How not to get a good deal

Baroness Deech

On 21 February, after 20 hours of debate and 180 speakers, the House of Lords followed the House of Commons in giving a second reading to the European Union (Notification of Withdrawal) Bill. At the end of the day, acceptance of the revolutionary nature of the referendum outcome won out, albeit with reluctance and disdain on the part of many speakers.  Occasionally one would have thought that universal franchise had yet to arrive, such was the rejection of the result by the LibDems.  Second reading is not, however, the end of the matter, or even the end of the beginning, for the Lords have put down 17 pages of amendments, and it is clear that they have no intention of dropping them without a vote.  The government is in a minority in the Lords and must expect ping pong and some delay, although presumably not to the extent of the one year possible under the Parliament Acts.  Many peers declared that they had to vote as their conscience dictated.  From a crossbench perspective, that was a novelty. Every day we see peers who belong to the political parties troop into the lobby to vote according to the party dictate – quite rightly, for our parliamentary democracy is tied to party discipline. That discipline held sway last week.

Most of the amendments relate to matters that cannot be resolved unilaterally, such as the residence rights of EU nationals in the UK, remaining in the single market and Euratom (rejected); others touch on issues that can be settled later, such as the rights of EU students and environmental protection. They seem to be outside the scope of the Bill.

Other amendments are intended to alter the process of withdrawal in a way that would prevent us leaving the EU altogether. They would require that any deal negotiated with the EU be sanctioned by an Act of Parliament, or resolution, before it is put to the European Parliament for agreement. Opinions differ as to whether such further parliamentary approval is legally necessary: some distinguished lawyers both in and outside the House think it is, but the Supreme Court judgment in Miller did not go that far. The majority judgment in that case was given on the basis that the triggering of the Article 50 withdrawal process was the no-turning-back moment at which the rights currently enjoyed by residents of this country would inevitably be affected, and for that reason Parliament should fire the gun.  It does not follow that the conclusion of the deal is an equivalent step, also needing Parliament’s approval.  For, as is clear from the Art. 50 terms, the bullet will have reached its target after two years, approval or not. (3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.) What is necessary is the Great Repeal Bill, enabling Parliament to decide on the future of  EU laws that currently apply here.

If a procedural amendment to the Bill were passed, and Parliamentary approval was mandated for the conclusion of the deal, what might happen? The deal might be rejected because MPs and peers thought it disadvantageous, and the expectation would be that the government should go back and re-negotiate. But by then the two year time frame for negotiation will have passed, the shutters will come down and whether there is agreement or not, the withdrawal will take effect, unless the other 27 EU states agree an extension.  That too would take time, would be by no means certain, and we would be in limbo.  Failure to get UK Parliamentary approval might be the Remainers’ strategy, but they would not get what they wanted if this scenario is correct.  We would all be falling off the cliff, as they put it, at the stroke of midnight on the 730th day since the trigger was pulled, with no deal at all.  Some say that withdrawal could be revoked in this event, but there is no agreement about that possibility.  It would need to be judicially determined.

Since last June the UK has heard nothing but calls for punishment, revenge and money from the other 27, and faced their fear and desire for self-protection. We have no idea what the long term goals of the 27 are – they have not published a White Paper. They have not shown any will to protect the existing rights of their nationals resident here. One can only conclude that they will want to negotiate in a hostile vein and it is hard to imagine in practice that our change of mind, even if permissible, would be met by reconciliation; certainly it would be likely to be unacceptable to the electorate. The European Parliament may not care very much whether we get a deal or not. To adapt Groucho, I wouldn’t want to be a member of a club that will not let me leave even though they don’t like me.

If the government failed to get parliamentary approval of the deal in 2 years’ time, assuming it is required, another outcome might be a general election. Quite apart from the unlikelihood of there being one party supporting the draft deal and the others opposing it, the Fixed Term Parliaments Act has to be considered. The time taken to arrange to have an election and return to the negotiating table would also mean that the two year period had passed, and we would be out of the EU in any case. Another scenario is that we might present to the European Parliament a new and different negotiating position as preferred by the UK parliament, only to find that it is rejected, and again, we are out.

Although they appear to give rein to parliamentary sovereignty, (which in fact will only be fully reclaimed once the withdrawal process is completed) requirements for further parliamentary approval may derail the entire process with greater likelihood of an unsatisfactory outcome. Even if the government gave way and accepted some amendments in order to smooth the passage of the Bill, there is nothing to stop a government demanding the repeal of some of those conditions in two years’ time because they have proved to be an impediment to agreement. If the government had a majority they could achieve that, just as can be done with any Act.  Plainly the amendments requiring a second parliamentary assent are designed to enable Brexit to be blocked, although if enacted they are more likely simply to lead to no deal at all. In practice they are unworkable and defy the result of the referendum.

The decision to leave the EU was not suddenly reached last summer. For some UK voters, the economic benefits that membership may bring are outweighed by the rise of extremism, and the failures to uphold the rule of law, judicial integrity and freedom of the press in some EU nations, an ineffective foreign policy, together with the lack of proper governance in the institution itself. In the long term, the protection of our values is more important than questions of tariffs for the health of the nation. We have to let the government negotiate according to the majority will as expressed in the referendum.  It was a referendum on a matter of principle, not details. The government’s position will be stronger if the House of Lords abandons these wrecking amendments.

 

 

 

10 comments for “How not to get a good deal

  1. maude elwes
    01/03/2017 at 10:51 am

    It is time the Lords began to accept that they are an appointed, unelected bunch of well paid, for doing nothing, group. If they are so steadfast in the principle of voters rights, theirs, they should begin to take on board the wishes of the electorate. Rather than gloating about their own belief in themselves. When you listen to their repeated hours of the same line you do wonder why they all sound like an illiterate broken record. If another referendum was taken, as they appear to be calling for today, the leave vote would be double what it was last year.

    Are they crazy enough to believe a hated war criminal will be able to ‘lead’ the country into remaining with a party of henchmen in Brussels who pay him to help their cause of robbing us blind. Give us all a break.

    And, the constant harping about, on the leave bus, the promise to the NHS is a no go lie. We all know it said it ‘could partly’ be used to help the funding of that worshipped institution if we had it. However, if we were rid of foreign Aid, especially to India and China, the EU, Trident, NATO and many other non runners, we would then be well placed to service our DWP, our NHS and social care needs as well as the takers in the House of Lords, with no trouble at all. Especially if we got rid of those who are of no feasible use in that talking shop. At least two thirds of that chamber is simply filled with hangers on.

    So, they better start voting with the people who pay their bills and forget the coattail sponging before they get hit by lightening themselves.

    • LordBlagger
      02/03/2017 at 11:31 am

      Better placed, but it still won’t make a difference.

      Borrowing 1,500 bn
      State and civil service pensions, 10,000 bn
      PFI 300 bn
      Nuclear clean up 200 bn
      Losses on insurance 500 bn

      All debts/liabilties that the public is on the hook for, run up by the Lords and Commons. All bar 1 hidden off the Whole of Government accounts.

      The only one on the books? What the state owes the banks.

      Now the annual rate of increase in those debts is 750 bn a year, More than total spending, more than total taxes. The rate of increase is well over 10 times larger than the growth of GDP.

      You don’t have to be a rocket scientists to see that getting rid of the HoL, foreign Aid, especially to India and China, the EU, Trident, NATO and many other non runners, doesn’t make one iota of a difference.

      Instead we have the Lords with a Nero complex, playing the fiddle [pun intended], whilst they population gets burned.

      • 07/03/2017 at 2:12 pm

        Bravo, Lord Blagger (of stalwartly penetrating old leadership).

        ‘Though it is highly probable that none of us, “top to bottom” are yet adequately “prepared” to “come-down” to living within our own and this planet Earth’s “means” in longest-term as well as immediate resources and Lifesupports –

        [If £150pw is a sufficient human-living, then £300 a week, being twice that, makes the recipient only 50% personally-efficient at “living sustain-worth-ily” in the UK-Lifeplace (as distinct from the UK-Workplace and its costs) – and makes even our best psychiatrists many-times Deluded -]

        hasn’t it also long been shown that Economics is founded upon seriously flawed formulation-

        and that likewise similarly flawed is the whole Individually-Capitalistic and Top-Down Adversarily Constituted and Practised
        ‘Win-Lose’ Oligarchily-Directive Governance –
        of the UK but ‘de-facto-ly’ of the whole world;

        and that similarly ‘overkilling’ is the so-called “Private” Sector …

    • 03/03/2017 at 8:24 am

      All true, maude;
      but if it is still humanly and democraticly possible “be careful” –
      the Lords is the only governance place in the world to have established such a site as this Lords-of-the-Blog as a two-way reach-out direct to the public, albeit still only pseudo-democratic.

      Also visit
      http://lifefresh.net
      for a new similar, but wider ranging and less restrictive wordpress blog e-site – not-for-profit, power nor prestige – towards “sustain-worthy-ing” ourselves and our human-civilisations.

      When Baroness Deech includes “the rise of extremism” as a cause for “the voting majority of People is always Right” Brexit and this enduing barbed-wirean entanglement, she is foreshadowing the increasingly probable collapse of the Human Race’s civilisations worldwide:
      ‘Brexit’ will be “peanut” in a firestorm.

      • maude elwes
        08/03/2017 at 11:27 am

        @JSDM39B1

        Not true. Lords of the Blog, although a wonderful opportunity for the public to go straight into the heart of our ruling class, and therefore a true example of open mindedness on their part, it is not the only available public route to leadership. As I have mentioned before, the European website called, Debating Europe, is far and way more free in its working practice. First of all thousands of people in every State of that union write on it daily, sometimes with a vengeance never seen here. Or ever would be permitted on this site.

        And, not only that, censorship is kept to a minimum. Although the EU is a politically correct madhouse, on that website they do allow different opinions of mind to speak with a clear and loud voice. Whereas here that is not so. A great deal of opposing views are stifled. In some cases unbelievably so.

        Example: If you take a look at Debating Europe today you will see the questions on the threads themselves are what our Parliament would consider politically incorrect to open up and the responses to those threads would never be contemplated for the British electorate.

        The most open to advance in free thinking and different viewpoints has to go to Baroness Deech and that great believer in freedom of thought, Lord Norton. Both have confidence in their own intellect and views on all subjects which makes them secure enough in their beliefs to allow others to express theirs. If only the entire Parliament had their sense and understanding of expression, we would all greatly benefit. And perhaps more people, as with Debating Europe, would feel free to use this magnificent opportunity to get in touch with those who determine how we will live our lives.

        Look on DE and note how the Dutch people have responded to the thread on Geert Wilders. It is truly remarkable and very enlightening to all Europeans.

  2. Croft
    03/03/2017 at 12:34 pm

    Can’t really disagree with the argument.

    “Plainly the amendments requiring a second parliamentary assent are designed to enable Brexit to be blocked, although if enacted they are more likely simply to lead to no deal at all. In practice they are unworkable and defy the result of the referendum.”

    Are the Lords at least honest about this intent in the tea rooms – they seem to be going through the fiction that these are genuine amendments in the chamber!

  3. Dave H
    07/03/2017 at 3:46 am

    I’ve always understood the primary role of the Lords chamber to be one of revision, to attempt to take what the government wishes to do and convert it into something workable. This is especially true when it follows on from a manifesto commitment, in which category I place the whole Brexit topic.

    I find myself in the novel position of agreeing with Baroness Deech on something, in that I think the Lords, with these amendments, are not making the Brexit Bill into something workable, they are attempting to destroy the process under the guise of ‘doing good’.

    Given the nature of some of the threats made by various top EU politicians, the government should be free to enter negotiations without being hampered by the ball and chain of a binding requirement which can be exploited to the disadvantage of the UK by those on the other side who care little for the fate of British citizens elsewhere in the EU if they think they can punish the UK for having the temerity to leave.

    By all means have a requirement for a suitable vote, whether it be in Parliament or the citizens of the country as a whole (assuming Westminster can trust the people to get it right), at the end of the negotiation period to determine whether or not the country should accept the deal on offer, but there should be no binding requirements up-front apart from that. After all, the EU has learned from Cameron’s pathetic attempt at ‘renegotiation’ that the British people are not afraid to refuse to be told what to do by a bunch bureaucrats in Brussels so one would hope that a referendum at the end of the process might result in a more reasonable and fair deal being offered because they know that the UK could and would vote to reject it and just leave with no agreement in place.

  4. Senex
    20/03/2017 at 4:55 pm

    The advisory referendum has been treated by UK Parliament as a binding plebiscite at least from a German constitutional point of view. When the bill becomes law and Article 50 triggered the beginning of the end of UK annexation by the EU will have started. This is the sovereign case.

    The remainers see the EU differently. They see EU law as the collective commonality that all member states share. Individuality as it exists is the law to be created and maintained by the Parliaments of each member state. Europeans have more in common than not.

    A principle exerts itself as ‘no taxation without representation’.

    Each EU member state applies the principle however the EU Parliament has had a difficulties. Budgets could only be approved by all acting together in agreement. On occasion budgets have not been agreed. That is until recently, a budget was approved by the European Parliament Tuesday 19 November 2013 by an overwhelming majority. MEPs voted 537 in favour, 126 against, and with 19 abstentions (Wikipedia). Should Brexit similarly be carried by a majority?

    Immigration: the UCL (ukandeu) link shows member state populations but does not give the hectares available for population use. The UK is being squeezed by immigration. The Eurostat link shows European 0-14 age population (future taxpayers) is flat, 15-24 in decline, 25-49 in decline, 50-64 a slow rise, 65-79 medium rise, 80+ slow rise.

    Ref: EU Member State Population
    http://ukandeu.ac.uk/explainers/the-european-parliament/
    Population by Age Group
    http://ec.europa.eu/eurostat/web/population-demography-migration-projections/population-data

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