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.