In this debate Lord Bilimoria discusses Parliament, Parliamentary supremacy and executive power and the nature of the unwritten UK constitution in light of the High Court decision around the triggering of Article 50. He stresses the value of Parliament and the expertise present in the House of Lords.
Article 50 (Constitution Committee Report)
22 November 2016
Moved by Lord Lang:
That this House takes note of the Report from the Constitution Committee The Invoking of Article 50 (4th Report, HL Paper 44).
My Lords, I congratulate the noble Lord, Lord Boswell, and his committee on their excellent report. We should acknowledge that this House has huge authority but also that, within it, one of its most reputed parts is the European Union Committee and its sub-committees. It is one of the most respected bodies not only in both Houses of Parliament but throughout Europe. The European Union Committee is held up as an authority to be listened to and respected. When it says that it believes that Parliament can play a vital role in offering constructive and timely comment on both the process and the substance of the negotiations and that such scrutiny will contribute to a greater sense of parliamentary ownership of the process, strengthening the Government’s negotiating position and increasing the likelihood that the final agreement will enjoy parliamentary and public support, I think that we should listen.
The committee has said that Parliament has a duty here, which is the crux of this whole matter. Let us go all the way back to Oliver Cromwell and what he did when King Charles went too far. The principle of parliamentary supremacy was then established once and for all. Cromwell was the most famous alumnus of my college at Cambridge, Sidney Sussex, and his statue still stands outside Parliament even though he was responsible for killing a King. The principle of parliamentary supremacy was established when things went too far. Let us fast forward to today. We are talking about a situation where we must ask: is it the will of the people that Brexit means Brexit, or is it for parliamentary democracy? Then it is all about the individual who is to sit on the Woolsack, where for centuries we had the legislature, the judiciary and the Executive all in one person—completely conflicted but not giving rise to a problem for centuries. There was no need to establish the Supreme Court because we had a perfectly good working system right here in the highest court in the land, the House of Lords.
Now, this is all about the balance and the wonderful unwritten constitution of ours, a delicate thread that has been woven through the centuries and has built the strength and foundation of this amazing country. That foundation lies in the rule of law, and respect for the fairness and independence of our judiciary is at its crux.
The noble Lord, Lord Kerr, in his submission to the committee said:
“This is not the Montreux Convention or the Antarctic Treaty. We are talking about something that … will affect almost every area of public life in this country … Vast areas of domestic policy will be affected, and policy choices possibly foreclosed … by this negotiation. Therefore, it follows that this is a treaty where there absolutely needs to be very full parliamentary scrutiny”.
The committee said that:
“It would be constitutionally inappropriate, not to mention setting a disturbing precedent, for the Executive to act on an advisory referendum without explicit parliamentary approval—particularly one with such significant long-term consequences. The Government should not trigger Article 50 without consulting Parliament”.
That is the crux of it. What was the Prime Minister thinking? Why try to ride roughshod over Parliament? Why try to bully us and disturb our wonderful convention and history? Let us be honest: as I said earlier, this referendum result was democratically definitive, but the figures were 52% to 48%, representing 17 million people and 16 million people respectively. We keep talking about the will of the people, but what about the will of the 16 million? Any responsible constituency MP says, “I have been elected by the majority of my constituents but I look after the interests of every individual in my constituency whether they voted for my party or not”.
One of the recommendations is:
“We recommend that the new Committee appointed to scrutinise Brexit should incorporate the existing scrutiny functions of the European Union Committee”.
Does the Minister agree that that should happen? No one has mentioned so far the fact that the report talks about the wonderful concept of parliamentary diplomacy. Parliament should play an active diplomatic role throughout the Brexit process and the European Union Committee is perfectly placed to do that. Again, does the Minister agree with that?
In the speech she made yesterday to the CBI, the Prime Minister said:
“For this is a true national moment. The decision of the British people on 23rd June gives us a once-in-a-generation chance to shape a new future for our nation”.
But what about the generations ahead?
I turn to the legal ruling that has led to all this. Kenneth Armstrong, professor of European law at the University of Cambridge—and here I declare an interest as chairman of the advisory board of the Cambridge Judge Business School—has written an article entitled Victory for Parliamentary Democracy in which he states:
“However, while the outcome of the referendum has given the Government a political mandate to withdraw from the EU, the legal power to notify must be exercised within legal limits. The High Court has concluded that where an exercise of the Royal Prerogative would remove legal rights, derived from EU law but made available in domestic law by Parliament through the European Communities Act, only Parliament can legislate for such rights to be removed”.
It cannot be any clearer than that. Government lawyers argued that the prerogative powers were a legitimate way to give effect to the will of the people, but the summary of the judgment stated that,
“the Government does not have the power under the Crown’s prerogative to give notice pursuant to Article 50”.
Of course, this has scared Nigel Farage, who said that we were heading for a “half-Brexit.” The noble Lord, Lord Kerr, the author of Article 50, seemed to suggest that once we invoke Article 50, we may be able to retract from it during that process. This is a debatable issue.
Just recently, the Government decided not to implement the recommendations of the Strathclyde review, with the Leader of the House stating:
“We recognise the valuable role of the House of Lords … The Government are therefore reliant on the discipline and self-regulation that this House imposes upon itself”.
But then came the threat:
“Should that break down, we would have reflect on this decision”.—[Official Report, 17/11/16; col. 1539.]
How many times have I been told by people in the other place: “Watch it. Don’t go too far, otherwise that’ll be the end of you lot”? I have heard it outside as well: “You unelected Peers pushed this too far. Your days are numbered”. However, the House of Lords has killed only five statutory instruments supported by Governments since 1945. Let us get real: this House, when it boils down to it, does not filibuster; this House does not block for the sake of blocking; this House does not throw out legislation; we debate it in the best interests not of one party or another but of the country. Three senior members of the Conservative Party, including Dominic Grieve, the former Attorney-General, have said that the Government should withdraw their appeal to the Supreme Court and just get on with it.
We talk about a transitional deal. The noble Lord, Lord Inglewood, said that Brexit would be a long-drawn-out process. It will take two to 10 years. The elements of it are not as simple as exiting the European Union. What about the treaties, whether it is staying in the single market or in the customs union or doing trade deals? The Prime Minister saw this in action in India—I was there when she was. She thought that she could go there with Liam Fox and come back with trade deals. Before she went out, it was announced that Indian IT workers’ minimum salaries would be increased by 50%. One of India’s main exports is its excellent IT services, from which our public services and private sector benefit. Suddenly, they are told that salaries will be 50% higher, which makes them less competitive. When the Prime Minister was there, she spoke about returning to India Indians who had overstayed—that has built a lot of friendship as well. Then, when she had 35 university leaders there with Jo Johnson, she did not mention higher education or universities once in her opening speech; she did not even meet the university leaders, whereas Prime Minister Modi, one of the most powerful people in the world, said humbly that the mobility of India’s youth in education was crucial. We send out negative messages about international students; we still treat them as immigrants and include them in our net immigration figures; and we think that we can do trade deals with India. Dream on.
Canada took eight years to do a trade deal with the EU—it was 1,600 pages. The noble Lord, Lord Kerr, spoke about that. What do the Europeans think about all this? We know for a fact that the whole world thinks that we should not leave the European Union—I know that; India is a perfect example. Anyone I speak to in India—civil servants, government or business—says, “You shouldn’t leave the European Union”. The whole world except Donald Trump thinks that we should stay in the European Union. What about what the Europeans think? We talk about great negotiations—“They need us more than we need them”. What nonsense. Forty-five per cent of our exports go to the EU and 55% of our imports come from it. We are net importers from the EU; we are only 8% of its exports, and that is spread out between 27 countries. Get real. Twenty-seven countries, encompassing nearly 500 million people, will be negotiating against us. We are not in the strongest negotiating position here. According to the Dutch Finance Minister, Boris Johnson has said things which are “intellectually impossible”. The Home Affairs Committee heard that the Brexit campaign had created a dangerously toxic EU debate where facts did not matter.
I do not have the time to re-run the referendum, but the crux of it is that there was a definitive democratic vote to leave the European Union—but based on what? I have met people who said: “I voted to leave the European Union because I wanted to save the NHS”, because they believed the claim on the leave battle bus about £350 million a week being put back into the NHS, a claim in front of which Nigel Farage and Boris Johnson spoke in front of TV time and again. People voted for different reasons, based on lies.
As the EU Committee’s report states:
“The forthcoming negotiations … will be unprecedented in their complexity”.
The basis is highly complicated and the outcome is far from certain. Does the Minister agree, as many noble Lords have suggested, that there should be a Green Paper, let alone a White Paper, on this?
The Prime Minister wants to use the royal prerogative. One of the strongest areas in which such a prerogative can be used is in going to war—a Prime Minister does not need to consult us; they can go to war. Have they done that in recent history? In 2011, with Libya, the Government granted a vote. In 2013 and 2015, with Syria and Iraq, the Government granted a vote. The Government have not exercised the prerogative, yet here is something that will affect the whole of this country, including our security, and the Prime Minister thinks that she can just go ahead without such a vote. A headline to an article written by Vernon Bogdanor, previously of Oxford University and now at King’s College London, states:
“The EU referendum shows how the sovereignty of Britain’s people can now trump its Parliament”.
That is the big issue here. Is Parliament sovereign? Here is the irony of it all: “Vote leave and take back control. Take back control of our Parliament”. And then Parliament is just cut out of it, and that is convenient. That is hypocrisy. It is contradictory and hypocritical.
I said before the vote and straight after it that there would be repercussions. The first vote of no confidence in this country by the world was the devaluation of the pound—it fell by as much as 20% and is still 15% lower than its pre-vote value. That is the first sign of the uncertainty, which could then lead to higher interest rates, which could then lead to inflation, which could then lead to our economy not growing as quickly, which could then lead to problems for every citizen of this country.
I conclude by referring to the way in which our judges were attacked. I remember when I came as a student to this country and heard Lord Denning, then Master of the Rolls, speak. It was a speech that I will never forget. Then the noble and learned Baroness, Lady Hale, was criticised, including by Iain Duncan Smith, who said that there would be a constitutional crisis. And then the judges were called “enemies of the people”. The noble and learned Baroness said in response:
“It is unfortunate that isn’t made clear to the British public, because it is very important they understand what the role of the judiciary is, which is to hear cases in a fair, neutral, and impartial way. You have to be independent and true to your judicial oath and cannot allow yourself to be swayed by extraneous considerations that have nothing to do with the law”.
When at the Lord Mayor’s Banquet last week the Lord Mayor, Andrew Parmley, praised the judges, he got the biggest ovation of the evening. Our judiciary are respected as the finest, the most just and the fairest in the world. They are independent. There is no way that we should ever dare to criticise them.
This House has the greatest depth and breadth of expertise of any parliamentary Chamber in the world. It would be a waste for it not to be consulted. The point being made by the committee is that this House and Parliament need to be consulted on Article 50 right at the beginning, right through the process and right after it. That is what is at stake here. We need to be part of this process throughout, because our role is that of the guardians of the nation. Whether or not it is smart Brexit, as the noble Lord, Lord Kerr, called it, what is at essence is that we will do our best for this country and nothing else.