Peers highlight the importance of Parliament’s ‘final say on individual rights’ in debates on the Bill

The House of Lords Second Reading debates on the European Union(Notification of Withdrawal) Bill 2017 were completed on the 21st of February. The Committee Stage debates began on the 27th (the second day is today).This will be the peers’ first opportunity to vote on any of the proposed amendments to the Bill. Votes on amendments are also very likely at Report stage on 7 March.

There is no prospect of the Bill as a whole being defeated, but there are encouraging signs that peers will fight hard for Parliament’s right to decide both on the acceptability of any withdrawal agreement the Government negotiates with the remaining 27 EU states and on what to do if the negotiations stall or fail altogether. That right reflects Parliament’s responsibility for future decisions that impact on individual rights, repeatedly stressed by Supreme Court in the Miller judgment (paragraphs 5, 82-83, 87, 101, 111 and 124).

The Three Knights Opinion which we commissioned and sent to peers helped ensure this issue featured prominently in the Second Reading debates. Shortly afterwards, The Sun ran an exclusive story suggesting ministers had been so unsettled by what Lord Hope and others had said about the Opinion that they were contemplating consenting to an amendment to embed parliamentary sovereignty in the Bill and ‘secret talks’ had begun about its form.

We will need to wait and see what comes of this.The Bill is unlikely to be amended in a way that confronts all of the constitutional problems identified in the Three Knights Opinion, but it certainly can be improved by amendments. 

Having reviewed those that have been submitted for debate and the support they are likely to attract, we have decided to urge peers to support the ‘parliamentary approval amendment’proposed by Baroness Hayter, Lord Hannay, Lord Pannick and Lord Oatesand have sent all active peers a detailed briefing about this. 

In our briefing, we point out the irony of ministers telling Parliament it will be offered no more than a ‘take it or leave it’vote bearing in mind what was decided by the Supreme Court in Miller and accepted in the White Paper: “[t]he sovereignty of Parliament is a fundamental principle of the UK constitution”.Parliament cannot fulfill its own constitutional role by writing a‘blank cheque’ authorising withdrawal from the EU two years from now, either on whatever unknown terms may  be agreed, or without any agreement at all. To do so would be a serious abdication of parliamentary sovereignty, with implications for the rights of every UK national and business.

The parliamentary approval amendment would improve things considerably. It would make it clear that the UK cannot agree to leave the EU on agreed terms unless Parliament consents to the terms of any withdrawal agreement negotiated with the EU and, if there is one, an agreement relating to the future trading relationship. It would also prevent the Government from unilaterally abandoning negotiations without Parliament’s authority. The amendment would create meaningful choices for Parliament on the face of the Bill,give Parliament genuine control by confirming its approval a precondition to any new agreement, clarify much of what Parliament must decide and so provide greater legal certainty.

Many peers have shown they appreciate just how important it is not to surrender parliamentary sovereignty. For example, Lord Heseltine has said he will back amendments that protect it. In the Second Reading debate Lord Kerr, former UK ambassador to the EU, former head of the UK diplomatic service and author of Article 50, told fellow peers:

“…we need to consolidate in the Bill the Government’s quasi-commitment to give Parliament its say before the die is cast on any emerging settlement.The European Parliament’s similar right is enshrined in the language of Article 50. This Parliament deserves no less. It will not do just to give Parliament Hobson’s choice—to say, “It’s this deal or no deal”. Timing is crucial. Parliament must have the chance to consider at least three other options. 

Under option one,Westminster could follow the frequent practice of the United States Congress, say that it does not like the emerging deal or some particular aspect of it, and ask the Executive to go back and try harder…

As regards the second option, if timing proves tight Westminster could invoke Article 50(3) and invite the Government to seek an extension of the two-year period. The European Union is a union of democracies. If this Parliament asked for an extension, and our Government conveyed our request, in my judgment it would certainly be given.

Under the third option, Parliament could invite the Government or the country to think again. An Article 50 notification is not irrevocable. The President of the European Council and a gallery of EU legal luminaries have confirmed—of course, the noble Lord, Lord Lester of Herne Hill, is among their number—that a member state may, in accordance with its constitutional requirements, withdraw its notification within the two-year period or its extension. This morning, the noble Baroness, Lady Symons of Vernham Dean, asked about the Government’s motive in conniving in the High Court at the fiction of irreversibility. I cannot answer her but the fact is that Article 50, which first saw the light of day under the heading“voluntary withdrawal” is not an expulsion procedure. We remain full members of the European Union throughout the negotiating period—the two years or its extension. If, having looked into the abyss, we were to change our minds about withdrawal, we certainly could and no one in Brussels could stop us. If it were not so, I would have to oppose the Bill. As it is, all we need do is improve it and make sure that the rendezvous with history, which comes when we know what the Government want for the future of our country and its relationship with our continent, is clear.”

Lord Lisvane commented:

In the referendum campaign we heard a lot about regaining our parliamentary sovereignty; perhaps it is a little ironic that we have had in the first instance to rely upon the assistance of the courts. However, it would be even more ironic if the legislative process of withdrawal involved a major transfer of power to the Executive….”

Lord Strasburger commented:

Should we not be asking ourselves: why are the Government in such a hurry? Why are they so intransigent and intolerant of meaningful scrutiny of the deal they hope to bring back from the negotiations? The explanation must be that deep down they realise that they cannot  possibly secure a deal anywhere near as good as the one we have right now. What everthey get will not stand up to close comparison with membership of the single market and the customs union…

Our patriotic duty is to scrutinise and amend the Bill. We must protect Parliament’s sovereignty and give it a chance to accept or reject the deal, with the status quo as one of the alternatives, rather than automatically going over the WTO cliff. We must protect the rights of EU nationals already in the UK and we must give the people a say in the final decision. That way, if the best deal the Government can get is not good enough, Parliament and the people will have a final chance to stop the self-destruct button being pressed.”

and Lord Pannick also made a powerful speech observing:

I think that the Bill requires amendment, in particular to ensure parliamentary sovereignty as the process of withdrawal occurs over the next two years. Noble Lords know that the Prime Minister has promised that any agreement with the European Union on the terms of our withdrawal and our future relationship with the EU will require the agreement of both Houses of Parliament. She has said that the agreements will so require before any agreement is put to the European Parliament for its consent. That promise should be written into the Bill. A political promise, made by the Prime Minister in good faith, is no substitute for a clause—an obligation—in an Act of Parliament.The reason for that is that political circumstances can change; Prime Ministers can change over the next two years. On a matter of this importance, it is vital to ensure that there is a clear and binding obligation on the Government to return to Parliament at a defined time to seek the agreement of both Houses of Parliament for the terms of any agreement. As the noble Lord, Lord Kerr, said, this Parliament must have at least the same powers that the European Parliament has to disagree with the terms of any draft agreement…

I am also concerned about what happens if there is no draft agreement between the UK and the EU on the terms of our withdrawal. In my opinion, parliamentary sovereignty must also apply in those circumstances. Surely it must be for Parliament to decide whether we prefer no deal or the deal offered by the EU. It is for those reasons that I have added my name to an amendment that would require parliamentary approval for an agreement or for no agreement. The Supreme Court recognised the constitutional requirement for Parliamentary sovereignty. I hope noble Lords will do likewise.” 

In total, 184 peers took part, making this the largest second reading debate on record.

As the debates progress, we will continue to do all we practically can to support peers who are willing to fight to preserve Parliament’s final say so that it remains responsible for the individual rights at stake.

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