval, perhaps with a conditional rider, count as approval? Would it be acceptable in those circumstances to give this House an effective veto over the process?

    If, on the other hand, primary legislation is contemplated, the issue of interpreting some sort of qualified approval, or the terms of approval, remains. Even in the unloved Fixed-term Parliaments Act, specific wording for a Motion of confidence or no confidence was inserted to avoid the possibility of recourse to the courts. In matters of the present gravity, recourse to the courts would be even more unwelcome. My father had a ghastly warning about the dangers of overspecification in legislation. He quoted what was alleged to have been a rule at Heidelberg University, which stated: “No one shall tie anything, whether a nightwatchman or not a nightwatchman, to anything, whether a lightning conductor or not a lightning conductor, at any time, whether or not during a thunderstorm”. I do not ask for that degree of specification—but, if primary legislation is contemplated, the terms of approval need to be considered very carefully indeed.

  • My Lords, I am genuinely torn on how to vote on this amendment and turn to my noble and very able friend the Minister to guide me in this respect. I listened very carefully to all the speakers this afternoon, particularly the noble Baroness, Lady Kennedy, who I think comes at this with the same approach that I do. These amendments seem based to me on a very simple proposition, which is that rights given to British subjects by statute can be removed only by statute.

    Of the two alternatives available, particularly in Amendment 3, which I am tempted and minded to support—a resolution to be passed by both Houses or a Bill to be passed by both Houses—the amendment neatly leaves it to the Government to determine the means to choose. I would like to know—and I seek guidance from the Minister and very powerful arguments against—why it would not be appropriate to include the amendment here on the face of the Bill. I say this because this is the last procedural stage before we embark on the substance. We are told that there will not be just the great repeal Bill but a number of substantive primary pieces of legislation as well as, no doubt, multiple pieces of secondary legislation to repeal some of the acquis that we might wish no longer to apply.

    Why is it important to write it on the face of the Bill? It is for so many reasons: times change; politics change and personalities change. We are being asked to take an awful lot on trust here, both in terms of a commitment from the Government and in terms of a commitment given on the Floor of the House of Commons that Parliament and the Government would hope to follow through. Surely it is only right and proper that it should be put on the face of the Bill.

    I remind the House that we spent about two hours and 30 minutes talking about the rights of EU nationals going forward. If the referendum had been held on the same terms as the European Parliament elections, all the EU nationals living here for the required length of time would have been able to vote. As I understand it from memory, an amendment passed in this House deprived those 1 million EU nationals living in this country of the right to vote. In fact, that 1 million number could have changed the outcome of the referendum overnight.

    I refer to the words of the noble and learned Lord, Lord Hope of Craighead, in summing up on Second Reading. He expressed to the Government, in a helpful way, that the Supreme Court’s decision in Miller went further than just this Bill before us today, which embarks on the negotiation procedure. A majority of the House would not wish to stand in the way of the triggering of the process. By the same token, the noble and learned Lord went on to say, in respect to not writing into the face of the Bill—I do not want to press him too hard, but I think that the noble and learned Lord was saying the same—that,

    “obtaining approval by resolution in Parliament is not the same thing as being given statutory authority”.

    That is why he cautioned the Government against thinking that this Bill before the House today,

    “on its own will give them all the authority they need, or that obtaining approval for an agreement by resolution is the same thing as being given statutory authority to conclude that agreement”.—[Official Report, 20/2/17; col. 23.]

    I will refer also to an article written by five eminent QCs, including three knights, who gave their opinion on the matter and stated:

    “Meaningful Parliamentary decision-making cannot be achieved by Parliament authorising exit from the European Union, two years in advance, on as yet unknown terms. Equally, it cannot be achieved by a single ‘take it or leave it’ vote at the end of the process”.

    The article argues very straightforwardly:

    “The constitutional requirements for a decision by the United Kingdom to leave the European Union include the enactment of primary legislation consenting to give legal effect to the terms of a withdrawal agreement between the United Kingdom and the European Union”.

    Therefore, rather than being a wrecking amendment, I see this amendment as being potentially helpful to the Government, responding to a situation that we found ourselves in, having now lost three to six months through a court case and then an appeal, by writing on to the face of the Bill that Parliament—these two Houses —will have the final say. It will be of the Government’s choosing what the mechanism will be—whether a resolution of both Houses or an Act of Parliament. Otherwise, there will be a complete lack of clarity over what remaining rights already extended to British subjects can continue to be relied on. I will go further and say that, when we come to the great repeal Bill, there will be a complete lack of clarity over the court on which we should rely to make sure that those outstanding rights can be enforced.

  • My Lords, I think we will hear from the noble Baroness, Lady Deech, then from the noble Baroness, Lady Symons, and then from my noble and learned friend Lord Mackay.

  • My Lords, I wish to say a few, brief words about sovereignty and the likely outcome if Parliament disapproves a deal at the end of the negotiations in two years’ time. The sad fact is that because of the construction of Article 50, we will not recover our parliamentary sovereignty in European matters until the whole process is over. If we contemplate what might happen in two years’ time, we see only too clearly that sovereignty lies with Europe. If this House or the other House were to reject the deal, we would end up as puppets in their hands. Can it honestly be imagined that if one or other House, whether through approval or an Act of Parliament, goes back to Europe in just under two years’ time and says, “We don’t like the deal”, the other 27 will say, “Oh dear. Here is a much better one”, or, “Let us, all 27, now agree to extend the negotiation time”? I do not think so.

    The noble Lord, Lord Oates, indicated that he did not trust the Prime Minister. I am sorry to say that I do not trust the other 27 members of the European Union to give us a good deal, or indeed to care very much about what happens to us or our nationals, because their only declared intent since last June has been: “You must be punished. The Union must survive, no matter what the cost. We will not accommodate you, we will not be kind to you”. There is no vision. There is no mission.

  • Can the noble Baroness give us chapter and verse on who said that?

  • My Lords, I read it in the papers every day.

  • Perhaps the noble Baroness would quote to the noble Lord, Lord Lea, exactly what President Hollande said: “There has to be a price. There has to be a threat. There has to be a cost”.

  • Thank you.

    Much of our argument turns on whether Article 50 is revocable or not. The Supreme Court judgment in Miller did not go that far. The judgment was based on the fact that triggering Article 50 would be the no turning back moment at which the two years would start and inevitably run their course. Indeed, I know that there has been a legal opinion from three knights that Article 50 is revocable, but I know from my dealings with lawyers that you can find another three knights who will tell you something quite different. Although I have heard it said that the noble Lord, Lord Kerr, drafted the article, so he knows what it is about, in our system, it is not the draftsman who in the end declares what the article means.

    If parliamentary approval were needed at the end of the deal, what might it look like? Some parts of it might very well deal with European nationals. Only a few days ago, we were expressing our shock and dismay that the position of European nationals might not be taken care of. Would we be throwing them all into disarray in two years’ time if, among probably thousands of pages of deal, there was something about European nationals?

    I am sorry to say that the noble Lord, Lord Pannick, has departed from his usual clarity in legal matters. He has tied himself and the House in knots. On the one hand, he says that we always defer in the end to the Commons. I wonder whether we will hear that this evening or next week if there is a head-on clash between our decision, if we approve the amendment, and what the House of Commons says. On the other hand, he has also said that approval is better than having an Act of Parliament: it leaves it open to the Prime Minister to decide what to do. But with an Act of Parliament expressing what is in the amendment, the Commons would prevail because of the Parliament Act. You cannot really have it both ways. The only other possible outcome at the end is no deal. The two-year shutter comes down and we are off the cliff—that is the general outcome. Others know just as well how difficult that would be.

    Our lack of sovereignty means that if at the end of two years the rest of the European Union does not give us what we want and either House rejects that deal, the European Union will, for sure, not welcome us back with open arms, will not necessarily accept a revocation of Article 50 and not necessarily give us a better deal. That is the reality of the situation. We will have to take what comes our way in two years’ time.

  • Plainly, the amendment requiring a second parliamentary assent is designed to enable Brexit to be blocked in the mistaken belief that the EU will roll over. If this amendment is enacted, it is more likely to lead to no deal at all. In practice, it is unworkable and defies the result of the referendum. The referendum was on a matter of principle, not details. It lies deep with many of those who voted to leave, regardless of the details. They want to separate themselves from the European Union, and it is very unlikely that they will feel differently in two years, especially if the Union deals up a bad deal to the rest of us. I oppose the amendment.

  • My Lords, I do not know what people will feel like in two years’ time. We know that the demographics will have changed and that young people will be coming on to the electoral register and, as we all know, young people have taken a very different view about our leaving the EU to that taken by older people who will no longer be able to vote.

    I have two specific questions to ask the Minister. The noble Lord, Lord Lawson, said that the Supreme Court’s judgment was that Article 50 was irrevocable—a view just reiterated by the noble Baroness, Lady Deech. I thought that the Supreme Court judgment was rather more nuanced than that: that because the parties to the action were prepared to use that as the basis for forming their judgment, they had not tested the arguments on the irrevocability or otherwise of Article 50. So there was a clear statement that they had not tested that argument.

    On Second Reading, I asked the noble Lord what the Government’s views were on that. In a very skilled response at the end of the debate, he said that it was the firm policy of the Government not to turn back having triggered Article 50. The noble Lord knows that that was not the question I asked. We are not asking about the firm policy. What we need to know is the Government’s legal view on the revocability or otherwise of Article 50. That is a crucial question because if the issue does come back to Parliament, we will be in a very different position if it is revocable. I ask the question, and hope that this time I might have the answer.

    My second question is about the position whereby the Government have sought to bypass Parliament, as indeed they did, by saying that the prerogative powers were sufficient to trigger Article 50. It did indeed take private individuals, represented by the noble Lord, Lord Pannick, to go to court to prevent the Government going beyond their powers and bypassing this Parliament. The Government had assumed they had powers by using the prerogative, and the Supreme Court was able to disabuse them of that.

  • Does the noble Baroness accept that the reason the court made that judgment was that both parties had agreed that it was not unilaterally revocable? That is the reason why both parties had to agree, otherwise the court would have ruled differently. It ruled that this was a parliamentary decision of authorisation. That is the reason why it had to come back to Parliament. It would change the law.

  • The point that the Supreme Court made was that it had not tested the point about revocability. I say to the noble Lord, who knows what the outcome would be if it were asked to do that? The political position now is that the Supreme Court has not made that judgment, and it took going to the court to get the views that we have.

    When we get to the end of this whole discussion, I wonder what the Minister will be able to say about our ability to trust the views of Ministers. I am not saying that we do not believe that Ministers really want to come back to Parliament, but the only assurance we will have is putting it in the Bill. The Government do not have good form over this. They foolishly went on to the Supreme Court after the High Court had told them what the judgment should be. We need this in the Bill because the Government have form for bypassing Parliament, and we need to know that that will not happen again.

    We need the best legal checks and balances we can get—not to stop Brexit but to make sure that we obtain the best this country can get from it. That is why we need to vote for this amendment today. It is also why, if the amendment is successful in this House, I hope it goes on to be successful in another place. Britain relies on parliamentary sovereignty and now is the moment for it to be fully asserted by this House—not in six months’ time, not in 18 months’ time, not at the end of the period of negotiation. We have to make sure legally that Britain’s best interests are protected and safeguarded. That is the job of this Parliament. It is our job here today and I urge this House to vote for the amendment.

  • My Lords, I will first take up the point that the noble Baroness has just mentioned about the judgment of the Supreme Court. Naturally, I have studied it with a certain amount of care. Both sides, the Government and the applicant, agreed with the basis that they should treat the Article 50 notification as irrevocable. Lord Justice Reed pointed out clearly that that had not been the subject of a decision by the court but that, from the point of view of the judgment, it did not matter so long as it was possible that it was irrevocable. If that was the case, the danger to Acts of Parliament existed even if it turned out that it might be revocable. If it was possible that it was irrevocable, once it was triggered, these Acts of Parliament came into danger. It was as simple as that. I think we must assume—I am prepared to anyway—that the government lawyers took the view that Article 50 notification was irrevocable because they took the case on that basis. Of course, some doubt about that might have helped them if they thought there was a real argument that it was revocable—the bullet and all the rest of it that the noble Lord, Lord Pannick, talked about in the decision would maybe not have occurred. The Government’s lawyers definitely took the view that it was irrevocable.

    The point tonight is different. The Prime Minister and the Minister in the Commons both gave an undertaking that a Motion would be put before both Houses of Parliament for approval of the final deal and for the way in which we might leave the European Union. They both gave that undertaking but they did not say that the Prime Minister would necessarily be bound by the decision of both Houses.

    The difficulty in this amendment is that it formally requires the approval of both Houses. There is no question—it is as clear as can be. I do not claim to be a prophet, so exactly what will happen after two years I do not know, but I feel absolutely certain that the negotiations will be difficult and that it will be very difficult at this stage to tell what sort of outcome we may get. If we can get such an agreement in relation to economics as the Prime Minister indicated in her speech, that might be very good. On the other hand, some people who know more about it than I do think that may not be likely.

    As I said, I do not know what will happen. The Prime Minister and the Minister have agreed that both Houses of Parliament should have a Motion put before them for approval, but neither said—I believe that may be why they phrased it as they did—that the approval of both Houses would be necessary.

    I want to point out the danger of not getting this right. I see no reason why it should not be put right, if people agree that it is not quite right. The House of Commons should be the prime source of authority on this matter. Your Lordships will remember, if you read the newspapers—I am sure most of us do, although perhaps selectively—the suggestion that this was all a scheme for this House to try to defeat the Brexit vote. I do not want it to be said unnecessarily, in any circumstances, that we give colour to that, because I feel certain that nobody in this House wants to engineer a blockage of the Brexit vote as the Prime Minister goes ahead. I feel sure of that, and I think I am right. Somebody this morning mentioned the word “tribal”. I do not feel myself part of any particular tribe, but I want the matter to be right. If the amendment is sent back to the Commons, I would like it to be correct, so that nobody could suggest that we were trying to create a scheme that might block Brexit, because we refuse our approval and the House of Commons approves it.

  • As I understand the noble and learned Lord’s speech, he is saying that, provided the primacy of the House of Commons is made clear, he would support the amendment. Is that right?

  • I am saying that I think it would then simply incorporate the Prime Minister’s and the Minister’s undertaking.

  • But not proposed new subsection (4).

  • Of course, the bit at the end is a separate matter, and on the whole I do not feel very inclined to get into it. There is the problem that, as was said, Brexit, once initiated, may go out of hand and terminate without any voluntary agreement on the part of the Prime Minister. The amendment does not really deal with that—but I do not see too much harm in the amendment. I cannot foresee exactly what will happen, but I sincerely hope that it is the first two parts of the amendment that will come into play in the end and there will be an agreement that can be put before the Houses of Parliament. Nobody knows—I cannot tell—and we can only hope. But it would be very desirable for any amendment of this kind, going from this House, to recognise the supremacy of the House of Commons.

  • I think my noble friend will find that my noble and learned friend has sat down. There will be an opportunity for him to speak, but I indicated earlier that I thought we should hear from the noble Lord, Lord Kerr, at this stage.

  • I am grateful to the noble Lord. The first of my two quick points is to clarify the issue of irrevocability raised by the noble Lord, Lord Finkelstein—and I am glad that he did so. We discussed the issue extensively at Second Reading and he told his readers in the Times that we did not mention it at all, so I am glad that he is here this time. I also pay tribute to the skill of the Lord, Lord Pannick, both in court and in this House. When he won his case in the High Court—not the Supreme Court—the No. 10 spokesman was asked about revocability and said that,

    “as a matter of firm policy, our notification to withdraw will not be withdrawn”.

    After our extensive debate at Second Reading, the Minister was put on the spot by the noble Baroness, Lady Symons of Vernham Dean, about whether it was revocable or not. The Minister is a very clever man and replied:

    “As a matter of firm policy, our notification will not be withdrawn”.—[Official Report, 21/2/17; col. 320.]

    That is very similar to what was said by the No. 10 spokesman, which is always wise in a Minister. Last Wednesday, in Committee, the same issue of revocability was raised. When the Minister replied to the debate on the amendment, he said that,

    “as a matter of policy we will not withdraw our notice to leave”.—[Official Report, 1/3/17; col. 923.]

    The wording was slightly wrong there, but I am sure they will forgive him.

    Every time the Government say that,

    “as a matter of policy”,

    firm or infirm, they will not withdraw the notification which the Bill authorises, they implicitly confirm that, in law, they could withdraw it—and they could. If you want a definitive source, do not look at me, listen to the President of the European Council, who has said so on the record. If you want a definitive EU legal view, and this would be an EU legal question if it were ever tested, try the present head of the Council’s legal service or the one who advised me when I was writing the wretched thing. Just a point of clarification: it is revocable.

    My second point relates to the discussion of subsection (4) of the new clause proposed in the amendment. The noble Lord, Lord Lawson, detected deep evil in it. What is being said there is that it is for Parliament to decide whether no deal is better than a bad deal and to make a judgment on whether the deal is bad and that the chaos and disruption of leaving with no deal is preferable. I struggle to think of a deal which could be worse than no deal. Last week, the president of CBI said that the worst possible scenario was leaving with no deal. However, that is not the point: the point is about parliamentary sovereignty. The issue of whether no deal is worse than the deal which is available on the table on that day is for Parliament to decide. That is what subsection (4) of the amendment says, and I support it.

  • My Lords, the noble Lord, Lord Kerr, quite rightly—and entertainingly as always—referred to the crucial element of parliamentary sovereignty. We have heard from top lawyers and diplomats and I only offer some thoughts as a run-of-the-mill parliamentarian. I could not possibly vote against parliamentary sovereignty. Voting against an amendment such as this would be like voting against motherhood and apple pie. It is something in which I passionately believe. It was one of the reasons why many people—and I was one of them—were concerned during the course of the European referendum because it seemed incontrovertible that the way in which the European Union had developed involved a steady erosion of parliamentary sovereignty. It would be quite difficult to disagree with this proposition.

    When addressing this amendment, we have to decide what a decision by Parliament actually comprises. I am forced to read the amendment. Proposed subsection (1) refers to,

    “without the approval of both Houses of Parliament”.

    Subsection (3) requires:

    “The prior approval of both Houses of Parliament”,

    Subsection (4) refers to:

    “The prior approval of both Houses of Parliament”.

    With great respect to the weight of legal opinion being offered, to propose this amendment without being clear as to what is involved in the approval of both Houses of Parliament is to leave an ambiguity at its heart. It is hardly necessary to add to what the noble and learned Lord, Lord Mackay, has already said.

    I was concerned about this from the start. I raised it in Committee. There has been an attempt to move towards answering the question, “What happens if the Commons say ‘yes’ and the Lords say ‘no’?”. The solution is certainly not contained within these amendments.

    I made an, admittedly inadequate, attempt with the Public Bill Office to see if there was any way in which I could put down an amendment which would satisfy, or at least address, this problem at the heart of the Bill. If the House will forgive me—as I will conclude shortly afterwards—I will read out the terms of the defunct amendment. It would have said:

    “(5) If, under the provisions of subsections (1), (3) or (4), there is disagreement between the House of Commons and the House of Lords as to whether or not the agreement or decision should be approved, the view of the House of Commons prevails over the view of the House of Lords”.

    That makes an attempt to explain precisely—or, I hope, resolve precisely—the ambiguity at the heart of the Bill.

  • I was following the noble Lord’s argument, and I agree with it in terms of the imprecision and lack of clarity as to what happens if both Houses disagree. Does he agree that there is a further issue in relation to the different procedures of the two Houses? In the House of Commons, the Government control the agenda. We heard from the noble Lord, Lord Pannick, that what happens in this House will be up to the Government. But am I not right in saying that any noble Lord can put down an amendment at any time to disapprove a resolution and this House will vote on it? Surely there cannot be any circumstances in this House in which the Government control what might constitute approval or disapproval. Is this not a further difficulty with the amendment?

  • Yes. I can understand that point. I want to emphasise the central problem, which the noble and learned Lord, Lord Mackay, has identified. I ask the House—or, more specifically, the mover of the amendment—whether something like that, included at Third Reading, would solve the difficulty which I think even he would acknowledge was expressed in the various interventions that he dealt with.

    There is one thing that I can influence to some degree—something which, if not within the control of this House, is within the control of my beloved Labour Party. For as long as I have been in it, it has been absolutely clear about the primacy of the elected House over the unelected House. I say this to my Front Bench and to my very good noble friend Lady Hayter, who will be winding up. Should we pass this amendment as written and, in two years’ time, find ourselves in a situation where there is a clash between the House of Commons and the House of Lords, and if all the normal attempts at agreement and solutions to the differences had been tried, this party, at any rate, would assert clearly that, ultimately, the primacy of the House of Commons must prevail.

  • My Lords, it is a great pleasure to follow the noble Lord, Lord Grocott, and I agree with much of what he said—

  • Noble Lords

    Order!

  • I apologise. A lot of noble Lords want to speak. I have tried to construct a speaking order. I suggest that my noble friend Lord Howard speaks at this stage. I see that the noble Baroness, Lady Jones, also wants to speak. It might be sensible then—

  • Noble Lords

    Baroness Altmann!

  • Yes, indeed. I will let my noble friend Lord Higgins speak next and include my noble friend Lady Altmann in the list to speak later.

  • I am grateful to my noble friend. I long ago came to the painful recognition that many Members of your Lordships’ House think that to serve in this place without having served down the Corridor in the other place is an absolutely enormous advantage. Therefore, it is with some temerity that I seek to draw on my 27 years’ experience in the other place—not as long as my noble friend Lord Heseltine—to make a preliminary observation. At the end of the negotiations, there will be either an agreement or a decision by the Government to leave the European Union without an agreement. Whichever of those scenarios comes about, the other place will have its say. Not only will it have its say, it will have its way. If the agreement that is reached by the Government is unacceptable to a majority of the Members of the House of Commons, they will vote accordingly. If the Government propose to leave the European Union on terms which are unacceptable to a majority of the Members of the House of Commons, they will vote accordingly. They do not need the authority of Mr David Jones to do that. They do not even need the authority of my right honourable friend the Prime Minister to do that, and they certainly do not need this proposed new clause to do that. They do not need any authority to do that. They will have their say. They will have their way. For those of us who believe that parliamentary supremacy rests with the House of Commons, that is the ultimate safeguard.

    I make a couple of observations about the proposed new clause. In the end, the noble Lord, Lord Pannick, admitted—not quite explicitly but in effect—that, in its present form at any rate, it provides a veto for your Lordships’ House. He said that it was extremely unlikely that your Lordships would exercise that veto. In the end, he was obliged to accept a lifeline from my noble friend Lord Hailsham. However, as is so often the case when you examine a lifeline in detail, it proves not to be quite as effective as at first sight it appeared. The lifeline offered by my noble friend was that the Government might enshrine the Motions necessary by virtue of the proposed new clause in an Act of Parliament so that the Parliament Act could be activated. I ask your Lordships to consider that situation. The Government will have agreed the terms on which they are going to leave the European Union. The House of Commons will have approved those terms but this House will have rejected them and we will have to hang around for a year until the Parliament Act can be used to ensure that the House of Commons gets its way. That was suggested by my noble friend Lord Hailsham. Even my noble friend Lord Heseltine acknowledged the need for the minimum of delay. We all want the minimum of delay. The notion that the nation should stand around for a year waiting for the Parliament Act to be invoked for the House of Commons to get its way illustrates how unnecessary this amendment and proposed new clause are.

  • I want to make one other general point about the proposed new clause. If we put the requirement for approval by this House and the other House on the face of the statute, it will become justiciable. I have long ago given up any attempt to anticipate the ingenuity of the arguments that the noble Lord, Lord Pannick, can deploy in the courts—but just think of the potential for arguing that the Motion approved by one House or the other did not quite match up to this or that interpretation of the proposed new clause, which would by then be on the face of the statute.

    The noble Lord, Lord Lisvane, said that he thought further intervention by the courts would be unhelpful. I could not agree more—but that is a sentiment that may not be shared by all your Lordships. I suspect it will not be shared by the noble Lord, Lord Pannick. However, I think it has much to commend it. I do not think we should lightly embark on a course that would run the risk not only of putting one House in conflict with the other, but of putting Parliament in conflict with the courts.

    I agree with what my noble friend Lord Lawson said about Amendment 4. I shall not repeat everything I said last week, but we have still not yet had an answer to the fact that subsection (4) of the proposed new clause in Amendment 3 would facilitate repeated coming and going between Parliament, Government and the European Union. The Government would say, “We haven’t done a deal, and we propose to leave”; then, according to proposed new subsection (4), Parliament could say, “Go back to the table”. That could happen again and again, which would put our Government in an absurd position.

    For the reasons that I have tried to express, the amendment is totally unnecessary. It is also a recipe for conflict between this House and the other place, and between Parliament and the courts. I urge your Lordships to reject it.

  • My Lords, I am sorry, but I did indicate that I was going to call the noble Baroness, Lady Jones. I am trying to compile a speakers list; I hope your Lordships will understand that that is a reasonable way of carrying on, as so many people have indicated to me that they wish to contribute to this debate.

  • My Lords, it is an honour to follow the noble Lord, Lord Howard, with whom I shared a platform during the referendum campaign—but on this matter I am afraid I have to disagree with him. I support Amendment 3. There is a lot of merit in Amendment 4, but it seems that the House is probably going to go for something written by lawyers, because apparently some of us still trust lawyers—which is sometimes a good move.

    I shall be brief and to the point: I am taking a rather simplistic attitude to this whole debate. During the referendum we voted for taking back control. However, taking back control does not mean giving such a momentous decision for the future of the UK to a tiny cohort of politicians. As we have said, the Government and the Prime Minister committed themselves to a vote in both Houses. They must have thought that was an appropriate thing to do. Therefore I see no problem with a commitment from this House.

    People change. Governments change. We cannot be sure that the same people will be in power when this finally happens, so it is important to get a commitment. Parliament has to have scrutiny, and a say in something so incredibly important—a deal that is being thrashed out between the UK and the EU that will affect our future for ever. I also think it is a mockery if the European Parliament gets a vote on this and we do not. That again is not taking back control.

    One of the other commitments made during the referendum was the £350 million to the NHS. I look forward to seeing that as a line in the Budget tomorrow. Quite honestly, that was one of the things that I voted for when I voted leave.

  • My Lords, I sought to intervene earlier far more aggressively than I would ever normally do, simply because I wished to pursue the point made by my noble and learned friend Lord Mackay and the noble Lord, Lord Grocott, which was of considerable tactical importance in relation to this debate. There is widespread agreement that there should be parliamentary approval for the outcome of the negotiations. The Prime Minister herself has made it clear that she believes that should be so, and the noble Lord, Lord Pannick, has sought to incorporate that undertaking in the Bill. Again, I believe that that is the right thing to do.

    The problem, however, is in the drafting of the amendment. In opening the debate, the noble Lord said he realised there were problems because it seemed to give a veto to the House of Lords—that would not be acceptable. Also, he said that it failed to recognise the relationship between the two Houses, whereby, at the end of the day, the House of Commons must be supreme. He suggested that we should agree to the amendment before us and then the House of Commons would sort it out. I think there is a very simple problem with that: people are less likely to vote for his amendment on that basis than would otherwise be the case. Therefore, it may never get to the House of Commons and its Members will not be able to put the matter right.

    As we now stand, we have a very difficult situation as to whether or not we should support the amendment. My inclination is still to do so, subject to what may be said subsequently, because it is important to have the undertaking in the Bill. However, we have to resolve the problem of ensuring that the House of Commons remains supreme. We cannot have a veto on what is being negotiated; it would be wholly inappropriate if the House of Commons took the opposite view.

    One possible solution is to try to draft a manuscript amendment or to amend the Bill at some later stage in the proceedings. I fear that may be very difficult, although perhaps we might try. In any case, we should agree the amendment, but I understand that many people will feel it is defective in the respect I have mentioned. It would be very unfortunate if, as a result of these debates, we do not have anything to ensure that the undertaking given absolutely clearly by the Prime Minister is in the Bill and that there is no uncertainty about the situation in the future.

  • My Lords, I preface my remarks by expressing my belief that speaking in favour of any amendment to the Bill does not amount to trying to frustrate the referendum result or to deny the will of the people. I respect the result, and we are trying to implement it as responsibly as we can in the interests of our great country.

    The referendum was about taking back control and ensuring parliamentary sovereignty. That is vital to safeguard our democracy and protect our national interests. The people want to be able to trust our Parliament to look after their future. But in the context of the Bill, it seems to me that Parliament is in danger of abrogating its responsibility.

    I have heard the arguments to suggest that parliamentary oversight somehow makes it inevitable that the EU will only offer us a bad deal. However, I respectfully disagree. Indeed, I believe that the likelihood is the other way round. If the negotiators and Ministers know that at the end of the day they will have to sell this deal to Parliament, I believe they will be properly incentivised to be more likely to achieve a deal that is acceptable.

    As currently proposed, the Bill will effectively hand responsibility for our future to a group of negotiators and Ministers who apparently countenance with a measure of equanimity the idea that no deal is better than a bad deal. If we enter negotiations with a view that the EU will not give us a good deal and that we will just have to leave the single market, the customs union, Euratom and so many other fundamental parts of our current economic security, then we must surely ask ourselves whether those negotiators will be sufficiently incentivised to actually get a good deal for the country.

    A no-deal scenario was never put to the British people. The White Paper and the referendum campaign have not considered the consequences either. Leaving the customs union, the single market and Euratom are recent decisions with significant implications for people’s jobs, for standards of living, for national security, for the nuclear industry, for Northern Ireland and so much else. Yet the risks have been skirted over, almost as if they do not really matter. They do matter. In normal negotiations, corporate negotiators would reserve the option of taking an offer back to their board; a lawyer would reserve the option of referring back to their client.

  • Will my noble friend explain how what she is saying now squares with what she said at the start of her speech about not challenging the result of the referendum?

  • I am not challenging the result of the referendum. We are here to debate and discuss how best to safeguard the interests of our country and to discuss what might happen at the end of the negotiation, in light of the referendum, to make sure that we have parliamentary sovereignty. That is what this debate and this amendment are about. Why would we deny Parliament, the heart of our democracy, the authority to approve or push for a better deal, rather than accepting no deal without a proper say? This parliamentary route, giving Parliament, not the Executive, a meaningful final vote is my preferred option, not a referendum. Such a safety net, written into statute, would seem to me to be the most responsible course to take as we negotiate our EU exit.

    I believe it is my duty, given the very serious concerns that I have expressed, to ask the other place to reconsider the need for elected MPs to take responsibility for the future of their constituents. I believe that they must have the final say on the Bill and I want to ask them to think again.

  • My Lords, I have listened to this debate with a question that was unanswered at the beginning and, to me, is still unanswered. It is this. Subsections (3) and (4) of the proposed new clause read:

    “The prior approval of both Houses of Parliament shall also be required in relation to an agreement on the future relationship of the United Kingdom”,

    and:

    “The prior approval of both Houses of Parliament shall also be required in relation to any decision by the Prime Minister that the United Kingdom shall leave”.

    Assume that the House of Commons and the House of Lords are in agreement. They say, “We do not approve of the terms of the agreement. We do not approve that the Prime Minister shall decide that we leave without an agreement”. My question is: what then? Is it implicit in this amendment that Parliament may then decide to withdraw the Article 50 notification?

  • My Lords, whether Article 50 notification is revocable or irrevocable is a matter of policy or law. I believe that we could interrupt the process of leaving the EU only by another referendum. I think this is the point that the noble Lord, Lord Lawson, touched upon. In fact, the noble Baroness, Lady Altmann, made the same point at the beginning of her speech. If in two years’ time Parliament were seen to be blocking the departure of the United Kingdom from the European Union without another referendum, there would be a serious political situation in our country. While we have talked about conflicts between the Executive and Parliament and between the Executive and the two Houses, I rather agree with the noble Lord, Lord Grocott, that as it stands it should be the House of Commons that has the decisive vote. There is real potential for conflict here. We decided to have a referendum and its outcome can be reversed only with another referendum, which this morning we decided in a sense that we did not want—I admire the Liberal Democrats, who are consistent on this point and who I noticed have their amendment down for Third Reading. At the end of the day, in two years’ time we could be in a very serious, difficult and sensitive political situation. I am not sure the proposed new clause would help handle that.

  • The Prime Minister and the Minister in the other place have given a solemn and public undertaking that there will be parliamentary approval for whatever is proposed. I think that that can be trusted and I wonder what the advantage is of putting this proposed new clause in the Bill, particularly as its subsection (4) suggests that Parliament would block the Article 50 process without going back to the people. The referendum was won by only 52% to 48%—that is another conflict that we are handling, I accept that. But it seems that we are not facing up to the fundamental fact of the referendum itself.

  • My Lords, not for the first time I wholly agree with the analysis of my noble friend Lord Heseltine, with whom I think I entered the House of Commons on the same day over 50 years ago—I agree with his analysis but I am afraid I do not agree with his conclusion. The amendments have clearly been tabled with great sincerity and I appreciate all their aims and concerns. They are trying to impose statutory precision on a Bill that happens to be going through this House in order to make provision for a very uncertain future and for events that are completely unforeseeable. As my noble friend and others have said, we have absolutely no grasp of where the world or this issue will be in two years’ time.

    Any commentary one looks at from the other side of the channel shows clear uncertainty as to who is taking the lead. There are daily quarrels between national capitals and Brussels, and there is infighting inside the European Commission—the Visegrad four are already talking about a different treaty. This very hour we have a blog saying that Spain and Poland want to join together on a completely different approach to the negotiations from that offered by the European Commission. What will happen is uncertain. The additional point was made by the noble Lord, Lord Kerr, with his usual eloquence, that under certain circumstances—although this is almost inconceivable except under a different Government on this side of the channel—the whole project could be aborted and withdrawn.

    The truth, which my noble friend Lord Howard stated with great frankness and eloquence, is that in the Commons the parliamentary majority can do what it likes. I say “majority” and that is different from “Parliament”, which flows from legal lips as though it were an entity—of course, it is not. Parliament is actually the people controlling the majority; that is, the managers of the parties or coalitions that have a majority in the Commons. That is what comes out if you press the button marked “Parliament”.

    I say to the noble Lord, Lord Taverne, whose speech I greatly enjoyed, and to the noble Lord, Lord Kerr, that I am certainly more Burke than Brezhnev. But I am also a disciple of Karl Popper, who spent a lot of time warning us—as did Isaiah Berlin and others—about the dangers of making things too inevitable and the poverty of determinism. Telling the Commons what to do by statute law about a situation that may be completely different from anything we presently envisage seems a noble but really futile project. The Commons will decide by parliamentary majority. It has not always been able to do so and in past centuries there have, of course, been fights against the royal prerogative. But since Parliament has won that battle, as it did in our history, the parliamentary majority will decide—if its managers can control it, the Whips can keep it in place and it is big enough then it will be the will of Parliament.

    The bundle containing the divorce papers and the mixture of new arrangements will be vastly complex and there will be all sorts of uncompleted aspects. That document will be the work of two years of Ministers slaving away, of vastly difficult negotiations and private deals ensuring mutual equivalence and mutually beneficial arrangements between sectors and industries—and heaven knows what else. If after all that there is a vote in Parliament and the Government lose because the majority moves against them and fails to give its approval, I do not see how there can be any doubt about what will happen. That is a declaration of no confidence. We have a five-year rule for Governments but that would not need to be changed if the no-confidence vote was in ringing terms, as it almost certainly would be. That would mean we would arrive at a general election. That seems so obvious and so certain that I cannot understand those who are talking mysteriously about a world beyond rejection. It is inconceivable that Ministers would be sent back to Brussels saying, “Our Parliament has looked at this and does not like it but we will carry on”—it would not be the same Ministers, it would not be the same Government and it would not be the same deal. It would be a completely different situation, regardless of what is written on any piece of paper and regardless of any statute, however beautifully it had been drafted by all the learned people sitting in this House and however firm it was. In reality, it would make no difference to what would actually happen.

    I do not want to stray beyond the confines of Report but I realise that behind the longing to get this into statute—to pin it down on paper—is a real concern. It is the concern of those who fear that the deal, when it comes back, will not include membership of the single market and of the customs union. For them, that will brand it a bad deal and it will lead a lot of people in the Commons, but I suspect not the majority, to think about voting it down—they will not succeed but they will think about it. I say to my noble friends in this House and particularly to the noble Lord, Lord Kerr, that there is room for considerable doubt as to whether being in or out of the single market as it exists today is really the end of the world. In an ocean of digital change, in which there are vast new supply chains travelling in every direction, which are perforated with low tariffs, tariff wars, and special arrangements and regulations on every side, as well as a completely new pattern of trade, totally different in character from even 10 years ago, there is room for doubt as to whether being outside the single market is really a catastrophe. The chief economist of the Bank of England, Mr Haldane, actually said last week that it does not matter and that over the next three years it is of no material difference to the growth of the British economy whether it is in or out of the single market.

    I put that in as an aside. I appreciate that it moves away from the amendment, but the amendment expresses a genuine fear about being excluded from the single market. All I say is that if you look at the facts and details of what is actually happening, you will see it is very different from what is being said by those who argue that leaving will be a disaster and that we are bound to pay a colossal price. They say that trade will effectively halve because goods will have to travel double the distance but these sort of generalities belong to the past century and to a world that no longer exists.

    The whole idea of sending Ministers back to Brussels to get us back into the single market if the deal arranged takes us out is a fantasy; in reality no such situation could ever arise. It is worthy of an animated cartoon but highly disadvantageous. There is a new pattern emerging—a new world governed by the WTO—which many people feel has all sorts of advantages, which have not been discussed at all by this House.

    For this House to tell the House of Commons what to do two years hence, in a completely different situation from anything we presently envisage, is to make fools of ourselves twice over. If that is what noble Lords opposite want, so be it, but it will have to be without me. My hope remains that we in this House can contribute not division but unity to a very difficult challenge and a major new situation emerging for this country in the near future. Perhaps we cannot deliver the unity in this amendment but we can at least agree on the facts. At present the full facts are not being presented to us.

  • My Lords, I remind noble Lords that it is Report and we do not want Second Reading speeches. It is not appropriate for Members to give Second Reading speeches. I apologise to my noble friend.

  • Noble Lords

    Front Bench!

  • No, I am afraid there are still some more people who have indicated that they want to speak.

  • My Lords, I will make just a couple of simple points because I can see that the House is ready to hear from the Front Benches. I want to pick up on a phrase that my noble friend Lord Hailsham used, although I disagree with him and his amendment. He talked about there being a price to pay. What we have to reflect on as a House is that if we support these amendments, particularly an amendment which gives us power ultimately to overturn the referendum result, there is a price that comes with that, too. We have to decide what is most important to us. Do we want to influence the Prime Minister as she goes into these negotiations, or do we want to say now that we want the power to overturn the referendum result? As I said in Committee, I feel very strongly that among people in both Houses—and policymakers and leading businesspeople outside—there is a lot of expertise and experience that needs to be heard by the Prime Minister and the Government over the next two years and needs to be influential in the negotiation period. I worry that we will start to undermine the right for us to be heard in that way.

    I will say one final thing. The noble Lord, Lord Turner, referred to some of us as tribal party politicians. Somebody else mentioned that this morning. We have to reflect very carefully on what has changed since the referendum and on how we are seen by the electorate. I do not think they see us in party terms in the same way they used to. There are two clear sets of politicians whom people consider and listen to: those they feel understand them, and those they feel are against them. I know that most of those who are participating in these debates and working very hard to get the best result for this Brexit deal are not against the people, but we need to understand that they think we are. We have to reflect on what it is we need to do differently. That is why I caution against supporting these amendments which give Parliament power—not just this House, not just the other House, but Parliament. I urge noble Lords to really reflect on that.

  • Does the noble Baroness agree with me that we should not ditch the principles of this House in order to please or pander to public opinion?

  • My Lords, we will hear from the noble Lord, Lord Naseby, and then from the noble Lord, Lord Tugendhat. Then, unless anybody else wishes to speak, we will move on to the Front Benches to conclude this debate.

  • My Lords, I shall be brief. I concur with what my noble friend has just said. We forget the effect this is having on the ordinary people outside. They knew what they were voting about when they voted at the referendum. Both individuals and businesses were fed up with the way that restrictions were put on their lives and regulations imposed. We have to recognise that fact.

    It was my privilege in the other place to be Chairman of Ways and Means. There were 500 amendments to the Maastricht Bill. Many more were chucked out. The ones that were not successful were thrown out because they were out of order. They were wrecking amendments. They were defective. I find it quite extraordinary that your Lordships’ House is spending several hours on what is basically a defective amendment. There are better ways. If the noble Lord, Lord Pannick, is not capable of tabling an amendment that is in order, so be it, but he is a highly creative lawyer and there are other lawyers on the Liberal Benches who perhaps can produce an amendment that is not defective, in which case this House should rightly debate it. But as it stands, this amendment is defective in all four elements. Noble Lords should bear in mind that it is not wise for our House to vote on amendments which have huge implications and are defective. It would be much more sensible to take it back and maybe on another occasion find some means to move forward.

    Ultimately, I trust our Prime Minister. I trust the right honourable David Davis to negotiate well. I trust them to do their very best for the ordinary people who have voted for it all. Frankly, what we are doing this afternoon—if we are doing anything—is undermining the public’s confidence in this House. Confidence is a very delicate flower and it affects not just us here or the public; it affects all the nation, all the businesses, all commerce, and we should not be undermining that confidence. I will certainly not be voting for the amendment.

  • My Lords, as the House knows, I speak as one who very much regrets the result of the referendum but who now feels that we must put it behind us and work to create the best possible relationship we can with the European Union. I feel that this amendment muddies the waters. I remind the House of the words of that very wise woman, George Eliot, who said:

    “Among all forms of mistake, prophecy is the most gratuitous”.

    The amendment goes down the road of prophecy. We can have no idea how the negotiations are going to unfold. Personally, I feel more optimistic about them than some people but we can have no idea how they are going to unfold or what the parliamentary situation or the situation in the European Union or anything else will be in two years’ time.

    We can be certain of only one thing, and that was the point made by my noble friend Lord Howard. Generally speaking, my noble friend and I disagree on matters relating to Europe but he is quite right that the Government will stand or fall by the way in which they conduct these negotiations. Whether or not there is a deal, the House of Commons will pass judgment on the Government’s performance. It will either support the Government or reject them but either way, its will will prevail. That is a very simple matter. The amendment would put in place a complicated structure which would make it very much more difficult for the House of Commons to assert its authority. I quite understand that the purpose of the amendment is to enhance the authority of Parliament but its effect would be to diminish the capacity of the House of Commons to hold the Government to account. For that reason, I hope very much that the House will reject it.

  • Noble Lords

    Front Bench.

  • I think I made it clear, and the House has certainly made it clear, that is it time for the Front-Bench speakers.

  • My Lords, we have gone via all kinds of highways, by-ways, Aunt Sallies and red herrings—mixing my metaphors, no doubt—but the central issue of this amendment is, in the words of my noble friend Lord Lester: who is the master, Ministers or Parliament? The noble Viscount, Lord Hailsham, insisted that this was about taking back control for Parliament. It should not be the taking back of control for the Executive: Parliament should be in charge and in the driving seat.

    The various criticisms of the amendment seem to me to be more properly directed at the Prime Minister’s assurance in the White Paper because—I think that the noble Lord, Lord Pannick, originally used this phrase—it gives the Prime Minister what she asked for. The noble Lord, Lord Hill of Oareford, said that it adds to the complexity and the noble Lord, Lord Tugendhat, said that it made it more complicated and muddied the waters. Well then, why did the Prime Minister pledge approval by both Houses of Parliament? As the noble Lord, Lord Cormack, and I think the noble Baroness, Lady McIntosh, said, this would put an assurance—an undertaking given by the Prime Minister—into a statutory obligation, and it is wise and sensible so to do.

    There is no basis whatever for the assertion, made variously by the noble Lords, Lord Lawson and Lord Forsyth, and the most reverend Primate the Archbishop of York that it would give this House a veto. Given that the Prime Minister offered to give approval by both Houses of Parliament, presumably she knows how that would work and has shared it with the Government. It is for the Government to deal with that process, which could, as other noble Lords have mentioned, be avoided if there was primary legislation because then the rules would be clear.

    The noble Baroness, Lady Stowell, counselled against an amendment that gives Parliament power, which I found a strange piece of advice. Surely Parliament has the right to such a power as we possess under the constitution, but it seems that it is not normal to have parliamentary power in the kind of parallel universe that Brexit has created. The amendment does not weaken the Government’s bargaining position. The statement, “I’ve got to get it past my legislators”, is perfectly good enough for a US president or EU negotiators. It should be more than good enough for the British Parliament.

    The noble Lord, Lord Hill, said that our EU partners read our debates. Yes, they may well do, and they will in this case, but they know that we in this Parliament want really substantial content in a future relationship. We might even stiffen the Government’s backbone in the negotiations. I agree with the noble Baroness, Lady Symons of Vernham Dean, that far from being in conflict, getting the best deal and parliamentary sovereignty go hand in hand.

    Finally, Brexiteers seem to claim that this is a wicked plot by remainers but, in fact, some of them seem to find Parliament an inconvenient obstacle to their dream of crashing out of the EU altogether. They want the Government to be able to action no deal; they do not want Parliament to be able to say, “Hang on—is that actually a good idea?”. That is why this amendment is extremely valid.

  • My Lords, this afternoon we have heard a really compelling case for quite a simple demand: the right of Parliament, rather than government, to authorise the arrangements whereby the Article 50 negotiations conclude. Indeed, probably no additional words are needed to strengthen the case made by the noble Lord, Lord Pannick, or many of the others who have spoken. I will not mention them all but the House will forgive me if I mention my noble friends Lady Kennedy of The Shaws and Lady Symons and the noble Baronesses, Lady Altmann, Lady McIntosh and Lady Ludford. What do they have in common? So I must also mention the noble Baroness, Lady Stowell, although sadly she was not able to support the case.

    Essentially, Amendment 3 is about implementing the Supreme Court’s view that withdrawal would require parliamentary authorisation. The argument is straightforward. As the noble Lord, Lord Heseltine, said, it would secure in law the Government’s commitment that Parliament is the ultimate decider. Very shortly, maybe even next week, the Prime Minister will trigger Article 50 of the treaty. But neither that treaty nor any UK law states how the arrangements made by our Government should be made into law. What is written in the treaty—in EU law, in other words—is that the final agreement will go to the Council and to the European Parliament, so it is mandatory for that Parliament to give its consent but there is no similar requirement for this Parliament to give its consent.

    The Prime Minister has said that she will allow a vote in both Houses and the noble Lord, Lord Forsyth, quoted Mr Jones saying that that was the intent. That, to me, is not a very firm commitment, no matter how sincerely it was given. Indeed, when the Minister said in Committee that the Government’s oral,

    “commitment mirrors the powers of the European Parliament”,—[Official Report, 1/3/17; col. 923.]

    he was not exactly right because its power is written in law. All we are asking is for an equal legislative requirement for the exit deal to come to this Parliament. It is basically about the Crown’s prerogative against Parliament’s.

    I turn to the West Lothian question—no, not that but the Grocott question. We will have to call it the Grocott question as he no longer has a constituency. This was raised by the noble and learned Lord, Lord Mackay. It is true that whether we look at the undertaking given by the Prime Minister or at this amendment, there would be a problem if the House of Commons were to vote one way and your Lordships’ House another. I hope that will not be the case for lots of reasons. Particularly, I hope that by then not just the country but Parliament will have come together, and that we are of one view. But I make it clear from these Benches that if that were to be the outcome, we are absolutely clear that ultimately the will of the Commons must prevail.

    Furthermore, if that is the only argument given against this amendment, there are two ways of answering it. One is that we do a bit of hurried work this evening to table an amendment and, if the Government were willing to accept it, that might be the easiest way. Keeping all my friends here late into the night, however, may not be the best way of achieving that end. We would not want to risk voting down the idea of Commons supremacy just because, very sensibly, everyone was back in their beds. The real issue is to get this principle into the Bill and down the road into the Commons. On behalf of the Opposition, I say that if that is the only point of dispute between us, given that we want the supremacy to be down there rather than here, we will happily work with the Government on the form of words to make that absolutely crystal clear.

  • Bearing in mind the emphasis the noble Baroness has quite rightly put on the two Houses coming together, would it really be intrinsically so nerve racking, fearful and awesome for the Commons, for once, to accept a Lords amendment such as this?

  • The Commons should certainly accept this amendment, albeit I am happy with the tweak to make certain the supremacy of the Commons. The most important thing is to get this amendment in the Bill so that we are absolutely clear about that.

    It is so simple. Whatever the outcome of the negotiations with the EU 27, it is with Parliament, not simply with the Government, that authority lies, deal or no deal. I am afraid I did not follow the Minister’s response on this last week in Committee, questioning what would happen if the EU terminates the talks and refuses to extend the negotiations. He asked: what then? It is pretty simple: the Government come back to Parliament.

    Stranger still than that is the briefing coming out of No. 10, with advisers arguing that giving legislators the power to veto the final Brexit deal and send the Premier back to the negotiating table would undermine her and limit the possibility of a good deal and, indeed, might even push the EU into giving a bad Brexit deal, incentivising it, it seems,

    “in the hope it stops us leaving”.

    That was what Downing Street apparently told the Financial Times, and I always believe the Financial Times.

    I again remind the House that it was Mrs May who said that the deal would be put to a vote in both Houses, so all this is real nonsense. The only issue is whether it is an undertaking or in the Bill. All we are doing in this amendment is putting her pledge, which I am sure was absolutely sincerely given—I do not question that—in the Bill. It is hardly starting a revolution. It is certainly not upending the referendum, and any such arguments are in bad faith because we are trying to put the Prime Minister’s undertaking in the Bill. We do not want the Government’s hand to be forced by the courts. We want the vote to be clearly in the Bill, ideally with the Government’s blessing, without even the need for us to divide. They need to provide certainty at this stage so that we are not back having this debate in 18 months’ time. The amendment is about authorising Parliament. It is to put wheels on the outcome of the referendum.

  • My Lords, this debate has shown this House at its very best, and I thank all noble Lords who have spoken. Forty-four, I think, hours of debate on these 137 words show how sprightly your Lordships are.

    Before I discuss the amendments, I shall briefly set out three core principles governing our approach to this country’s withdrawal from the European Union. First, the Government are determined to honour and deliver on the result of the referendum: the United Kingdom is going to leave the European Union. Secondly, everything we do will be determined by our national interest, and we shall do nothing to undermine it. Thirdly, parliamentary sovereignty is key. Parliament will have a role in scrutinising the Government throughout the negotiations and in making decisions, a point to which I will return.

    Given this, I turn now to the rationale and motives behind the amendments tabled by my noble friend Lord Cormack, the noble Baroness, Lady Hayter, and the noble Lord, Lord Pannick. One basic intent is that the Government should be legally bound to deliver on their commitment to give Parliament a vote on the agreement. That government commitment is crystal clear, and I shall repeat it: the commitment is to bring forward a Motion on the final agreement to be approved by both Houses of Parliament before it is concluded. We expect and intend that this will happen before the European Parliament debates and votes on the final agreement.

    The need for my noble friend Lord Cormack’s amendment, and the first three proposed new subsections of the amendment tabled by the noble Baroness, Lady Hayter, and the noble Lord, Lord Pannick, really comes down to a judgment about whether Ministers and the Government can be trusted and to considering the consequences if the Government were not to deliver on this commitment. All I can say is that of course we will honour our promise and Parliament will hold the Government to account for doing so. Let me go further and echo a point very well made by my noble friend Lord Howard: at any point throughout this process, Parliament will be able to express its view. Given this, the other place was happy with this state of affairs. It considered and rejected similar amendments.

    Furthermore, Parliament will not be providing scrutiny in the dark. After all, this Government have committed to keeping the UK Parliament at least as well informed as the European Parliament as negotiations progress. The Government will continue to be accountable to Parliament via regular Statements—which I so enjoy—debates and Select Committee appearances. Crucially, Parliament’s role will not just be one of scrutiny. It will make decisions and shape the legislation required to give effect to our withdrawal from the European Union: the great repeal Bill to repeal the ECA and the legislation that will be required for significant policy changes, such as on immigration and customs. With the greatest of respect to my noble friend Lord Cormack and the noble Baroness, Lady Hayter, any amendment that attempts to transcribe the Government’s commitment into legislation is unnecessary. More than being unnecessary, an amendment that sought to put this commitment in the Bill could have unintended consequences and create, as has been said, a lucrative field day for lawyers. I do not want to single out any particular lawyer, but I have one in mind. As the noble Lord, Lord Lisvane, put it so well in Committee,

    “regulating parliamentary proceedings by statute ... generally ends in some sort of tears”.—[Official Report, 1/3/17; col. 920.]

    Other noble Lords have asked whether someone might argue that we need an Act of Parliament to authorise our exit from the European Union and whether the Bill is sufficient for our withdrawal. The requirements of the Miller judgment are entirely fulfilled by the Bill. The Supreme Court ruled that because withdrawal from the EU involves removing a source of domestic law in the UK, and because of the far-reaching effects of the European Communities Act, the authority of primary legislation is needed before the Government can decide to give notice under Article 50. The Supreme Court did not rule that anything further is required to satisfy our constitutional requirements.

    Let me now turn to subsection (4) of the new clause proposed by Amendment 3, which was tabled by the noble Baroness, Lady Hayter. I have to say there is something about Labour and Clause 4, but we will put that to one side. The motive behind this subsection was summarised by the noble Lord, Lord Pannick, in Committee and he repeated it today. He said:

    “Parliament should decide whether we ?leave the EU with no agreement or whether we leave the EU with whatever agreement is being offered to us by the EU that the Government think is unacceptable”.—[Official Report, 1/3/17; col. 907-8.]

    As he said, proposed new subsection (4) goes beyond what the Government have committed to in the other place and there are several problems with it. The first concerns the Government’s role as negotiator and one of my first principles, which is protecting our national interest. When considering this amendment, we must ask ourselves whether it will strengthen or weaken the Government’s hand at the negotiating table. Remember the wise words of this House’s Select Committee:

    “The Government will conduct the negotiations on behalf of the United Kingdom, and, like any negotiator, it will need room to manoeuvre if it is to secure a good outcome”.

    Let us not forget the Motion passed by the other place that nothing should be done to undermine the negotiating position of the Government. This proposed new subsection in this amendment would do just that—

  • Let me continue please. Denying the Prime Minister the ability to walk away from the negotiating table, as proposed new subsection (4) would do, would only incentivise the European Union to offer us a bad deal. The European Union is bound to see that there are a number of people in Parliament who think that any deal is better than no deal. We heard some noble Lords argue just now that to go to WTO terms would be bad for Britain. Therefore, this amendment simply makes the negotiations much harder from day one for the Prime Minister, since it increases the incentive for the European Union to offer nothing but a bad deal.

    Some have argued that the proposed clause would strengthen the Government’s hand. They say that this is like a CEO saying, “My board will not agree to that deal”. However, this analogy is not correct in this case. Most boards would say, “We want to do a deal, but not at any price”. In this case, a number of parliamentarians are saying, “Any deal is better than no deal”. This approach would therefore weaken the Government’s position.

    However, that is not the only problem with this amendment. The amendment is clear—

  • Forgive me. The amendment is clear on one thing, and one thing only: namely, that if Parliament agrees with the Prime Minister that no deal is better than the terms on offer, the United Kingdom will leave the European Union without a deal. However, it is unclear—totally unclear—what happens if the House says no to walking away. As the noble and learned Lord, Lord Phillips of Worth Matravers, and my noble friend Lord Forsyth asked, what path must the Prime Minister then take? Is she to accept the terms on offer? Is she being told to secure a better deal—and, if so, what would happen if that cannot be achieved before the end of the two-year period? Alternatively, in the silence of the amendment on this matter, is she to find a means to remain a member of the European Union?

    We do not know the answer to any of these questions. My noble friend Lord Forsyth was entirely right to highlight this omission. The Government cannot possibly accept an amendment that is so unclear on an issue of this importance: what the Prime Minister is to do if Parliament votes against leaving with no agreement.

    With regard to that risk, let us remember the first principle that I stated: the Government are intent on delivering on the result of the referendum as a matter of firm policy. I almost turn to the noble Lord, Lord Kerr, to repeat the words after me. As a matter of firm policy, a notification under Article 50 will not be revoked. Therefore, for the Government, any question of whether notification under Article 50 is legally reversible is irrelevant. The parliamentary vote that we have promised will be very meaningful: we will leave with a deal or we will leave without a deal. That is the choice on offer. However, the choice offered by this amendment by proposed subsection (4), is unclear.

    I will end by repeating the first line of the White Paper:

    “We do not approach these negotiations expecting failure, but anticipating success”.

    Our clear intent, as I said, is to negotiate a new partnership with the European Union that will enable us and Europe to continue to trade freely together and to co-operate and collaborate where it is in our interests. Parliament will decide on whether to accept or reject the agreement. The purpose of this simple Bill is to deliver on the result of the referendum and to leave the EU. These amendments are unnecessary. They are damaging to our national interest, they would create uncertainty and they may be used by some to block the wish of the British people to leave the European Union. For these reasons, I hope that the noble Lord will withdraw his amendment.

  • My Lords, I am grateful to all noble Lords who have contributed to this very full debate. I am particularly grateful to the Minister. The whole House recognises the skill, expertise and indeed patience with which he has piloted this Bill through the House. He will need all those qualities over the next two years. I am sure that the whole House wishes him the best of luck.

    The essence of this amendment is clear. It has been clear from the start. It simply seeks to ensure that Parliament, not Ministers, has control over the terms of our withdrawal at the end of the negotiating process. I find it disappointing that those who most loudly asserted the importance of the sovereignty of Parliament during the referendum campaign are now so alarmed by the prospect of the sovereignty of Parliament at the end of the process.

  • No, we have had a full debate. The Minister says that an undertaking has been given on proposed subsections (1) to (3) and therefore that this amendment is not needed. On a matter of this importance, an undertaking is no substitute for a commitment in legislation. On proposed subsection (4), it surely must be for Parliament, not Ministers, to decide whether we leave on no terms or on the terms that have been offered.

    The Minister repeated that the approval of both Houses of Parliament will be needed and in no part of the argument advanced by the Minister in his winding-up speech did he express any concern about the primacy of the House of Commons not being recognised by this amendment. If the Government do believe that that is a problem—and if we pass this amendment—the Government will be perfectly able to put a revised amendment before the other place next week.

    Your Lordships have heard the arguments. It is now time to test the opinion of the House.

  • Division 2

    7 March 2017

    Division on Amendment 3

    Content: 366
    Not Content: 268

    Amendment 3 agreed.

    View Details

    Amendment 4 not moved.

    Amendment 5

    Moved by

  • 5: After Clause 1, insert the following new Clause—

    “Maintenance of citizenship rights set out in the Belfast Agreement

    Before a notification can be given under section 1(1), the Prime Minister must give an undertaking to negotiate under the process set out in Article 50 to support the right of Northern Irish people to claim Irish citizenship, as set out in the Belfast Agreement.”

  • My Lords, Amendment 5 is in my name and that of my noble friend Lord Murphy of Torfaen, who was my predecessor as Secretary of State for Northern Ireland. I reassure your Lordships that this is more of a probing amendment, and I certainly do not intend to even consider dividing on it. That should be a relief.

    The Belfast/Good Friday agreement of 1998, endorsed by a referendum in Northern Ireland, included the rights of people who were born in Northern Ireland to choose to be Irish or British, or to choose to be both. Some choose to exercise, exclusively, one of them. Indeed, a British citizen whose parents were born in Ireland could—as many have done since the referendum—apply for an Irish passport without giving up their British citizenship, because British citizens are also allowed to hold dual citizenship. This means that you do not have to renounce your British citizenship if you apply for an Irish passport.

    However, for those who choose to be both British and Irish or just Irish, will they also be citizens of the European Union as they are now? I presume that they would: the Minister will, I hope, confirm that Irish citizenship automatically confers EU citizenship rights, so that right to be a citizen of the European Union would remain. Can we assume that the EU would not object to EU citizen status for Irish citizens, not only those living in the Republic, but also those living in Northern Ireland, in what will be, after Brexit, part of a non-member state, the United Kingdom? Will those born in Northern Ireland claiming Irish citizenship remain EU citizens, albeit living outside the EU?

    Can we assume that the position would be analogous to someone being able to apply for dual French and British citizenship—for example, if they were British, but had French parents? As long as France remained in the European Union, the French citizenship would confer the right to EU citizenship by extension; in the case of Northern Ireland, however, it will apply to a whole society—Northern Ireland’s—and not just individuals claiming European citizenship through relatives. Can the Minister give a guarantee that this right is maintained for people from Northern Ireland? After all, a common EU identity has helped both nationalists and unionists to focus on what they have in common rather than what has, for centuries, divided them. Irish citizenship may of course also be available for those with grandparents who were born on the island of Ireland, which includes Northern Ireland.

    I note the report of the House of Lords European Union Committee, which stated on page 32:

    “We also considered the impact of Brexit on the current reciprocal rights for UK and Irish citizens to live and work in each other’s countries. Such rights are underpinned in domestic law by the treatment of Irish nationals as non-foreigners under the Ireland Act 1949, and the acknowledgement of their special status in subsequent legislation including the Immigration Act 1971, as well as by the provisions of the British Nationality Act 1981 ... In addition, under the terms of the Belfast/Good Friday Agreement, the people of Northern Ireland have the right to identify as British, Irish or both, and to claim citizenship accordingly. Those who claim Irish citizenship would, by extension, be able to claim EU citizenship”.

    Last week, I raised the thorny issue of the border in the context of Brexit. Nationalist and above all republican buy-in to the peace process has been cemented by an open border, as it normalises relations between both parts of the island. For them, it is iconic; and for unionists, either doing business or going about their daily lives, it is also extremely valuable. Similarly, the right to be Irish has been for nationalists and republicans a key part of the Northern Ireland peace process. Furthermore, do the Government agree that it is vital to retain and guarantee that right, not just for those who currently enjoy it but for future generations? Categorical reassurances on all of these are especially important after, first, a collapse of the power-sharing Executive into an election, and then a seismic result in which for the first time since 1922, unionists do not have a majority in the local legislature. Is there hope that two charismatic new women leaders, Sinn Fein’s Michelle O’Neill and Alliance’s Naomi Long, can broker common ground with the DUP’s leader Arlene Foster to rescue devolved government?

    Meanwhile, the issue of how to deal with Northern Ireland’s troubled and tangled past remains toxic. Long-retired British soldiers are being prosecuted, provoking outrage among both their families and unionists who perceive it as an unjustified focus on the state’s role in the conflict. “What about prosecutions of former IRA assassins?”, is their question? Both magnanimity and mutual respect is needed, otherwise Northern Ireland will get completely bogged down in its gruesome past, instead of properly supporting victims and building a new future.

    To conclude, I ask that the Minister gives a proper and full explanation and guarantee about the entitlement to Irish and therefore European citizenship of people from Northern Ireland. The EU has in the past been very supportive in recognising Northern Ireland’s unique status, and it will almost certainly have to be supportive in the future.

  • My Lords, I am very pleased to follow my noble colleague and fellow former Secretary of State for Northern Ireland, Lord Hain, in support of the amendment. I merely point out that I am the third former Secretary of State from these Benches to have supported the sentiments of the amendment, as my noble friend Lord Murphy also spoke on the matter last week.

    I do not intend to address the amendment in such detail as my noble colleague Lord Hain; I will confine my remarks to a focus on three or four strategic issues of vital importance. We have spent a great deal of time thinking and worrying—correctly—about the implications of Brexit for Scotland and, in my view, not nearly enough time thinking about the implications not only for Northern Ireland but for the whole of Ireland and a relationship which we have built over the past 20 years, in contrast to centuries prior to that of animosity and antagonism.

  • I want to make just three or four points which I hope that Ministers will convey to their colleagues, in the spirit of my noble colleague. First, if the whole question of immigration is so central to the Government’s view of Brexit—and, they imply, the public’s view—we ought to be careful to pay sufficient attention to the fact that the border between Europe and the United Kingdom will be across the border between Northern Ireland and southern Ireland. The Government say to us: “But there will not be a hard border. We have no intention of bringing back a hard border”—by which they mean noticing who passes from the south to the north on the island of Ireland. I put it to the Government that their own logic suggests that if they have no way of telling who is moving from the Republic of Ireland and Northern Ireland, it is really difficult for them to assure the British people that they somehow have control of immigration. I hope that the Minister will be able to tell us how he squares that particular circle.

    That is not just a matter of control over the numbers of immigration, of course—it is also a question of security. If we are to have this dreadfully soft border between Europe, in particular, the Schengen area of Europe—of which, I accept, the Republic of Ireland is not a member—we must almost by definition enhance the security threat compared to the pre-existing position.

    Immigration is also of extreme importance to Northern Ireland’s economy and industry. As we know, the Province came through an extremely difficult period of 30 years—actually, in some ways, since 1168, since we first arrived on that island having run out of land on the mainland of England and sailed into the estuary at Wexford and, with 400 soldiers, declared: “It will be all over in a month”. We have had a long history of conflict and war there. In the past 10 to 15 years, Northern Ireland has prospered. It is now completely different from what it was, largely by reason of the development of the economy and the introduction of equality in the Province of Ulster. However, many of those industries are entirely dependent on bringing the best brains of Europe to Northern Ireland—something that did not happen for decades. If we are not very careful, we will be in the position not where the best brains of Europe come to Northern Ireland, but where Northern Ireland companies are moving 50 or 100 miles south of the border, into southern Ireland. That will do untold damage to the economy of Northern Ireland.

    The second question is fiscal differences. It is easy to say that we will have a soft border, but if you have vast variation in taxation in the north compared with the south, there will be a very profitable industry in bringing goods into the north and making a lot of money out of them. It may surprise Ministers, but that is how a lot of the terrorism in Northern Ireland was funded. I will not go into detail on that but merely say that, anecdotally, it was a very good idea to own a couple of fields that straddled the border. Anecdotally, it is said that some of the people who did so parked oil tankers at the bottom of their field at dusk, but by daybreak those tankers had mysteriously moved to the top of the field, thus causing a great deal of surplus because of the taxation differences between the north and the south. That problem—smuggling—will arise again, and as I said, industry is moving south.

    Finally, my noble friend referred to the Good Friday agreement. I will also call it the Belfast agreement. As the Minister knows, there are two names for many things in Northern Ireland, and if you use the wrong name you are accused of having a prejudice one way or the other—so there is Derry and Londonderry. The Belfast agreement and the Good Friday agreement have to be encompassed within the same phraseology to prove neutrality. But whatever you call that agreement, it was historic. My worry is that we will create the perception that we are abandoning the rights and liberties that could be guaranteed by recourse to the European Parliament. That, I think, is arguable. I do not believe that that will happen. This is such an entrenched, embedded and historic agreement that those rights will be maintained. Nevertheless, that perception will grow.

    More importantly, although it was never articulated in explicit terms, the fact is that the all-Ireland dimension of the Good Friday/Belfast agreement was absolutely essential in ensuring that it brought all sides into it—nationalist, republican, unionist and loyalist. So, while Northern Ireland stood as part of the United Kingdom, the solution to the problem was to encompass the all-Ireland dimension. That all-Ireland dimension was underpinned by our dual membership—both sovereign countries’ membership—of the European Union. Therefore, the divorce of the European Union and the United Kingdom raises a very serious issue for Ministers, not just in the legal niceties but in the underlying atmospherics and the all-Ireland dimension.

    My noble friend has made it plain that he does not intend to push this to a vote, and I am glad about that. The amendment is in the spirit in which the Good Friday agreement was conducted—which is all parties, on all sides, in all parts of this island as well as all parts of the island of Ireland, advising each other as we see fit on the best way to avoid big traps and to ensure the prosperity of Northern Ireland and of the Good Friday and Belfast agreement.

  • My Lords, I am very grateful to the noble Lord, Lord Hain, for tabling this amendment although I think that things may not be quite as difficult as he imagines. For many of us—I declare an interest here—our right to Irish citizenship is not contingent on the Belfast agreement. It goes back much further to the establishment of the common travel area. In order to set my own mind at rest I checked with the Irish embassy after the Brexit vote to make sure of my own status. I was born in County Antrim during the war years and the answer was, “You are a citizen. You have birthright”. That did not continue indefinitely but many of us in the north have citizenship by virtue of being born, I think, when there was still a territorial claim to the entire island. I see the noble Lord, Lord Empey, nodding. That is very important to us. The numbers we are talking about are rather different from the suggestion that this is a Belfast agreement creation.

    However, the underlying problems are every bit as severe as noble Lords have suggested. There are three. One is obviously the movement of people. I know that many in the Conservative Party think that ID cards are a no-no, but many noble Lords carry mobile phones which constantly give away far more about their identity. We should grow up and realise that in the present age identity and identification is absolutely routine. We need to get it right and enable people to travel. However, the issue is not only to identify the persons who have, under whatever dispensation we reach, no right to cross into the UK. I am afraid that this duty to identify ourselves would fall on all of us—probably when we do crucial things, such as register with a GP’s surgery, start a company or buy a property, and not merely when we travel. That topic really needs to be explored in full.

    The second topic, which I believe is the most awkward, is the question of tariffs. Of course it depends on the negotiation that we have been talking about at some length today—what sort of issue that has to be, and how much of it can be electronic—but make no mistake: the economies are interwoven, and it cannot be thought that we will have a long queue at 260 border crossings across 300 miles. That is not a solution.

    Thirdly, and I think this is a neglected but important topic, we may expect in the event of a negotiation that the agricultural support systems north and south of the Irish border will diverge. That creates new incentives to do something that has long been done—about which amusing stories can be told, because it is not only oil tankers that were put into fields but, of course, beasts. It is extraordinarily important that we address issues of biosecurity very early on in the negotiations. The economies of both the Republic and the north are highly integrated in some respects, particularly dairy, and it is very important that those supply lines can be maintained without any risk to biosecurity. Of course, it is not just the looming possibility of foot and mouth but also other horrible diseases that animals get, such as swine flu and Asian flu. You name it, it is possible. I hope that we can address that one soon.

  • My Lords, it is an opportunity, because of the speech of the noble Lord, Lord Hain, to once again concentrate our minds on an aspect of our long debates on the EU and Brexit, and to realise the significance of a cameo within the bigger cameo. It is a question not just of addressing the issue of the United Kingdom and the EU; within the United Kingdom is a border that will become the frontier between the United Kingdom and the EU.

    The border, which is a part of folklore as well as part of the political story of Ireland, is much more important, as I said at Second Reading, than a line on a map. It represents something in people’s minds, aspirations and memories of the past. I believe that the value of what the noble Lord, Lord Hain, has said to us this evening is this: the border represents perhaps the most important facet for the people of Northern Ireland that is represented by Brexit. Northern Ireland will be affected by Brexit more than any other part of the United Kingdom simply because of geography. However, more than geography, it will be affected by cultural and economic changes and, of course, the security question.

    It is important to emphasise what lies behind the words of the amendment; I am glad that the noble Lord, Lord Hain, will not press it to a Division. It is a reminder that this part of the United Kingdom will be the first to feel the effect of Brexit. The second part will be the ongoing consequences. As the noble Baroness has reminded us, there is the tariff question, the economy and the proverbial oil tankers, and horses and cows in the field.

  • Away from the romanticism of this, in this House this evening are three Peers who have every reason to remind us of the sensitivities of what Brexit will do to the situation in Northern Ireland. I refer to those who have served us well as Secretaries of State over the years. What has been achieved in the island of Ireland in the relations between north and south, and east and west—which are equally as important—over years full of bloodshed and great suffering for people on both sides, has been remarkable. Those of us who have worked most of our lives to try to bring reconciliation and progress—not only in the political sense but in that wide and deep sense of people’s relationships, their hopes and everyday lives—fear that if anything is done that will upset the balance of those newly achieved relationships, a lot of other people will suffer.

    I applaud the noble Lord, Lord Hain, for the wording of his amendment. I thank him and his two colleagues who have served the people of Northern Ireland over the years. Even though in a sense the noble Lord is probing us with the words of his amendment, I ask the Minister to recognise once more that this is much than a question of a line on the map; it is a question that goes very deep into our understanding of the future.

  • The whole House always listens to the noble and right reverend Lord with the greatest respect on these matters. I have known him for about 20 years and have spoken to him on the subject over that time and feel the same degree of respect. I wonder whether he would like to tell the House—I do not know what answer he will give—whether he feels that one possible solution to the difficult, dire problems he has just outlined might be to allow for the negotiation of a special status for Northern Ireland which might leave it, at least in some respects, within the European Union.

  • My Lords, I feel that the question that the noble Lord has raised takes us far beyond the points I was trying to put over because we must not tie the hands of the team that is going to speak for us all in the negotiations. I say to the noble Lord, please keep an open mind on the possibilities, but it is not for us to concern ourselves with.

  • My Lords, it is a real delight to follow the noble and right reverend Lord, Lord Eames. When he was Archbishop of Armagh he invited me endless times to visit Northern Ireland, even during the terrible Troubles. As a result we ended up spending a lot of holidays in that particular part of Ireland. It is a very beautiful, wonderful place. The noble Lords, Lord Hain and Lord Reid, spoke with insight. I would like to follow in their footsteps on this wonderful probing amendment that the noble Lord, Lord Hain, says he is not going to put to a vote.

    I want to say three things. First, this amendment, as I understand it, touches on sensitivities that Brexit risks putting Northern Ireland’s peace process in jeopardy by not taking account of the fact that under the Belfast/Good Friday agreement citizens in Northern Ireland have a right to Irish citizenship and therefore EU citizenship. This makes Northern Ireland unique post Brexit as the only jurisdiction outside the EU where every person living there is legally entitled to be a citizen of the European Union, simply by applying for an Irish passport. While these considerations are high on the agenda in Dublin and Belfast, they are not receiving, as I understand it, the attention they deserve in London, Brussels or other EU capitals. The amendment seeks to reverse that situation, hence its probing nature.

    Secondly, this issue and other matters relating to the impact of Brexit on UK-Irish relations were explored in a report published in December 2016 by the House of Lords European Union Committee. The committee concluded that the unique nature of UK-Irish relations needs a unique solution. It recommended that the best way to achieve this would be for the EU institutions and member states to invite the UK and Irish Governments to negotiate a draft bilateral agreement, involving and incorporating the views and interests of the Northern Ireland Executive, while keeping the EU itself fully informed. Such an agreement would then need to be agreed by the EU partners as a strand of the withdrawal agreement. I will be interested to know what the Minister will say about that.

    Thirdly, this amendment does not go as far as the committee suggested but it holds that the right of the people of Northern Ireland to Irish and therefore EU citizenship should be upheld in any agreement negotiated following the triggering of Article 50. To me, that is important. The noble and right reverend Lord, Lord Eames, reminded us of the importance of the border. There is no wall there but it is a border. It seems to me that the rights of those people need to be upheld otherwise we are going to put in jeopardy this wonderful act under the Belfast/Good Friday agreement that citizens in Northern Ireland have a right to Irish citizenship and therefore EU citizenship.

  • My Lords, I pay tribute to the wonderful, heartfelt speech from the noble and right reverend Lord, Lord Eames. I think I speak for many in this Chamber by saying that his speaking with such emotion makes us realise how important this issue is. The right of Northern Irish people to claim Irish citizenship is, as other noble Lords have said, set out in the Belfast/Good Friday agreement, the Irish constitution and, as has also been said, the common travel agreement. It should be stressed that this right will remain and will not be changed by Brexit. It would be wrong to suggest otherwise.

    However, there remain many unanswered questions and it will be useful, in debating this probing amendment from the noble Lord, Lord Hain, to push the Government for clarification on several issues. As has been said, Northern Ireland is unique in the United Kingdom in that citizens can choose to have Irish citizenship, British citizenship or both. Since the Maastricht treaty, citizens in both Ireland and the United Kingdom have also been entitled to European citizenship. However, following Brexit, in Northern Ireland there will be a situation in which, unlike in the rest of the UK, people will be able to remain EU citizens by virtue of their Irish citizenship. Will the Minister say how he believes UK citizens also being able to maintain EU citizenship will work in practice?

    Last week, your Lordships’ House voted overwhelmingly to maintain EU citizens’ rights in the United Kingdom. If this is overturned by the House of Commons next week, can the Minister clarify whether he believes this will have any impact on the Northern Irish people who have opted to have Irish citizenship? If there is no change to the current situation, does the Minister believe that this would entail special status within the European Union? Finally, can the Minister confirm that resolving these issues will be a top priority for the Government, and does he agree that any continuing uncertainty or lack of clarity about future citizenship rights for Northern Irish people is clearly unacceptable?

  • My Lords, how pleasant to have a meaningful and good, short debate. I so agree with what has been said. The noble Lord, Lord Hain, was kind enough to mention the bad feelings caused by the hounding and prosecuting of British soldiers over matters of Sinn Fein and Ireland. I remind noble Lords that our Armed Forces are full of good Ulstermen and good Irishmen, and they need looking after and defending. The false prosecuting of British soldiers and airmen and the constabulary in Northern Ireland should not be allowed. The Minister may not recall that previous Governments have given dispensation to IRA/Sinn Fein murderers of British troops and the constabulary. This false prosecution and hounding of the Armed Forces has to stop. It is a law thing, and maybe the Minister has some views on it. I raise it because the noble Lord was kind enough to bring up the question of a British soldier being prosecuted.

  • I put it on record that my noble friend Lord Hain, who is perfectly capable of speaking for himself, my noble friend Lord Murphy and I tried, unsuccessfully, to draw a line against all prosecutions before 1998. We did it in retrospect in 2002, 2005, 2006 and so on. We could not get common agreement among parties in Northern Ireland—or, indeed, in the British Parliament—so to do. We said at the time that we would regret that decision as the years went on and prosecutions were pursued against the British Armed Forces, the RUC and, indeed, people from the loyalist and republican communities. I put it on record that the three of us all made an attempt to solve this problem, but we could not get consensus in the British Parliament or among the parties in Northern Ireland.

  • I am fully aware of that and of what other noble Lords, Ministers and Secretaries of State have done, and I thank the noble Lord.

  • My Lords, I believe that citizenship is not threatened by the decision of the United Kingdom to leave the European Union. Indeed, I am absolutely certain that people of whatever outlook can be confident that the undertakings given to them will be honoured. I refer to the Good Friday agreement, where in the section under constitutional issues, paragraph vi of Article 1 refers to recognising,

    “the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland”.

    We can link that to the matter that I brought to your Lordships’ attention in the debate last week. We go back to our friends in the Supreme Court, who said that the Supreme Court has now unanimously endorsed the Belfast ruling without caveat, which was to say that the rights of people in Northern Ireland were not affected by Brexit—but the Attorney-General John Larkin decided to put the case to the Supreme Court for clarity, and it is a good thing he did. That included the three judges who were dissenting from the final judgment in Miller. Furthermore, because there will now be a UK Parliament vote on Article 50, the court added that nothing about Northern Ireland’s removal from Europe breaches any law, treaty or part of the constitution.

    Therefore, I contend, though not being a lawyer, that the position of citizenship is secure. As the noble Baroness, Lady O’Neill, clearly indicated, that goes back way before the Belfast agreement ever existed. In fact, the Irish constitution, before it was amended in 1998, made it absolutely clear that any person born on the physical ground of the island of Ireland was an Irish citizen, which has pertained ever since. It was reinforced in the Belfast agreement, but it says that it shall,

    “not be affected by any future change in the status of Northern Ireland”.

    In other words, people argue that leaving the European Union changes the status in some way, but the Supreme Court says that no injury is done to any treaty, law or the constitution.

  • Therefore, I believe that the noble Lord, Lord Hain, can be confident that the important point that he raises along with his colleagues on the question of citizenship can be laid to rest. I believe that there is no threat to that issue and, if there was a threat, while I might take a different view of my own personal nationality, nevertheless I would support the right of anyone to maintain what they believe is their identity. We had many hours and days of discussion on this and, while it may not be my particular outlook, we accepted universally that people have a right to determine their identity. The former distinguished Secretaries of State who are here will know how important an issue it is for people. It is fundamental—it is a core issue—and we had to listen and participate in debate on the issue for many years, so I do not dismiss it lightly. It is right that it be debated now, but I am confident that, legally and internationally through a treaty and in other ways historically, citizenship rights of people on the island of Ireland are secured and not threatened by the United Kingdom’s decision to withdraw from the European Union.

  • My Lords, I am very grateful to the noble Lord, Lord Hain, for raising one of the issues that has troubled me most about leaving the European Union. It is not just about citizenship, from my perspective. So many companies across Ireland are deeply concerned about the possibility of leaving the EU with no deal, falling back on WTO rules, and the effect on the economy of the north and the rest of Ireland. In the context of us having responsibility for the whole of the United Kingdom, I urge the Minister to reassure us that it is possible to leave the customs union and still provide significant comfort to corporations and others engaged in economic activity in Northern Ireland.

  • My Lords, I thank my noble friends Lord Hain and Lord Murphy of Torfaen for tabling the amendment, which gives us a chance further to emphasise the importance we place on the issue it deals with. It has been for the most part an extremely positive debate. Contributions from my noble friends Lord Murphy of Torfaen, Lord Reid of Cardowan and Lord Hain, as former Secretaries of State for Northern Ireland, have weighed heavily on the discussion, as well as the contributions of the right reverend Lord, Lord Eames, the most reverend Primate the Archbishop of York, the noble Baroness, Lady O’Neill of Bengarve, and the noble Lord, Lord Empey, who brought a commendable spirit of tolerance into what can be on occasions a tight subject.

    It has been almost 20 years since the people of Northern Ireland turned out to vote for the Good Friday/Belfast agreement. Last week, Northern Irish voters turned out in the highest numbers since 1998 to vote for representation and progress in the devolved Assembly. The negotiations in the coming days and weeks are vital to the future of Northern Ireland to ensure that victims are supported and communities are able to move forward. There is so much at stake here.

    The UK and Irish Governments are co-guarantors of the Good Friday/Belfast agreement and must live up to this responsibility. This is vital, not only to immediate negotiations on devolution but, focusing on the amendment, to long-term Brexit negotiations. On the issue of British-Irish relations and the role of the European Union, it is worth noting that the Prime Minister and Taoiseach are meeting to discuss Northern Ireland while they are together at the EU Council summit in Brussels this week. That can only be a positive development.

    There is a body of opinion that, when he decided to call the European Union referendum, the former Prime Minister, Mr Cameron, had not given proper thought to the implications for Northern Ireland if UK voters opted to leave. I pay tribute to all noble Lords who have worked so keenly during the passage of the Bill to focus the Government’s mind on these key issues, particularly my noble friend Lord Murphy of Torfaen, who has brought considerable expertise to these discussions. The Good Friday agreement has been the cornerstone of two decades of progress in Northern Ireland. This House has asked for an absolute guarantee from the Government that the provisions of the agreement will remain in place and be respected in both letter and spirit. These questions were also raised last week when other matters were discussed. We had no hesitation in fully accepting the Minister’s assurances when he responded to the debate. He went a long way toward guaranteeing the House’s acceptance that those assurances would hold. I have every confidence that he will again give assurances on the responsibilities of the UK Government that will satisfy most genuine, open-minded people.

    The passport arrangements recognise,

    “the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both”.

    As the noble Lord, Lord Empey, said, I have not heard any great objection to this. As he said, how can anyone object to someone else’s identity? Surely we accept that. We know that the Government accept this situation and it should not be affected by any future change in the status of Northern Ireland. We in this House have a shared duty to guarantee the future of the Good Friday/Belfast agreement and the rights of Northern Irish citizens. As noble Lords on all sides have said, we must respect the will of the people and, in doing so, we must continue to respect, protect and uphold the result of the referendum which took place in May 1998.

    I thank noble Lords for a very positive discussion and restate my belief that the Minister will repeat his assurances of last week, which greatly reassured the whole House.

  • I thank all noble Lords who have taken part in the debate on this amendment, relating to the right of the people of Northern Ireland to identify themselves as British or Irish or both, under the Belfast agreement. It is always a pleasure to follow two former Secretaries of State who have so much experience of this issue. I also mention the eloquent contributions from, among others, the noble and right reverend Lord, Lord Eames, and the most reverend Primate the Archbishop of York.

    The noble Lord, Lord Hain, referred to the current political context. The whole House is very conscious of the political situation in Northern Ireland and the need to provide support to the parties there. The recent Assembly election produced a high turnout, and my right honourable friend the Northern Ireland Secretary said in a statement on Saturday:

    “This election has demonstrated the clear desire by the overwhelming majority of people in Northern Ireland for inclusive, devolved Government … Everyone now has a shared responsibility to engage intensively in the short period of time that is available to us, to ensure that a strong and stable administration is established”.

    I make it absolutely clear that the Government take that responsibility very seriously and are totally committed to the resumption of strong and stable devolved government which is so much in the interests of the people of Northern Ireland. We all want to see the forward momentum of the peace process maintained.

    The amendment in the name of the noble Lord, Lord Hain, seeks an undertaking to support the right of the people of Northern Ireland to claim Irish citizenship, as set out in the Belfast agreement. The Government’s commitment to the Belfast agreement is absolutely rock-solid, including to the principles that recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they so choose, and their right to hold both British and Irish citizenship. As the noble Baroness, Lady O’Neill, and the noble Lord, Lord Empey, made clear, this birthright predates the Belfast agreement. The United Kingdom’s departure from the EU will not change this commitment. However, the question of who can or cannot claim Irish nationality and citizenship is not something that would be dealt with through the Article 50 process.

    Citizenship and nationality are matters of exclusive member state competence. The right to Irish nationality and citizenship is therefore a matter for Ireland, in line with its own commitments under the Belfast agreement. The Taoiseach has repeatedly made clear that the Irish Government remain committed to this agreement. In response to the point made by the noble Lord, Lord Hain, and the noble Baroness, Lady Suttie, EU citizenship is enjoyed by the citizens of all EU members. Therefore, any Northern Ireland resident who takes Irish citizenship will have EU citizenship. This is a matter of EU law, so no guarantees are required from the UK. It does not require special status. There are, after all, 3 million EU citizens currently in the UK. The noble Lord, Lord Reid, and the noble and right reverend Lord, Lord Eames, raised the issue of the border. The Government are committed to a frictionless border. How that is achieved is a matter for negotiation.

    In conclusion, although the Government agree with the core sentiment behind this amendment—namely, unwavering support for the Belfast agreement—there is no need for its inclusion in the Bill in order to achieve the effect the noble Lords are seeking. Therefore, I respectfully ask the noble Lord not to press his amendment, as he indicated he would not.

  • My Lords, I am grateful to the Minister and will respond briefly to him in a moment. However, the happy consensus which we have enjoyed this evening will be destroyed over the weekend when Wales play Ireland—at least in the case of my noble friend Lord Murphy and me.

    My noble and right reverend friend Lord Eames spoke, as always, with moving eloquence. I am grateful for his generosity to me and to my noble friends Lord Reid and Lord Murphy. He said, very aptly, that Northern Ireland was affected by Brexit more than any other part of the UK. Scotland may be making the most noise but he is right that Northern Ireland, potentially, will be more seriously affected.

    The noble Viscount, Lord Slim, referred to my mention of soldiers being prosecuted. To ensure that he understands my point of view, which is shared by my noble friends Lord Reid and Lord Murphy, we did indeed try to draw a line under the past. I introduced the Northern Ireland Offences Bill, which fell because its principle was that it applied to everybody. You had to treat people equally, whether they were a British soldier or a former paramilitary: that principle is vital. I can well understand why the families of soldiers who are now in their 70s and are being prosecuted for offences that they are said to have committed have a grievance that this may be one-sided.

    You have to do these things even-handedly—and I return to what my noble and right reverend friend Lord Eames said. I do not wish to detain the House because it is not strictly appropriate to this amendment, but it is part of the context. You have to deal with this whole question in an entirely different way from pursuing continuous prosecutions going back 30, 40 and more years. Forensic evidence in those cases is either non-existent or, if there is forensic and other evidence, it is often more easily captured under former serving soldiers, where records were kept, than it is under former paramilitaries. So long as the parties turn their backs on an even-handed approach and so long as government is unable to pursue that matter, we will continue to have these grievances and they will multiply.

    My noble and right reverend friend Lord Eames was the co-author, with Denis Bradley, of a very authoritative and excellent report on the past. There was one particular recommendation on compensation which perhaps was not ideal and attracted a lot of controversy. However, the rest of the report showed how it was possible to address this issue. The people of Northern Ireland and their politicians should return to it.

  • I am obliged to the noble Lord. Would he not confirm that, even going back to 1998, one of the principal objectors to drawing a line or trying to treat everybody equally was the Army? It did not wish to be treated in the same way as terrorists who were being prosecuted. It wrote to the Government at the time, objecting strongly to being treated in the same way as ex-paramilitary prisoners. I understand that the security forces still object to that. It is an issue that needs to be addressed. I hope that the noble Lord is at least aware of it.

  • I am aware of it. It is more complicated than the view that the noble Lord attributed to the Army—but my noble friend Lord Reid may be able to clarify.

  • What the noble Lord, Lord Empey, said was true—but, at a certain point, the chiefs of staff actually changed their mind. They could see the difficulties of paramilitaries having been released and the precise difficulties that have been pointed out tonight of British Army soldiers being prosecuted. While I was Secretary of State, they agreed that, if any member of the Armed Forces wished, in the event of such legislation being passed, to have recourse to and defence through immunity, they would not object. So, historically, although they had taken one view, they were prepared to countenance that on behalf of the Armed Forces.

    Unfortunately, the parties in Northern Ireland would not permit an agreement at any given time—and nor, indeed, to be fair, would the British Parliament. We said consistently, “You will regret this because it will be a running sore for decades”. While we accept that there is a contradiction between justice for the families of those injured or killed in the past—which I understand perfectly—and peace and security for the future, the overwhelming case was to assure peace and security for all families in future by drawing a line at 1998. This has been the position of the British Armed Forces since 2003, as I understand it.

  • I am grateful to my noble friend. I will not prolong this discussion too much except to say that, following the impasse that the Minister, the Secretary of State and their colleagues are grappling with, we hope that negotiations will bear fruit. It may well be that the British Government have to give something on this. I would just mention in passing that there is, for example, a demand from the WAVE trauma group to have a pension for innocent victims—not perpetrators of atrocities. I presume this could come only from the Government. I will briefly give way.

  • I am grateful to my noble friend. Thanks to the initiative of the noble Viscount, Lord Slim, we are talking about a desperately important matter. As the noble Lord, Lord Empey, said, there are still some serious reservations about granting amnesty to British forces. I share some of those sensitivities. Without getting into this complicated ground, is it not the case that the prosecuting authorities always have the option to decide whether or not to prosecute not just on the grounds of whether there is a chance of a conviction but also on the grounds of national interest? Is it not to be hoped that the prosecutor in Northern Ireland will take advantage of the opportunity for a judgment with the greatest degree of sensitivity?

  • We are opening up a whole new debate. I am not sure I fully agree with my noble friend. I will end by saying that I welcome the fact that the Minister said that the commitment to the option of Irish citizenship is rock solid, as is the commitment of the Government to the Good Friday Belfast agreement. I beg leave to withdraw the amendment.

  • Amendment 5 withdrawn.