Lib Dem Lords vs the Article 50 Bill: Anthony Lester: Government has failed to answer key political and legal questions

The Lib Dem Lords have made some cracking contributions to the debate on the Article 50 Bill. Ahead of its next Lords stages, we’re bringing you all the Lib Dem contributions over the course of this weekend. That’s no mean feat. There were 32 of them and cover more than 30,000 words. You are not expected to read every single one of them as they appear. Nobody’s going to be testing you or anything. However, they will be there to refer to in the future. 

Our Lords excelled themselves. Their contributions were thoughtful, individual, well-researched and wide-ranging and it’s right that we present them in full on this site to help the historian of the future. 

My Lords, after attempting unconstitutionally to rush to the Article 50 exit without legislative authority, the Government have produced this simple Bill, which is no better than a Motion to approve in legislative clothing, and a White Paper that fails to explain the Government’s strategy or to answer the key political and legal questions.

The Government interpret Article 50 as a trap that, once opened, cannot be closed. But its author, the noble Lord, Lord Kerr of Kinlochard, who I am glad to see in his place, has made it clear that when the Article 50 process is triggered, the UK may continue to remain a member of the EU.

The White Paper—perhaps I should call it the off-White Paper—contains statements worthy of Dr Pangloss, George Orwell and Humpty-Dumpty. It claims that the UK’s constitutional arrangements make us,

“the world’s most successful and enduring multi-nation state”.

Tell that to the Celtic parts of our disunited kingdom. According to the Prime Minister,

“after all the division and discord, the country is coming together”.

That is fake and false news. The referendum and its aftermath have been an agent of fracture, not of healing.

The White Paper says that it sets out,

“how the Great Repeal Bill will ensure that our legislatures and courts will be the final decision makers in our country”.

It does not say how that will be done. The Government say that they will,

“bring an end to the jurisdiction”,

of the Luxembourg court in the UK. They do not say how that will be done.

The Government say that they will continue to work with the EU to preserve UK and European security, and to fight terrorism and uphold justice across Europe. That must mean the European arrest warrant, and EU databases and information exchange systems. They do not explain how that can be done without the supervisory jurisdiction of the European Court of Justice—for example, while there are transitional arrangements, or where cross-border issues arise with the Irish Republic. I am so glad that the noble and learned Lord, Lord Keen of Elie, is listening, because he can advise the Minister how to deal with this by way of reply.

Will the British courts be instructed to follow and apply the ECJ’s case law or not? Will that be the ECJ’s existing or future case law? Suppose Mrs Smith claims equal pay under the Equality Act. She wants the Act to be read compatibly with judgments of the ECJ, interpreting EU equality law. After we leave the EU and end the ECJ’s jurisdiction, what will our courts and tribunals do? Will they be permitted to apply the ECJ’s case law? Will that be the law as it stood when we left the EU or developing law? The Government say that they will convert the body of EU law into our domestic legislation and,

“will ensure the continued protection of workers’ rights. This will give certainty and continuity to employees and employers alike, creating stability”.

What do the Government expect our courts and tribunals to do before this statutory conversion happens? What about the effect on rights of parties with pending cases before the ECJ?

The Government treat the advisory referendum as binding and claim its outcome requires them to take us out of Europe willy-nilly, even if they fail to get the deal they want. No deal, they say, is better than a bad deal. However, the White Paper is silent about the political and legal consequences if there is no deal. The Bill needs to make it clear that the UK will leave the EU at the end of the Article 50 process only if and when Parliament has legislated either to approve the terms of a withdrawal agreement or to authorise withdrawal in the absence of any agreement. We need an assurance from the Government that they will not use the rights of our fellow European citizens as a bargaining chip here and abroad.

Despite the Government’s threats, I have no doubt that we in this House will do our constitutional duty and enable the elected House to do theirs. Unless we think again, I regret that our modern destiny will be as an offshore island, semi-detached from Europe—a once-great nation that lost an empire and failed to find a new, modern identity in Europe.

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