When I spoke in the Second Reading debate on the EU Referendum Bill in 2015, I noted that peers were not so much focusing on the content of the Bill as rehearsing the arguments they proposed to deploy in the referendum campaign being sanctioned by the Bill. I sought to address the Bill from the perspective of the constitution. I also raised the case for considering a threshold requirement in the referendum. In the event, both front benches showed little interest. They were concerned principally with getting on to hold a referendum.
When the Second Reading of the EU (Withdrawal)(No. 5) Bill was debated in the House yesterday (4 April), there was a similar tendency for peers to discuss the merits of Brexit – it was either a disaster for the UK or a wonderful opportunity – and ignore the provisions of the Bill. There were various exchanges about the sagacity or otherwise of the former Governor of the Bank of England, Lord King of Lothbury. It was not clear how this related to the purpose of the Bill. In my speech, I was concerned to address the constitutional novelty of the Bill, in that it represents an attempt to wrest control from government of policy. With the measure, Parliament is not reacting, but directing.
The Bill of Rights 1689 established that the crown could no longer legislate, or suspend laws or raise taxation, without the assent of Parliament. Parliament did not assume responsibility for generating public policy, but looked to the Crown to do so. Parliament could say no, be it to legislation or taxation, but the onus for bringing forward measures continued, and continues, to rest with the executive. That underpins our constitution and it ensures accountability. Government is accountable to Parliament and, through parliamentary elections, to electors. “We are in danger in engaging in an exercise that, like referendums, is strictly speaking irresponsible. With referendums, there is no means by which electors can hold themselves responsible for the outcomes. Similarly, with policy determined by a transient majority of parliamentarians. There is no single coherent body that stands before the electors to be held responsible for the policy.” I argued that we need to raise our gaze beyond the immediacy of a toxic and confused debate and focus on the consequences for our constitutional arrangements.
I was gratified that, in concluding the debate, Lord Rooker, who is taking the Bill through the House, said “One of the early speeches that made me think was the very sharp speech of the noble Lord, Lord Norton of Louth. There is a lesson for us all in what he said not just about this Bill but beyond it about changes. I was really taken with that..”. He was really the only one to engage with what I said. Others were too concerned to explain why they were right on Brexit and those taking a contrary view were wrong. In opening, I said that proponents on both sides of the Brexit debate “tend to lack not only balance, but also self-awareness.” The debate I fear rather reinforced my observation.