Tuesday’s vote in the House of Lords on the European Union (Notification of Withdrawal) Bill is unlikely to achieve much, for two reasons. Firstly, the amendment is so badly worded it may actually not mean much. Secondly, it is likely to be overturned anyway.
The amendment inserted at Report Stage calling for Parliamentary approval of any deal with the EU is a curious provision. It was clearly not drafted by a lawyer, or if it was, not a constitutional lawyer. Perhaps they got a conveyancing solicitor to do it pro bono.
I’ve drafted a bit of legislation in my time – not much, admittedly, but I do know how to draft a bill. The key thing is to obtain clear instructions as to what the proposer is trying to achieve. Clearly the proposers here wanted to block Brexit through the side-wind of a vote in the Lords, should a deal with the EU be struck. The Commons would be likely to approve any deal reached by the government.
The trouble is that the amendment doesn’t do that. New clause 2(1) assumes that there will be a deal. Given the anti-British hostility of the European Commission and Parliament, not to mention Chancellor Merkel (who is arguably less pro-British than her predecessor, our ‘community partner’ Adolf Hitler) a deal seems improbable. If there is no deal, under Article 50(3) of the TEU, we simply cease to be a member of the EU.
In that event new clause 2(1) becomes mere surplusage, as we lawyers say. That’s a fancy word for a waste of paper. There would nothing on which the clause, if enacted, could bite.
The proposer tries to get around this with clause 2(4). This purports to require the approval of both Houses to a decision by “the Prime Minister” not to strike a deal. There are two huge problems with this clumsily worded sub-clause.
Firstly, it’s constitutionally illiterate. The UK is a unitary state with Cabinet government. Any such decision would be referred to Cabinet. If the Cabinet endorses the PM’s recommendation not to accept the proposed terms sub-clause 2(4) has no application. Put shortly it bites on the wrong decision-maker.
Secondly, the structure of Article 50 is that the decision is taken at the outset. Once notice is given, that’s it. No further decision is required by either the PM or the Cabinet. The draftsman seems to have assumed a decision which need not be taken. The technical legal term for this sort of drafting is “bollocks”.
The reason for this sloppy, back of an envelope drafting becomes clear when Parliamentary procedure and the politics of the situation are considered. After Third Reading the bill will enter the ‘ping-pong’ stage, which will start with Commons consideration of Lords amendments. Both Lords amendments are likely to be chucked out and the indications are that the Lords will not insist on them.
Since the amendment was never intended to become law no great thought needed to be given to it. If it does by some chance become law it can safely be ignored, as it doesn’t work anything. We can go ahead and give notice under Article 50. There will be some time-wasting, pointless negotiations, which will break down, and that will be that. We leave after the expiry of the notice.
The So-Called Hunting Act Case
Ironically it was a silly decision, with respect, by the House of Lords in its judicial capacity which led to this situation. The case was called Jackson v. Attorney-General. I was involved in the very early stages, in two ways. I drafted the original Hunting Bill for the RSPCA, in such a way as to avoid a constitutional crisis. A left-wing lawyer called Tony Scrivener QC, a nice chap, who has since died, took over from me and ‘improved’ my draft to such an extent that the bill was chucked out by the Lords, and rightly so.
Secondly I was consulted informally about the inevitable legal challenge which followed. The Labour Government recklessly invoked the so-called Parliament Act 1949, which purported to amend the Parliament Act 1911, an idiotic piece of legislation rammed through by the German agent David Lloyd George in the hope of provoking a civil war in Ireland which would prevent Britain from going to the aid of France and Belgium when they were invaded by our community partner the Kaiser.
The House, desperate to uphold the Hunting Bill, managed with respect to persuade themselves that the Commons could unilaterally amend the Parliament Act. If that is right the Commons can get rid of the Lords without their consent. The Lords have meekly submitted to this unconstitutional nonsense and as a result have given the game away.
Calls for Lords reform will no doubt intensify. The trouble is that no-one is calling for sensible reform which would actually work and maintain the primacy of the Commons. If you elect the Upper House the Commons becomes a junior chamber, however you structure things. If you abolish the Upper House you end up with a unicameral legislature, which would be disastrous. We would get even more idiotic legislation than we do now. There would be no end to the stupidity.
The answer is to undo the change (reform is too strong a word) introduced by that fool, no offence intended, Tony Blair. The overwhelming majority of peers backing this silly amendment were ersatz life peers, mostly superannuated party hacks like Michael Heseltine, with respect (he’s actually quite a nice chap). Life peers aren’t proper peers. All we need to do is to bring back the hereditaries, who would have backed the people, and phase out the lifers, i.e. stop the creation of new life peerages.
One thing the Lords did get right this week, however – once we leave the EU the treaties cease to apply to us. We won’t have to pay the b…….s a penny.