My Lords, I thank everyone who has been here for what has been a most extraordinary experience. There are some people not in the Chamber who we should also thank. Those in the Public Bill Office and the Printed Paper Office have enabled us to deal with the Bill in an unusual way. They have worked, along with the doorkeepers, above and beyond the call of duty. On our side, to be personal for a moment, we have had in our office Dan Stevens on the content and Ben Coffman keeping our wits together. I know that it was bad news for noble Lords moving amendments that they are so effective, but for our side it was great, and I use this moment to thank them. The work of my noble friend Lady Smith and my noble and learned friend Lord Goldsmith has been superb over this and I think the whole House will thank them for what they have been able to do. We thank the Minister, of course, and I think we are going to hear from him.
My Lords, I second everything that the noble Baroness, Lady Hayter, has said and I add my own thanks to all those who have co-operated so well to ensure that the Bill has passed successfully, especially the noble Lord, Lord Rooker. I thank my leader, my noble friend Lord Newby, and my Chief Whip, my noble friend Lord Stoneham. I think we have had an excellent experience in the passage of the Bill.
My Lords, I first add my thanks to those expressed by the noble Baroness, Lady Hayter, and others to the staff of the House, who have worked incredibly long hours—including quite late last night—to process all the different stages, amendments, et cetera. I also personally pay tribute to my officials, who have also worked extremely late—particularly the legal ones, who have had the impossible job of explaining complicated legal constructs to me, a simple engineer, so that I can, I hope, communicate them to the House. They have done a sterling job and I am incredibly grateful.
The Government cannot support this Bill. I quite agree with the point made by the noble Viscount, Lord Trenchard, that it brings delay and uncertainty. I would add that it undermines our efforts to renegotiate the withdrawal agreement and the political declaration and aims to tie the Prime Minister’s hands when he is seeking to secure the best possible Brexit deal. However, as I reiterated to the House yesterday, in line with assurances made by the Chief Whips in both Houses, if this Bill completes its remaining stages it is the Government’s intention that it will be ready to be presented for Royal Assent.
I hope it will help the House if I respond directly to some of the points raised by noble Lords throughout the discussion. I recognise that we are now at Third Reading, so I hope noble Lords will forgive me if I take some time to address some of the points—
I apologise—perhaps the legal officials did not explain it to me clearly enough. I thank the noble Baroness for her clarification.
My noble friends Lady McIntosh of Pickering and Lord Hailsham raised concerns about whether the Government would request an extension but then vote against it in the European Council. I reiterate, as we have stated many times, that the Government have been clear that we will of course adhere to the law. Noble Lords have the text of Clause 1(4) in front of them and can see what it requires. The noble Baronesses, Lady Deech and Lady Falkner of Margravine, and my noble friends Lord Forsyth of Drumlean and Lord Leigh of Hurley have raised the prospect that the extension could come with conditions. Noble Lords are well aware of my position, which is of course that the Bill hands powers to the European Union, and it is true that the Bill, as drafted—
I am most grateful to my noble friend for answering a slightly different question from the one I put. The answer that I think he wishes to give, as I understand the legal position and as the noble Lord, Lord Kerr, explained earlier, is that the UK Government will not be present in the room. My question was whether the United Kingdom will veto its own application for an extension. Perhaps my noble friend can confirm for the record that the United Kingdom Government will not be in the room when the vote is taken, and therefore the situation I asked him to elucidate on would not arise.
I thank my noble friend for her questions, but she has had the answer that I am going to give her on this subject. The Government will abide by the law. Noble Lords have the text of the relevant clause in front of them and no doubt lots of great legal minds can spend a lot of time advising noble Lords of the legal intent of it.
As I said, the noble Baroness, Lady Deech, my noble friends Lord Forsyth and Lord Leigh of Hurley, and the noble Baroness, Lady Falkner, raised the prospect that the extension could come with conditions. Noble Lords know my position, which is that the Bill hands power to the European Union. It is true that the Bill as drafted makes no provision for the event that the EU attaches conditions to that extension. However, during any extension the UK would remain a member state. The noble Baroness, Lady Ludford, noted that Article 50 does not give the EU any special power to impose conditions which would cut across those member states’ rights. The most important point, however, is that an extension is objectionable in itself because it delays the point at which we can satisfy the will of the people as expressed in the referendum.
While the previous extension, which was agreed in April, contained political statements reflecting the EU’s expectations of how the UK might act during the extension period, noble Lords, having no doubt studied the decision of the European Council at some length, will note that these sat outside the central, legally operative provisions of that decision and did not amount to conditions. The phrase which says that this extension,
“excludes any re-opening of the Withdrawal Agreement”,
sits in the preamble, not in the decision itself. That difference is important, because it means that this is not a legally binding condition. Of course, it is precisely because there is a difference that the Government have been able to reopen the negotiations and are seeking, as noble Lords are aware, to remove the undemocratic Northern Ireland backstop.
My noble friend Lord Trenchard and the noble Baroness, Lady Deech, asked what would happen if the EU offered a longer extension at a time when the Commons is not sitting for the next two days. Would it be unable to reject it? As a matter of fact, as drafted, the legislation means that the House of Commons cannot reject a longer extension if it is not sitting. The only way to rule out an unacceptably long extension is to reject the Bill, which is why we have opposed it.
Finally, my noble friend Lord Forsyth raised questions about the Kinnock amendment. The House has taken a decision on this but let me be clear about the Government’s position. The amendment is confusingly drafted and contradictory to the aims of the rest of the Bill. It says that the purpose of any extension is to pass legislation to implement a deal when, under the Bill, the extension is being sought only because there is not an agreement. The Kinnock amendment’s deficiencies are such that its effect is therefore rendered wholly unclear.
I have detained your Lordships long enough.
I thought that would get a cheer.
We have heard many concerns raised about the Bill. However, more fundamentally, the issues at play here are not just technical. This is about seriously undermining negotiations that could achieve a deal before 31 October, frustrating the referendum result and stopping Brexit.
My Lords, I second everything that was said from the two Front Benches on this side in thanks to everybody. I have just been the messenger from the Commons, intervening occasionally, because these are unusual circumstances. I certainly thank everybody who has been involved.
At about 1 am the other day, I was quite looking forward to the debate, because I had almost got my second wind—it was just like the old days in the Commons. Then, of course, it all went quiet and packed up. Genuinely, I thank everybody who has participated. I have to say that we have rewritten the conventions, not the least through the seven-minute speech we have just heard from the Minister. That should have been made as a Statement or in the wind-up of Second Reading; it was completely inappropriate under the rules of this House to do it under the Motion that the Bill do now pass.
Having got that off my chest, this is not the end, because our procedures will change as a result of the Bill. Things will happen differently. That may be regrettable, it is true, but precedents have been created during the Bill’s passage, some of which we may come to regret, but I thank everybody who has participated.
House adjourned at 3.36 pm.
Clause 1: Duties in connection with the withdrawal of the UK from the European Union
1: Clause 1, page 2, line 14, leave out from “2020” to end of line 20
I mean that seriously. However, it may be of assistance to your Lordships if I explain why I have tabled this amendment. It arises from an exchange we had in Committee when my noble and learned friend Lord Mackay of Clashfern queried why the letter the Prime Minister is required to send under the Schedule to this Bill did not include a reason. We had an exchange about how, if you had to have a reason, surely that would be a condition. He said that the reason is in the Bill.
The reason is indeed in the Bill; it is the bit I want to take out—page 2, line 14, from “2020” to the end of line 20. I am not sure how many of your Lordships have studied this and thought about its implications. It is written in language which makes it less easy to understand, but it is essentially saying that the letter has to be sent,
“in order to debate and pass a Bill to implement the agreement between the United Kingdom and the European Union under Article 50(2) of the Treaty on European Union, including provisions reflecting the outcome of inter-party talks as announced by the Prime Minister on 21 May 2019, and in particular the need for the United Kingdom to secure changes to the political declaration to reflect the outcome of those inter-party talks”.
It means we are asking the Prime Minister to send a letter saying not only that he wants to debate the May deal and the subsequent matters that were agreed between the parties but that he intends to pass a Bill, when he has made it absolutely clear that he is determined not to do that. More particularly, for those Members who have argued about the supremacy of the House of Commons, it is a deal which has been rejected by the House of Commons on three separate occasions.
Here we have a piece of legislation which, by agreement between the Front Benches, is being given safe passage—I certainly do not support the Bill but I do not wish to delay it, if that is what the Government want—but what on earth is going on with the Government? Why have they not tabled an amendment to take this out? It does not reflect their declared policy, nor the view that the House of Commons has taken on three separate occasions.
I therefore went to have a look at the Hansard of the House of Commons to find out how this had got into the Bill. It has done so by accident. The Labour Party’s position in the other place was to abstain on this matter. Its author—showing that some families stick together—was a certain Stephen Kinnock.
My noble friend Lord Cormack says that he is a very good chap. I know we are a broad church, but—.
Stephen Kinnock is quoted as saying on this matter:
“I understand that our position at the present time would be to abstain, but I am not 100% sure of that”.—[Official Report, Commons, 4/9/19; col. 262.]
My noble and learned friend Lord Mackay corrected me, quite rightly, when in Committee I said that the Government had failed to put in tellers for the Division—although I am confused because in my day, only the Government proposed Business Motions and matters of that kind. However, it was of course the promoters of the Bill who failed to provide tellers for the Division, which is how this has ended up in the Bill.
We therefore have a provision in that Clause of the Bill which the Labour Party did not want—it was going to abstain on it—and the Government cannot possibly have wanted. I am as good as my word—I said that I would not seek to delay the implementation of this legislation, if that is what has been agreed between the parties—but that strikes me as extraordinary. I did not table an amendment in Committee, which in the normal way I would have done, because I expected the Government to put down an amendment to deal with this, and they have not done so. I say to my noble friend that we would be very grateful indeed if he could explain why the Government are leaving in a Bill which they are proposing to support, a provision which requires the Prime Minister to write a letter for the purpose of giving an undertaking to debate and pass a Bill to implement the so-called May compromise agreement, including the discussions that took place between the previous Prime Minister and the Labour Party, which include giving assurances about regulatory requirements and the rest. It seems extraordinary, and that is the reason behind the amendment, which I beg to move.
My Lords, it is important that the Bill goes through as it came from the House of Commons, and I say that for one reason above all others. I believe that this Kinnock amendment gives an opportunity to bring to a seemly end the wrangling and the disputes that have taken place.
There are many in all parts of your Lordships’ House who would have supported the Theresa May deal. That was made plain in debate after debate. We never had the opportunity specifically to divide on it, but it was quite clear that a large number of influential Cross-Benchers, and of my friends on the other side of the House and this, would have accepted it. I believe that would have been a sensible decision.
We must remind ourselves that when it came up for the third time of asking in the other House, Mr Boris Johnson, not then the Prime Minister, voted for it, Mr Rees-Mogg voted for it and the Government in their entirety voted for it. I know that there has been a great clear-out of the Government, but it is entirely reasonable that, having had a chance to reflect after a change of leader and seeing the stark reality of falling off the cliff of no deal, we should have a chance to revisit it. That is not least because my noble friend the Minister—I am delighted that he is on the Front Bench at the moment—has repeatedly said this very week how hard he had fought to get the May deal through. Indeed he did, and I gave him constant support throughout those debates.
Therefore, this is no backtracking. It is a recognition of what we can do to bring this long, three-year saga to a decent end. Then we can move forward to a general election in due time, having agreed with our friends and allies in the European Union the terms of exit. I remind noble Lords in all parts of the House that, to use words I have used before, this is only the beginning of the beginning: there are many long months and years of negotiating ahead, but it would be far better to negotiate from a base of amity and accord than from a base of discord. That could and indeed would be the case if we came out without a deal, because acrimony would be the prevailing emotion, and that is not a good thing.
I hope that my noble friend Lord Forsyth will not have succeeded on this occasion in seducing your Lordships with his silver tongue, and I oppose the amendment.
My Lords, yesterday I raised the issue of the opportunity that rests within the political declaration for a solution to the problem which the country faces. The offer from the Commission is still open for the Government of the day to hold discussions and negotiations to find a way through on the backstop, linked to the political declaration. I asked the Minister twice yesterday why the Government have not, as yet, taken up the opportunity to embark on a negotiation along those lines to try to find a way through, which in turn would link to the deal negotiated by Mrs May.
If, as the noble Lord, Lord Forsyth, wishes—he has spotted this—we take out this provision, that prevents that opportunity to take this forward. Those of us who are looking for a way through, who have been prepared to shift our ground to a degree to find an accommodation to try to get some healing of the divisions which exist, should vigorously oppose what he presents to us. We should ask the Minister and the Government to pick up the opportunity offered by the Commission to negotiate on the political declaration and find a way forward. Then, in turn, we should get the Bill through the House very quickly today as the basis for moving forward.
My Lords, I support my noble friend Lord Forsyth. I am rather surprised at my noble friend Lord Cormack, because he has always been a great champion of the revising powers of this Chamber. When a Bill comes before us containing a clause that is clearly a complete mistake and which the proposers did not intend to be there, surely it is our job to send it back to the Commons, which has already organised to accept Lords amendments on Monday. The Commons can then accept my noble friend Lord Forsyth’s amendment, which will go through anyway. It will not delay the Bill or make the slightest difference; in fact, it will make the Bill better than it is already. It is quite extraordinary that, when a mistake like this has been made and is widely acknowledged by everybody as such—it happened because the Bill’s proposers did not put in tellers; that seems a bit amateur but there we are, that is what they did—we are not in a position to put the Bill right and concur with the wishes of the other place, which will pass the amendment so that nothing will change in terms of timing or anything else. I cannot understand why my noble friend Lord Forsyth’s amendment is being resisted in any way.
I seem to have become very swiftly a Member that this House does not want to hear from. That has been confirmed because this House does not care for certain inconvenient truths—or Trues. In my 22 years of service in this House, first in the usual channels and then having the honour of being a Member of the House, I have never made it my practice to comment publicly on the usual channels’ discussions. I do not do so now. The only thing I will say, which should be placed on record, is that at a certain significant hour in the small hours of Thursday morning, it was my understanding that this amendment would, by agreement, be removed. That was clearly a misunderstanding.
My Lords, I would have preferred not to see the Kinnock amendment in the Bill, whether it was a mistake or not. As the noble Lord, Lord Kerr, pointed out in Committee, it is not open to the European Union to impose conditions on an extension, and this amendment seeks to remove the provision that suggests that there could be conditions. It is certainly not possible for the European Union to impose conditions on the conduct of the British Government during any extension. The words of the Kinnock amendment that this amendment seeks to remove are so woolly as to be meaningless. They refer to the outcome of cross-party talks, which was uncertain; indeed, the talks were abandoned. Along with the Bill’s promoters in the House of Commons and here, I believe that the words of the Kinnock amendment would have no legal effect.
To the noble Lords, Lord Cormack and Lord Brooke of Alverthorpe, I say this: there is nothing whatever in the Bill as it stands to prevent the negotiation of a deal by the Government, if it were negotiated and passed through the House of Commons. The central point is that we have to live with the Kinnock amendment. We need to vote against the amendment in the name of the noble Lord, Lord Forsyth, because we are under the time constraints of Prorogation. Whatever the noble Lord, Lord Hamilton, says about the opportunity that may be there on Monday morning, we cannot foretell what may happen in the Commons on Monday morning if we send back amendments. I therefore urge the House to reject the amendment, which will not affect the central thrust of the Bill in any way.
So tolerant of democracy.
I support the amendment suggested by the noble Lord, Lord Forsyth, for one reason only: there is not a small business woman or small business man in this land who has not had it up to here with this place and the other place. They just want everybody to get on with it and give the businesses of the land—which generate the profit, pay the tax and build the schools and hospitals—the chance to get on and make money, employ people and pay tax. They hold us all in very high disregard at the moment—all of us. The political class has let down this country and business, and that is not a partisan point. We should all, of every party in both places, look into our souls about what we have done to this country in so many ways. If these people, who hold us in such high disregard, thought we spent a Friday afternoon accepting the fact that we just knocked through on the nod something factually inaccurate, they would think we were even worse than they do right now.
I thought the point made by the noble Lord, Lord Brooke, was excellent. The chance of coming together and healing—he used that word, and I thought it was excellent—has a lot of merit in it, but we surely cannot knowingly vote for something that is factually wrong. On that basis I support the amendment—I do not think it would hold up anything on Monday—but after this debacle is over we ought to go from this place and just start trying to respect the optics: the businesses, the businesswomen and businessmen, the good people of this country, have had enough of us. If we do not start communicating with them as to why we are on their side, God help us.
This amendment proposing to delete what is in the Bill strikes me as rather unnecessary, apart from the fact that we have difficulty with time. In my view, the amendment proposed by Mr Stephen Kinnock—a distinguished member of a distinguished family—was perfectly in order. The fact that, though the procedures of the House of Commons, it went into the Bill and is in the Bill we read for a second time, passed in Committee and are now considering on Report strikes me as perfectly in order. It makes the important distinction, which I tried to make yesterday, between the withdrawal agreement and the political declaration.
It has always seemed to me that the Irish backstop has the character of a future relationship. What is objected to is the fact that it is said to be permanent and so on. That is part of the future relationship, and therefore I have always felt that the backstop itself is not an objection to the withdrawal agreement as such. There may be other objections but, so far as the backstop is concerned, the aspect of it to which objection has been taken is as part of the future relationship. I would therefore welcome the idea of the House of Commons having a discussion separating out these two, which the Kinnock amendment does with complete accuracy. I do not for a minute believe that it does not make sense; it is perfectly readable and understandable, even for lawyers. In my view, therefore, this should stay in.
My noble friend says he expected the Government to object to it. The Government are not for the whole of this Bill. The whole thing is a Private Member’s Bill by a group that was not part of the Government as such. It may have included Members who were previously in the Government, but at any rate it is not a government Bill. The Government therefore do not care for it at all, so I do not know why they should have to propose an amendment to part of it. It is perfectly right that they had not done so. I understand they have been advised that it is meaningless. I do not agree with that, and I do not think anybody who reads it will think it is meaningless; it is perfectly clear what is wanted. It is the basis on which an extension is asked for.
According to the formulation of the noble Lord, Lord Kerr, no conditions are attached. However, if you apply for an extension the European Union will require a reason—which seems to be common sense—and, if you give a reason, good faith suggests that that is the reason, and therefore it promotes the likelihood that something may suddenly emerge which distinguishes between the political formulation and the withdrawal agreement, which is the vital thing to get through in time.
Perhaps it would be helpful for the Committee if I said a few words about the amendment. Both my noble friends Lord Forsyth and Lord True are essentially correct, except in one important detail. I should say to my noble friend Lord True that even if the rest of the Committee does not want to hear from him, I do, because he speaks a lot of good sense on these issues.
It is true that initially, during the fast-moving events at a late hour on Wednesday evening, it was our intention to ask the House to remove this amendment. However, since then we have looked at it further. My noble friend Lord Forsyth said that the Government do not support this Bill and do not favour it. We think it is flawed and that this Kinnock amendment tries, but does not succeed, to make it even worse. The amendment is confusingly drafted, is contradictory to the aims of the rest of the Bill and its deficiencies are such that its effect is rendered pointless.
I always hesitate to disagree with my noble and learned friend Lord Mackay but my strong advice is that this amendment is legally inoperable. It appears contradictory with other parts of the Bill because it requires an extension to pass legislation to implement a deal, when, under this Bill, the extension is being sought only because no deal has been agreed.
For all those reasons, as I have said, we think it is inoperable and largely pointless. I am happy to say that it was our original intention to take it out—we had discussions to that effect and so my noble friend Lord True is correct, as always—but since then we have looked at the matter further.
My Lords, I am grateful to the Minister for helping the Committee at this stage by explaining the Government’s position. We do not support the amendment. In short, given that the Minister has said the Government’s view is that the Kinnock amendment is legally inoperable, it does no harm to keep it in the Bill. I do not know why noble Lords are laughing because the critical point, which was made by the noble Lord, Lord Cormack, is that the Bill has to pass. We do not have time to send it back to the House of Commons given the guillotine of prorogation imposed by the Prime Minister.
My Lords, in principle, the noble Lord, Lord Forsyth, makes a seductive case—in principle. The noble Lord, Lord Cormack, made the point that the House of Commons might want to look at it again. I do not see any contradiction in the fact that they have rejected the agreement three times. It is their choice—the meaningful vote is theirs, not ours—and it is a soft Brexit. It is Brexit in name only—there is no question about that. They are free at any time they want in the Commons to fix their business to do it. It is nothing to do with us because we are not part of the meaningful vote process. It is not our job to manipulate the way they organise their business on an issue that we have nothing to do with.
It grieves me that we cannot do our proper scrutiny. There is a breakdown of trust because the Government say that there will be time in the Commons on Monday to deal with this Bill. Any amendments sent down there can be amended and something in lieu can come back. Forget the idea that this is a sound deal. Trust has broken down; the prorogation guillotine is there; we have no choice. I therefore ask the noble Lord, Lord Forsyth, to withdraw his amendment.
Oh my goodness. I have to say to the noble Lord, Lord Rooker, for whom I have great admiration, that I am struggling with that response because the words say that a letter should be sent by the Prime Minister requesting an extension in order not just to debate but to debate and pass a Bill. He has to send a letter saying he wants an extension because he is planning to pass a Bill to implement the May agreement, which has been rejected three times—the noble Lord, Lord Rooker, is absolutely right—and put in place the results of the discussions, on which I do not have information, other than what I have read in the newspapers. That is anticipating the decisions by the House of Commons.
My noble friend Lord Cormack said that he supported the May deal and that there are many people who supported the May deal, but the May deal was rejected by the biggest vote ever in the other place. The noble Lord, Lord Brooke, made a very good point about the political agreement and having discussions. He may be right in his criticism that not enough has been done to take that part of the thing forward. Taking out this defective part of the Bill does not prevent discussions taking place.
My noble friend Lord Hamilton made a crucial point that if this provision is deficient—and everybody agrees that it is deficient—what is this House for if not to deal with those matters? The noble Lord, Lord Rooker, said there is a matter of trust. I am most grateful to my noble friend Lord Callanan for his honesty and transparency. We were under the impression that the deal agreed between the Front Benches would result in this matter being taken out—he has confirmed that—and we are now being told that it is not being taken out because the legal advice is that it would not fly anyway, so we put into the Bill something which is legally deficient; that is okay, and that is what this House has come to. We do that because we do not believe that the Government will be as good as their word when the people who were on the other side of the agreement have not been as good as their word. I hope that the Government are rather better than that. We have a duty to pass legislation which is proper. I am not a lawyer, but the noble Lord, Lord Marks, told us that it would have no legal effect whatever, and my noble and learned friend Lord Mackay of Clashfern—not Drumlean —gave us the opposite advice, so it would appear that there is at least some doubt about whether it would have legal effect.
My noble and learned friend Lord Mackay said it was not meaningless and the noble Lord, Lord Marks, said he agreed that—I hope I am not pushing too far here—it should not be there but because it is meaningless, it could stay there. The noble Lord, Lord Jones, told us that the entire country is sick to death of all of us. On that, I am sure we can all agree.
I am going to ask the noble Lord this question because he has questioned the comments that have been made about trust. In that context, does he want to comment on what the Prime Minister said this morning, which was that he will not seek an extension even if it is passed in law? Does that change his view on whether a question of trust is at play here?
What he says he will do has nothing whatever to do with the law of the land as decided by both Houses of Parliament. I would expect every single parliamentarian to obey the law of the land. In passing the law, there is a responsibility on us to ensure absolute clarity about what it means and what it does. The noble and learned Lord’s party was not prepared to vote for this matter. It was going to abstain on it, and it was put into the Bill because Tellers were not appointed by the amateurs at the other end who had taken control of the agenda. For this House, and in particular for the noble and learned Lord with his vast experience, to suggest that we should leave it in while making that point makes my argument for me.
In response to the noble and learned Lord, Lord Goldsmith, yesterday the Minister—the noble Lord, Lord Callanan—gave an assurance that the Government would fully comply with this Bill once it became an Act. Not only would it get Royal Assent but the Government would comply with it. However, almost simultaneously the Prime Minister said that he would be dead in a ditch before he would request an extension. Does the noble Lord, Lord Forsyth, think that we should rely on the Minister’s assurance on behalf of the Government while the Prime Minister says something completely different? Does that not undermine trust not only in the Prime Minister but in the assurance that we got from the Minister yesterday?
If the Prime Minister is dead in a ditch, he is not the Government, and at this stage in considering these proceedings we are talking about ensuring that we have clear and effective law. That is why I tabled this amendment. My noble friend Lord Callanan did not really give me a satisfactory answer, although I appreciated the answer in which he said that the Government had decided that they would not after all take out this measure because they had received advice that it would not have any effect—advice that is contrary to what we have heard from perhaps our most distinguished former Lord Chancellor. Therefore, I am sorry but I do not wish my name to be associated with defective legislation passed by this House and I intend to test the opinion of the House.
Clause 5: Interpretation, commencement, extent and short title
2: Clause 5, page 3, line 39, leave out subsection (5) and insert—
“(5) This section comes into force on the day on which this Act is passed.(5A) All other provisions of this Act come into force on such date as the Secretary of State may appoint by regulations made by statutory instrument, following the first general election to take place in 2019.”
My Lords, I start by saying that when an agreement is reached by the usual channels, in my view that is an agreement which must hold. Not only was an agreement made in the usual channels but, in the course of that, I gave personal assurances that no effort would be made to delay the progress of this Bill. I stand by that assurance. I did not take any part yesterday. I hope this will not be made an occasion for prolonged debate; the debate we just had took no more than three-quarters of an hour. It is up to Members of the House whether they are interested in the remarks I am about to make, but I hope that this will not be the occasion of a very prolonged debate. Without being discourteous to any Member of your Lordships’ House, if it appears that it is tending in that direction, I will rise—or support the noble Lord, Lord Rooker, if he rises—to attempt to bring the debate to a close without any need for the repugnant nonsense of the closure Motions used on Wednesday.
I wish to bring one point of principle to this House and ask the House to determine the matter publicly. I shall be pressing this amendment to a Division in which each and every Member of this House will have to declare publicly their position on the simple proposition that I put before them, which is that the Bill, which will be an Act when it passes from this House and goes to the other place, should not come into force until the British people have had a chance to decide the matter in a general election.
Yesterday there was talk that the Labour Party might accept a general election and now there is not. I am not particularly concerned about who said what when. I agree with all those who say that somehow we need to bring a conclusion to this matter. In the history of our great democracy, in the times of greatest crisis and doubt, that has been done, is done and—please God—always will be done by recourse to the people of this country to ask them to decide the matter in a general election—yes, in a general election, not in some second referendum, a first referendum or a third or a fourth cooked up by a majority of the time with the power to decide the question.
Let the people decide who governs. There is plenty of time if the parties stick to the opinions we heard and as the leader of the Opposition has been saying all around the country, and as the leader of the Scottish nationalists and the leader of my party have been saying: we want an election. As we all know, there is plenty of time to have an election in October to allow the British people to choose parties that will either pursue the course set out in this Act—which would lie on the statute book and could be implemented by a new Secretary of State one minute after the formation of a Government—or a Government who wish to take this country out of the European Union, as the public have been promised, on 31 October. A general election will enable the people of this country to make that choice, not some cabal in the House of Commons.
Over the years that the noble Lord has been a Member of the House, he has regularly lectured it about its role in relation to the other place. Does he really think that this amendment, at this time, is at all appropriate for a revising Chamber?
My Lords, I absolutely do. There is no purpose in this House if it is not to enable at some point the rights of the people to be sustained. Indeed, the one deliberate and absolute power of this House is that it can prevent the House of Commons extending itself indefinitely. We can require a general election after five years; we cannot in this case. That is an absolute power of this House under legislation. I am making a submission to and through this House to all the parties, and to people on both sides who support them, that this matter should be decided by a general election, not by House of Cards shenanigans on one side or the other—if you ask me, both sides are as bad as each other—as they try to do chess moves one against the other. I totally agree with what was said by the noble Lord, Lord Jones: it is doing nothing to advance the credibility of politics.
I am most grateful to the noble Lord for giving way, because I am examining his amendment, the last phrase of which is,
“following the first general election to take place in 2019”.
If no such general election takes place, what is the effect of his amendment?
I thank my noble friend for giving way, and in asking this question I remind him of the last time that a Government went to “let the people decide”. It was in 1974—which is an interesting parallel that he might not wish to follow. I will ask about the wording, in the opposite direction to the question of the noble Lord, Lord Campbell. The amendment refers to the “first general election” of 2019. Are we expecting to have more than one in 2019?
Notwithstanding what my noble friend and others have said about the amendment not making sense, the noble Lord’s argument is all based on the supposition that a general election can be held before 17 October, when there is a European Council. I am always interested to hear what the noble Lord says, because he has great expertise in these areas, but the Independent today reports that, if the Prime Minister loses the vote on Monday and does not achieve a general election on 15 October, he is going to resign his position. Would the noble Lord give us his expertise on how the provision in the Bill telling the Prime Minister to write a letter will apply if we no longer have a Prime Minister?
Like my noble friend Lord Forsyth on a previous amendment, I am not going to pursue the ifs, buts, whys and whats that we have in every newspaper of this country. I return to the fundamental point of principle. Noble Lords can say that they are voting against the amendment because it is defective for one reason or another, but the purpose of this debate, and of trying to put this amendment down, is crystal clear. It is so that under the Bill the decision to foreclose the United Kingdom leaving the European Union on 31 October should not be taken without the sanction of the people.
Perhaps it would assist the House if one could point out that there has been a general election since the referendum. The Bill is about rejecting no deal, and at the general election in 2017, 53.2% voted for parties that opposed no deal—17.1 million people—and only 14.4 million people, 45.1% of the electorate, voted for the Conservatives, the DUP or UKIP, which would sanction no deal. So the people spoke then, and in the 2019 EU election 44.4% voted for the Brexit or Conservative parties while 54.4% voted for parties that were opposed to no deal, which is what the Bill is about.
Then the noble Baroness should be very confident about supporting my amendment and voting for a general election.
When I spoke after the disgraceful closure of debate on the amendment of the noble Baroness, Lady Deech, I said that we were now in a situation—the public and the world know this—where the Government were not in control of matters relating to Brexit. Power on those matters rests with a majority in the House of Commons. That majority is served—perhaps driven—by a group of people, some of whose names appeared on the back of the Commons print of the Bill, who are taking decisions, thinking up clever wheezes and have now put forward legislation designed to frustrate the will of the people and an Act passed by this very Parliament that states that we should leave on 31 October.
Who are these people? We know who the members of the Cabinet are. We know who the Cabinet Secretary is. We know who gives the legal advice to the Cabinet. We know the civil servants involved. But who are the people who meet and seek to decide the destiny of this country in relation to legislation on Brexit? Who are those behind this Bill and behind the strategy of the remainer group in this country? Where are their names? They must be accountable in the same way as the Cabinet.
I return to the fundamental point—
If the noble Baroness is telling me that those six people are now the new governing group driving remainer policy, that is very interesting—but I rather suspect that others are involved. There may be one or two of them in this House, and I think we should know their names.
My Lords, yet again, my noble friend, despite his distinguished Oxford degree, clearly was not listening. I was referring to those driving the policy of the remainer faction—and the public outside know this to be true—and seizing control of the conduct of our affairs without a general election.
Will my noble friend stop using the term “remainer faction”? He can use “no-deal faction” if he wishes, but the vast majority of people who voted in the House of Commons the other day, all of whose names are publicly listed, did so because they wanted to save this country from going over a precipice. Why should he take it upon himself—this was the point made by the noble Lord, Lord Hunt—to urge this House, which has no validity in these matters, to seek to effectively bring to an end a Parliament that still has almost three years to run? If the Prime Minister is able to persuade the House of Commons to have a general election, I would personally welcome it, but it is really no business of this House to interfere in that.
I would have liked to conclude some time ago, but I have courteously tried to take many interventions. How many more times are the long-suffering people of this country going to be asked to take another delay to what they voted for? Whatever may have happened then or since, on 29 March, they were told that there must be a delay. Now, with this Bill, they are told that 31 October is not enough time and there must be another delay to 31 January 2020. When it comes up to 31 January, how many times will we be told that there has to be another delay? How many times are the long-suffering people of this country going to be asked for delay after delay by those who quite patently want only one thing?
My Lords, I will not give way. I have given way many times. There is a custom creeping into this House, which is becoming more and more like the House of Commons, of constant interruptions and interventions. I have courteously taken a large number of interventions and I wish to conclude my remarks.
I repeat what I said: how many more times must the British people be asked to take a delay? How many more times must they tolerate those who wish to change the policy which Parliament has agreed and the vote that Parliament made, enacted on the statute book, that this country should leave the European Union on 31 October? How much more must they take from those who want this country to remain and want this to stop? There will be a limit to the tolerance of many in this country and I beseech those involved to allow the cleansing balm of a general election so that everyone, whatever their views, can put their case to the people. It is the only way in which this matter will be resolved. I would accept the result of any general election wholeheartedly, as I have all through my political career. I have had to accept general election results that were repugnant to me; that is the essence of our democracy.
Even if this idea is defective—I do not accept that it is—I beg noble Lords to give it some houseroom. Whatever arguments may be made about this amendment, I will press it. All those in this House who do not want to allow the British people what they voted for, and who agree with those in the House of Commons who wish to resist a general election, should march through the Lobby and let their names be counted in the face of history.
My Lords, it may help the House if we are able to curtail this fairly quickly. The noble Lord said at the beginning of the debate that he was going to press the amendment, so we cannot persuade him to withdraw it, which is what we usually try to do. I will make a few comments, then my noble friend Lord Rooker can respond and we can move on.
On the will of the people, there are two ways of doing it: a general election and a second referendum, which the noble Lord has not supported. I will say two things about the amendment, which is close to being a wrecking amendment. In the first minute of his speech, the noble Lord said that it gives an incoming Government the ability to scrap the Act by statutory instrument—which this House, by tradition, never opposes—allowing a Secretary of State to tear it up without the permission of Parliament. This cannot be the right way to treat an Act. The second issue is even more serious and has already been raised. If there is no general election, the whole Bill does not come into force. This seems to be a completely wrecking amendment and I urge noble Lords to oppose it.
My Lords, I spent 27 years in the other place, so I know a little bit about the problems that Members have with the Table Office there. I can absolutely guarantee that this amendment would not be allowed in the House of Commons, because it is a textbook wrecking amendment. I do not propose to say anything else.
My Lords, the House will now adjourn to allow amendments to be tabled for Third Reading. The Public Bill Office will be open to receive amendments for the next 30 minutes. The House will then resume as soon after that as possible and timings will be displayed on the annunciator.
Relevant document: 61st Report from the Delegated Powers Committee
Clause 1 agreed.
Clause 2: Report on progress of negotiations on the United Kingdom’s relationship with the European Union
1: Clause 2, page 2, line 30, at end insert “, including what steps have been taken to ensure that United Kingdom sovereignty has been an essential principle in those negotiations and will be in any forthcoming negotiations.”
My Lords, a week ago, I wrote a letter to the Lord Speaker in which I suggested that in certain circumstances which might occur, such as this morning, the entire House of Lords is ineligible to sit. I do not intend to pursue this point, but I want to explain why it occurs. I think it is important to us.
If the Lisbon treaty is allowed to stand and is not wiped away at midnight on 31 October, we are all, every single man jack of us, in breach of our oath on joining this House because we have allowed the omniscience of Parliament to be reduced by the elimination of the veto which was standing in our benefit until the Lisbon treaty. That has far-reaching consequences which go way beyond us and reach into the Palace and the Crown itself. We need to be aware of those implications. If I am right on that assertion—I have taken it to the Table Office and asked it to think about it, so there must be some professional opinions around—then we would be ineligible to sit today, and it would mean that this Bill cannot pass the House. I am not pursuing that.
What I am going to say is that I think the basis on which we are going forward from here is wrong because we have a situation in which we are facing a choice between remain, the no-go solution and, as came very much into focus in the latter stages of yesterday, the possible resurrection of the May deal. The May deal and remain both carry the same consequence that they would still leave us in breach of our oath. We need to have our oaths restored to us, which would happen if at midnight on 31 October if the Lisbon treaty was wiped away.
The first person we need to be concerned about in that respect is Her Majesty because we have the power of government placed in our hands by the coronation oath which she swore never to diminish, but we have diminished it for her. In those circumstances, do the British public realise they are being asked to consider a situation which might create a position in which Her Majesty would consider it was essential for her to abdicate? If that occurred, would it ever be possible to resurrect the monarch because nobody else could swear the same coronation oath? Let us be realistic about this. My whole criticism of the situation of opposition to no-go at the moment is that we simply have not informed the British public of what is at stake. It goes way beyond this.
We have this wonderful paper called Yellowhammer, which tells us all the dreadful things that will happen if we do go no-go. My secretary has an alternative list that I have complied called the Black Vulture, which is my list of the things that people do not know about which will happen if we do not go no deal. The first is the hazard it creates for the Crown. The second is: will somebody please tell us the truth about the European defence union? This is by far the biggest issue facing the British public and they know nothing about it officially. Can we please have a proper account of what it entails? Is it really true that the Government have entered into private agreements with the European Community that they will, on completion of remain or whatever it is to be, transfer to the European Union in Brussels the entire control of our entire fighting forces, including all their equipment? [Laughter.] Noble Lords may jest, but it has been done and they should check it out. It is too important to ignore. We must know the truth of this. We must have it clear for the whole public to know. I believe it is true, and I think we should be told. I understand that it is intended that the oath of every serving member of our forces will be cancelled and they will be required to undertake a new oath of loyalty to Brussels. I understand that in recent months, we have had a series of people sent from our Armed Forces to create and install the command and control centres to be used for the control of our troops once we have ceased to have any control over their use, application or deployment. It goes beyond this. They are to take control of our intelligence services, the whole core of Five Eyes. They will have MI6 and the Cheltenham monitoring centre, and we will be completely excluded from it under the new arrangements and have no access either to the—
My Lords, I want to ask one short question. I refer the Committee, and in particular the Minister, to col. 1203 of yesterday’s Hansard, in which my noble friend Lady McIntosh of Pickering raised a very important question. She said in the final paragraph of her comments to this House:
“Can we have confirmation today not just that the Government will apply for an extension in the terms of this Bill”—
this is the salient point—
“but will vote for such an extension in the European Council?”.—[Official Report, 5/9/19; col. 1203.]
I would add the proviso: “and will not seek to oppose such an extension”. The Minister was not in his seat when that observation was made. I make absolutely no criticism but it would be very helpful to have an assurance from the Government in those terms.
My Lords, I thank the noble Lord, Lord James of Blackheath, for raising what are obviously much wider issues than are contained in his amendment. The amendment itself is probably not necessary and therefore we will not support it.
I want to make one point about today. From today there are 55 days until Brexit. Anyone who has gone to the Hampstead Theatre recently will have seen the play “55 Days”. I remind noble Lords that it relates to the 55 days between the creation of the Rump Parliament and the execution of the King. I do not think that we are quite in that territory yet but I urge all noble Lords to remember that a clock is ticking. We should get on with the Bill as rapidly as we can today, but I do not think that the amendment would add to it in any way whatever and therefore I hope that the Committee will not support it.
My Lords, it is not clear which Minister on the Front Bench is responsible for the Bill. Is no Minister taking any interest in these affairs at all? The Minister for Exiting the European Union is notable by his absence in the Chamber now, as indeed he was for a large part of the debate yesterday.
The reality is that this is private Member’s business and the Government Front Bench is on strike again, as I said at the end of yesterday’s sitting. It is as simple as that. That is what it is all about.
The noble Lord, Lord James of Blackheath, made a very important speech, which we listened to with care and attention. He raised a lot of serious and important points, but I turn to the nub of his amendment, which is what we are here to deal with. I think we can be guaranteed that almost any potential Prime Minister will seek to ensure that the sovereignty of the UK is preserved, as it has been all along. Therefore, the noble Lord’s amendment would not really add to the Bill and, with respect, I ask him to withdraw it.
Perhaps the noble Lord will permit me to speak, because my noble friend Lord Hailsham brought up a very pertinent point that I raised at the end of what I realise was quite a long speech yesterday. If our Front Bench is not to reply, I cannot comment, but I find it very unsatisfactory that we could be in a position where my own Government apply for an extension and then, in the course of that process, vote against it. I would like a categoric assurance from our Front Bench today that that will not happen.
My Lords, I understand that this matter has followed what has been a sometimes difficult and prolonged debate. I agreed with the Leader of the Opposition and the Leader of the Liberal Democrat party that we would make sure that the Bill was passed by the end of today and sent back to the Commons. As my noble friend indicated, the Government are not in favour of the Bill but we made those undertakings. We will complete them but we are not responsible for the Bill.
I thank the noble Lord. I tabled my amendment because, in everything that has been said so learnedly on this matter, nobody has covered the subject of sovereignty, which is really at the core of the original intention to take back control. Therefore, I am concerned that the public might be asked to give an opinion on this—
We had a very long period of what some people have called filibustering. It resulted in a deal between the Front Benches in which the Opposition Leader gave an undertaking not to use the guillotine or this procedure again. We respected that. We agreed that the Bill would be given safe passage with speed through the House. Does my noble friend not think that it might be more sensible to withdraw his amendment and allow us to proceed with what both sides of the House have agreed to do?
I entirely recognise that fact. My concern, which I am sure the noble Lord will share, is for the understanding of the British public when they have to accept whatever is the final decision. I do not believe they have enough knowledge of the reality of what stands behind the agreements between which they have to choose. That is why I worded the amendment as I did, as the only way to bring this into the discussion today. I thank noble Lords for their comments. I will beg leave to withdraw my amendment but at the same time I make an urgent plea to all who are concerned about this to get the public better informed. They are not well informed.
Amendment 1 withdrawn.
Clause 2 agreed.
Clause 3: Duties in connection with Article 50 extension
2: Clause 3, page 3, line 6, at end insert “unless the offer is anything other than an unconditional extension of time, in which case the procedure set out in subsections (2) and (3) applies.”
My Lords, this is a straightforward technical amendment to plug a gap which I noticed as soon as the Bill was published; indeed, I referred to it in my speech on it. As we know, the Bill mandates the Prime Minister to seek an extension to the withdrawal date provided for in Article 50 in the form of the letter in the Schedule. It goes beyond the earlier withdrawal Bill, known as the Cooper-Letwin Bill, of April. That Bill required the Prime Minister of the day to seek, but not necessarily to achieve, an agreement about extension. Mrs May could have picked up the phone, asked Monsieur Barnier for an extension and then said that on reflection she did not want it. Of course, that is not what happened.
That loophole is closed by the Bill in Clause 3(1) to (3). Subsection (1) says that, if the European Council agrees an extension to 31 January 2020, the Prime Minister “must, immediately” agree to the proposed extension, without qualification or consultation. But subsection (2) says that if “a date other than” 31 January is offered, the Prime Minister may not have to agree; subsection (3) says that if the Commons decided to disapprove the extension offer, the UK does not have to agree it.
I do not know why the two are treated differently. I note that the Commons is given this opportunity to consider the offer if an extension is granted that is not 31 January; it could be 30 January, or December next. But if the extension is 31 January, this is what might occur. Suppose the European Union agrees to an extension to 31 January but attaches a condition—for example, the holding of a second referendum, a payment of billions, settling issues to do with migration, or even a new Prime Minister. The Prime Minister has to accept it immediately, as set out in line 4 on page 3—no consultation, no Commons approval, unlike the provision in subsection (2). My amendment adds to the arrangement contemplated in subsection (1) the same requirement that the Commons should have two days to consider and accept or reject any condition attached. That must be right. I imagine the difference was an oversight, unless the proponents can explain the discrepancy.
I also note, but have not attempted to amend, a difficulty with the meaning of “two days” in subsection (2) and “two calendar days” in subsection (3). They are different—why? Imagine that the European Union offers an extension which is not to 31 January and that this is offered in early October or during some period when Parliament is not sitting. Is Parliament to be summoned to agree the question, or does “two days” mean two sitting days—indeed “Lords sitting days”, whatever they are—as set out in Clause 1? Might Parliament be prorogued to sidestep these time provisions? It is not clear. What is clear is that the Commons should have some power, for two days, to scrutinise and approve any offer of an extension to 31 January in exactly the same way as it is empowered so to do if the date were to be 1 February. That is the purpose of my amendment. I beg to move.
I will make a point that I made in the previous debate in the hope that the Government will respond. I hope they will also respond to this amendment. Clause 3(1) is premised on the basis that the European Council decides to agree an extension. So long as the United Kingdom is a member of the European Union, in respect of a unanimous decision, it is at least possible in theory for the United Kingdom to oppose the extension, despite having applied for one. I seek an assurance from the Government that they will not seek to oppose an extension for which they have applied.
My Lords, I will speak to Amendment 2 as my name is on it. Second Reading yesterday was a fascinating debate with much history covered, as is appropriate at Second Reading. There were some wide discussions of well-rehearsed arguments, often most eloquently expressed. Like many noble Lords here today I had the—I should not quite say—pleasure of listening to the debate on the business Motion the preceding day, which went on until 1.30 in the morning. I can only admire and respect those Members of this House who, having left at the same time as me, at 1.30 am, came back to the House the same morning with such powerful and well-written speeches on a Bill which itself arrived only a few hours earlier.
The speeches at Second Reading were political, of course, but in Committee we come to the business part. This is the time this House should come into its own, looking at the detail of the legislation and offering suggestions to the wording which might have been missed out in the other place. Although the Second Reading debate contained some excellent and thoughtful points, today is when we as a House might take a cold and calm look, away from the politics, and add some value to the Bill.
I recall that yesterday the noble Lord, Lord Hannay of Chiswick, specifically said that the Bill is “rather skilfully drafted”. It may be. I am sure it was done by those with vast experience in such matters, but it was prepared in a huge rush and I understand that one amendment from Stephen Kinnock was included by accident. As I have suggested, there was an almost indecent hurry between the Bill arriving here and Second Reading, so it is more than understandable that noble Lords did not have the full opportunity to reflect on the actual wording and meaning of the Bill line by line, as the noble Baroness, Lady Deech, has said.
There were of course exceptions; I would like to highlight the remarks of the noble and learned Lord, Lord Mackay of Clashfern—and not only his wonderful sentence which from here on in I will try to remember every time I am in a debate:
“I wanted to speak near the end so that I would hear the wisdom of others rather than my own”.—[Official Report, 5/9/19; col. 1212.]
I want to pick up on his observation that Clause 1 seems to identify the reason for the extension. I quote from the Bill:
“The Prime Minister must seek to obtain from the European Council an extension … in order to debate and pass a Bill to implement the agreement between the United Kingdom and the European Union under Article 50(2) of the Treaty on European Union, including provisions reflecting the outcome of inter-party talks”.
I should declare my interests. Although I voted leave, I publicly supported the agreement to which this refers, both in debates in this House and in print in a national newspaper. I am not sure in retrospect that I was right, but I did. Even if people like me were happy that the agreement to the extension was one that we still wanted, what happens if it is not the one we are offered by the EU because of the terms attached, as said by the noble Baroness, Lady Deech? The reason this amendment has been suggested is that it is entirely possible that the EU will only grant an extension which contains new conditions not in that agreement or not currently on the table. As I understand it, the Prime Minister would have to agree these new conditions, and this was not the intention of the Bill as it appears to be drafted.
Some of these new terms might be acceptable and attractive. I put on record to the House that I went to Brussels to meet Monsieur Barnier as part of the all-party parliamentary emergency task force led by Alberto Costa MP to try to persuade him to give citizens of the UK rights in the EU, and citizens in the EU rights in the UK, immediately. We had a friendly meeting for over an hour and he clearly understood the points made by the representatives of both Houses and indeed those of the citizens concerned, but he refused to budge an inch. The EU can dig in when it wants to, as indeed can we. For the record, he has agreed to meet us again in October. If he acquiesces to our requests then that will be extremely helpful, but there may be other requirements that the EU would make, particularly perhaps financial, that none of us would find acceptable. We have to reserve the right for Parliament to review those in the usual way. Accordingly it seems only fair and right that such changes should rather be approved by Parliament under this Bill, and that is the purpose of the Bill. Of course the Bill has to go through the House, but it is entirely appropriate that it carries amendments that your Lordships feel are appropriate.
My Lords, I do not wish to detain the House. I support the amendment of the noble Baroness, Lady Deech. I think she has spotted a loophole in the Bill. I am very surprised at my noble friend Lord Hailsham asking for responses from the Government. This is a private Bill, a piece of private legislation. Like a lot of private Bills, it is—
My Lords, I am surprised that the noble Lord has expressed surprise. Private Members’ Bills go through this House frequently, and not only are the government Front Bench present but they actually respond, normally, to every amendment. I am sure he would agree that, while he disagrees with it, this is one of the most important pieces of legislation that this House has considered in the last year. For the Government to refuse to answer any questions or make any response is an abuse of this House.
I do not want to take us back into the territory that we were in earlier this week, so the noble Lord will forgive me if I do not respond on the abuse of this House, given that the Bill itself has arisen from an abuse of the procedures in the other place.
I am genuinely concerned that we should pass a Bill whose implications people do not realise. I have had no contact with the noble Baroness, Lady Deech, and until I read the Bill and her amendment this morning, I had not realised that there was a real problem here. I was simply making the point that private Members’ legislation, without the benefit of the drafting and the backup of the government machine, is often defective. One of the things this House does is to point that out and to make those Bills sensible and possible to be carried forward.
I understand—and here perhaps I am agreeing with the noble Lord in his intervention—that where the Government have a particular interest in the Bill, it would be perfectly appropriate for Ministers to respond, but it is certainly not right to ask Ministers to comment on the drafting and nature of a Bill over which they have no responsibility.
Would my noble friend accept that the question that my noble friend Lady McIntosh posed yesterday relates not to drafting but to policy? As a matter of policy, this House and the country are entitled to know that the Government will not seek to oppose an extension that they have sought. That is a straightforward question to which Parliament is entitled to a clear and straightforward answer.
We are aware of that because my noble friend told us so not 10 minutes ago. What we are discussing here is the amendment of the noble Baroness, Lady Deech, who has made a perfectly good point about the drafting of the Bill, and I hope very much that the noble Lord in charge of this private Bill will be able to address it.
My second point, in support of the intervention made by the noble Lord, Lord Hunt, is that I understood that the amendment to the Bill made by Mr Kinnock in the other place was considered deficient and defective and was passed because the Government, by mistake, refused to put in Tellers, but I do not see an amendment on the Order Paper to correct that. I would like to hear from the Chief Whip what the position is on that at some stage during these proceedings.
As we are concerned at the moment with the amendment by the noble Baroness, Lady Deech, I very much hope that the noble Lord, Lord Rooker, will be able to explain why she is wrong. My experience is that she is a clever and informed barrister and is seldom wrong. If she is right, this is a real problem with the Bill.
My Lords, I rise in the hope that some EU constitutional law expert may assist me. My understanding was that until the end of the Article 50 period we remain a full member of the EU, with all the rights and obligations of such a member except in instances where we have voluntarily decided not to exercise such rights. Therefore, an extension to the Article 50 period would be an extension of our period as a full member of the EU. Any such extension that was offered with some sort of reduction in those rights would therefore seem to be not an extension of the Article 50 period but something else entirely. Have I misunderstood?
My Lords, I support the noble Baroness’s amendment. She is clearly right, and I hope that will be accepted around the House. The drafting of the Bill treats the European Council’s response to the request for an extension as if it might take one of two forms, but in fact the position is not binary; there are three possibilities.
The first is that the Council will unconditionally agree to the extension. In that case, pursuant to the Bill, the Prime Minister is bound to accept that. The second possibility, which is different, is that the Council might agree to the extension until the end of January, subject to conditions that may or may not be acceptable to the Government and the people. That is not an unconditional agreement; it is a counter-offer. As a matter of law, a counter-offer destroys the initial offer, which no longer remains open for acceptance, and is a new offer that can either be accepted or not. It is that possibility which has been overlooked by the Bill as presently drafted. That is why the noble Baroness’s amendment is plainly right.
The third possibility is that the Council will make a different type of counter-offer, which is to propose an extension that ends on a different date. That is a separate type of counter-offer, and that, as the Bill is presently drafted, triggers the provision in subsection (3). The noble Baroness’s point, as I understand it, is that the second type of counter-offer should also fall under the scope of subsection (3). She is plainly correct.
My Lords, I add my support to the amendment in the name of the noble Baroness, Lady Deech, who has set out clearly why the Bill is plainly defective. I think it happens to be a terrible Bill, and all that it will achieve if passed is to kick the can further down the road, which has a huge cost in terms of prolonged uncertainty and putting off decisions to make new investments.
As my noble friend who has just spoken has pointed out, there are different possibilities as to how the EU will react and respond to a request for an extension. Noble Lords will remember what happened at the last request for extension: there was a very long debate in Council, with President Macron seeking to allow us a much shorter extension whereas some other member states wanted to offer a very much longer one, and 31 October was a kind of compromise date. There was also much talk in the Council as to what other conditions should be applied to any acceptance of a request for an extension. That is the reason for the noble Baroness’s amendment.
It is not just on that point that the Bill is defective. I would like to know what is a “Lords sitting day”. There are two instances in the Bill of something called a “Lords sitting day”, which I have never heard defined before, as well as “calendar days” and “days”. So, the Bill is a bit poorly drafted. I have always understood that the role of your Lordships’ House is to scrutinise and improve deficient legislation.
I have another question; I think it is for the noble Lord, Lord Rooker, because he introduced this Bill. Clause 3(3) refers to what happens if the House of Commons has decided not to pass a Motion between two calendar days. It does not say what happens if the House has not decided to pass, or not decided not to pass, a Motion within two calendar days. Also, should “decision” have an upper-case d? If it is intended to signify a formal decision of the Council, it should have an upper-case d. If the decision is made on a Friday, or a Thursday when the other place is not sitting on the two subsequent calendar days, it is quite likely that the other place will not have had an opportunity to decide whether or not to pass such a Motion.
Quite apart from the very harmful effect of this Bill on our country and the current negotiations with the European Union, I think the least your Lordships’ House could do would be to support the noble Baroness in doing something to mitigate its harmful effect by making it a little clearer.
My Lords, I rather echo the puzzlement of the noble and gallant Lord, Lord Stirrup. I would like to ask the noble Baroness, Lady Deech, or other sponsors of Amendment 2, to explain what part of Article 50 gives the EU 27 any power to impose conditions. As I read it, paragraph 3 of Article 50 just says:
“The Treaties shall cease to apply to the State”—
the UK in this case—at the end of the two-year period, or the end of the extended period. Could the noble Baroness explain what is the basis in EU law for believing that the EU 27 have the power to impose any conditions?
The noble Baroness is vastly experienced; having been in the European Parliament, she understands these things and I cannot pretend to do so. When the issue of the extension beyond 31 March was discussed, I recall that President Macron and others were intent on imposing all kinds of conditions. Is she saying that, when he said that, he was not aware of the nature of the Article 50 process, or of European law?
I obviously have no idea what went on in the private office of President Macron. However, as noble Lords know, there are loads of lawyers in Brussels; the legal services of the three institutions are very distinguished. I imagine that there could have been some lively discussion between the politicians and the lawyers as to what was possible. I acknowledge that I am not aware of exactly what the content of those discussions could have been. I make no pretence to be an EU lawyer, but I remain untutored—just on a reading of Article 50—on what power would allow the EU 27 to impose those conditions. Since the noble Baroness, Lady Deech, moved the amendment—I see that the noble Baroness, Lady Falkner, is keen to come in, perhaps because this is also relevant to Amendment 3—I ask where that power comes from.
My Lords, I might be able to assist the noble and gallant Lord, Lord Stirrup, and the noble Baroness, Lady Ludford, because this is very much the subject of my amendment. If the Committee is willing to hear from me now, I will not need to move it later.
On 11 April 2019, when responding to Mrs May’s request for an extension of Article 50, the European Council’s concluding statement took the form of a decision. I returned from Brussels just yesterday; I would have spoken in the debate yesterday, but I was unable to, as I missed the beginning. In Brussels yesterday, I was told that the decision of the European Council of 11 April 2019 stands as law. That European Council took note of the duty of sincere co-operation. That duty exists in all treaties and the United Kingdom has been bound by it. In particular, it referred to the conduct of the UK as applied to its relations with the EU as a withdrawing member state. Moreover, in that decision, it added a further caveat, saying:
“To this effect, the United Kingdom shall facilitate the achievement of the Union’s tasks and shall refrain from any measure which could jeopardise the attainment of the Union’s objectives, in particular when participating in the decision-making processes of the Union”.
What provoked me to try to intervene yesterday was that this is a clear curtailment of the decision-making process of the Union. I think the noble Lord, Lord Kerr, said, as the noble Baroness, Lady Ludford, just asserted, that the United Kingdom retains all rights. It does not, because that 11 April European Council decision, in granting the extension, imposed a new condition to say that the attainment of the Europeans’ objectives in particular was not defined in law. When participating, the United Kingdom has to exercise restraint and refrain—the word is “refrain”—from jeopardising the attainment of the Union’s objectives in its decision-making process. I would be extremely grateful if the noble Lord, Lord Rooker, would address this when he responds on this amendment; I have indicated to the Committee that I will not move my amendment if he gives me this response.
In Brussels, I heard that if an extension was offered, it was liable to be offered for long enough for the UK either to change its Government or to have a new referendum, giving us time to do that and then come back and renegotiate, or do whatever the Labour Party wishes to do. What I heard in Brussels yesterday was that the United Kingdom was likely to get a very long extension. Let us say that the extension goes up to December 2020. The European Parliament has not engaged with any of this House’s European Union Select Committees since the triggering of Article 50 in March 2017, there is no access to the Commission, which is a new Commission with a very activist work programme, and we are not allowed to jeopardise the attainment of the Union’s objectives, which we have some idea about but do not know because the new Commission is not appointed. Given that, could the noble Lord, Lord Rooker, explain whether that would imperil the United Kingdom’s interests for a period which, in reality, started from when the Parliament and its committees stopped engaging with us, or—taking the minimalist view of this—from 29 March 2019, when the United Kingdom was due to withdraw and this condition started to apply? This is a new condition and it applies from 11 April 2019. The United Kingdom could potentially be in a position where its interests would not be adequately safeguarded or represented for 18 months or so.
My Lords, the problem we have today is that we are constrained on time. That is entirely the fault of the Government for deciding that Prorogation should take place next week. Therefore, we are in something of a constraint. We owe a great deal to my noble friend the Chief Whip, the noble Baroness the Leader of the Opposition and those who reached a sensible compromise solution in the early hours of Thursday morning. We are grateful to them. They say, and I accept, that we need to conclude proceedings on the Bill today. This is because of the Prorogation guillotine, which was announced by the Prime Minister two weeks after he decided to do it—we know that from the depositions in the Scottish court.
I regret that there is no Minister to reply to these debates. It is frankly an insult to the House and I deeply regret it. But when he was here yesterday my noble friend Lord Callanan made it quite plain that he knew that our European friends and neighbours would accept two things. One was the revocation of Article 50. Clearly that will not happen and I do not want it to happen, but he also made it plain that the deal that had been on the table—Prime Minister May’s deal—was still possible. He also made the point that he had enthusiastically promoted it, as indeed he had. All members—I correct myself—most members of Mrs May’s Government promoted it valiantly.
I believe that we now have the opportunity under the Bill, imperfectly drafted as I acknowledge it is, with the Kinnock amendment, to bring the Theresa May deal back and enable this Parliament to make a decision with a fourth vote on it. I am bound to say that I believe it will be a service to the country to do that. As I said yesterday, it is only the beginning of the beginning, because there are many more rounds of negotiations to take place, but it would at least mean that we had something that had been supported by the present Prime Minister and Mr Rees-Mogg in the third vote, so clearly they believed it was the right thing to do at that time. I wish we could now get on and do it.
I entirely agree with my noble friend on the subject of getting on with discussing these amendments and their nature, but is he seriously arguing that if a problem that affects our national interest arises from the drafting of the Bill, we should just ignore it and allow it to go forward? It is perfectly possible for the sponsors of the Bill to agree the amendment, for it to go to the House of Commons, come back and for it all to be covered before Prorogation, particularly since both Front Benches have agreed to take whatever measures are necessary to try to expedite it. It is perfectly possible. Surely we need to address the point that the noble Baroness, Lady Deech, and other Members of the House have identified. All this repetition of all the arguments we have already had for the past three years is, frankly, a waste of time. We are at the final point now and we need to put the Bill on the statute book, but in a way that makes sense. We cannot as a House say that we are going to pass imperfect legislation because the Government were responsible for Prorogation.
That was a fairly lengthy intervention, but the fact of the matter is that we have been placed in a straitjacket by the Government’s decision on Prorogation. We have an agreement between the two Front Benches here. That is why we should move forward and get the Bill on to the statute book as quickly as possible.
I had not intended to follow my noble and gallant friend Lord Stirrup’s remarks because he included in them an invitation to some EU constitutional experts. I absolutely do not aspire to the status of an EU constitutional expert, but what he said was absolutely correct. There are two possible statuses: one is the that of a member of the European Union, the other that of a former member. The noble Baroness, Lady Ludford, is absolutely right that there is no provision in Article 50 for qualitative conditions on an extension. Temporal conditions—the length of the extension—are possible. That is what we are talking about.
The point raised by the noble Baroness, Lady Falkner of Margravine, about the European Council decision refers to the treaty rights and responsibilities of a member, one of which is the duty of loyal co-operation. That is set out in the treaty. It would not be possible to withdraw treaty rights by European Council decision. The only way to change treaty rights is by amending the treaty, which requires unanimity, and while we are members we would presumably not vote to limit our treaty rights.
The language in the decision referred to by the noble Baroness relates to the contingency, which sadly has now arisen, that the United Kingdom is not present and voting in all committees and regulatory organisations of the European Union. The United Kingdom has voluntarily decided not to exercise some of its treaty rights. Some of these organisations operate by unanimity. If there is an empty chair there and we are a full member with full voting rights that we have not exercised, decision-taking machinery among the European Union—of which we are a member—being exercised by only the 27 could grind to a halt. That is why that language is in the European Council decision. That is why our Government, though in my view quite wrongly, has decided to operate an empty-chair policy in certain parts of the European Union organisation. They have agreed that the Finnish presidency shall exercise our voting rights as though we were there so that unanimity, where it is necessary for a decision to keep the business going, can still be reached. That is the purpose of the language of the European Council’s decision.
The key point is that paragraph 3 of Article 50 is about only temporal extensions. I say to the noble Baroness, Lady Deech, for whom I have huge admiration—of course, she is a lawyer and I am not—that I believe it is not possible to set conditions to the extension of time under Article 50. I therefore say to her and to the noble Baroness, Lady Falkner of Margravine, that both amendments are unnecessary and should not be pressed.
Could the noble Lord clarify whether it would be possible for the European Council to set the condition that the British Parliament, or the British Government, agree to hold a referendum? I agree that it would not be possible for it to set conditions that limited our powers within the period of membership, but surely it is possible for it to do that.
That is absolutely out of the question. The treaty language, including in Article 50, is absolutely clear that it is for the member state to proceed under its own constitutional procedures. That is specifically spelled out, including in Article 50. The idea that the European Union would interfere in our domestic decision-taking constitutional arrangements is out of the question.
My Lords, I said yesterday what a privilege it was to be in this House, but having heard the noble and gallant Lord, Lord Stirrup, the noble Lord, Lord Lisvane, and the noble Lord, Lord Cormack, who is not on the Cross Benches, they have answered the points that I wanted to make on this amendment. The starting point for the context is, obviously, as the noble Lord, Lord Cormack, said, the limitation on time for this House and the other House imposed by Prorogation. We are in circumstances where we might think theoretically about asking the Commons to think again, but there will not be time. There will not be time for ping-pong because, if Prorogation hits, the Bill falls. I believe that that is what this House wanted to avoid, by pushing through and accepting Second Reading yesterday.
Let me come—
The noble and learned Baroness is absolutely right about that, which is why I particularly complimented and thanked him for his intervention and observation. The conditions referred to by the noble Baroness, Lady Deech—such as the monetary issue, us being required to have a new Prime Minister, and a referendum—are not, in my view, things that the European Union could impose on this country. We have said this before and I say it again: although the noble Lord, Lord Kerr, is not a lawyer, he drafted Article 50 and so knows something about what its conditions contain.
Perhaps I may assist the House by addressing this point, which arises out of the observations of the noble Lord, Lord Kerr. He indeed drafted Article 50. It is drafted in terms that do not expressly confer a right to withdraw an Article 50 notification. However, according to his views, it has now been held that such an entitlement impliedly exists. It is not difficult to argue for an implication that it is legitimate for the European Council to seek to impose conditions to our request for yet another extension, which is a request for an indulgence. Can the noble and learned Lord assist on that?
I beg to differ from the noble Lord. The Committee will also bear in mind that anything the European Council does, or seeks to do, is itself subject to the requirements of the treaties. If it does something which is thought to be outside the treaties, that is justiciable in the courts of this country—we now know very well that they can do that—but also in Brussels and Luxembourg. I do not see a problem with that. I do not see the difficulty that is raised. The Bill is clear that, if we get the answer, “You can have this extension to this date”, the Prime Minister has to act. If the date is different, that is a different consideration, and will have to be considered by the Commons. However, if we were to make an amendment now to deal with something that we are being advised the European Council could not do, we would be defeating the Bill because we would be sending it back to the Commons, which would not be sitting to receive that amendment and deal with it. I therefore respectfully invite the noble Baroness to withdraw her amendment. If she does not do so, certainly we will oppose it.
My Lords, I am not a lawyer but, from what I have heard, I believe that this amendment carries considerable weight. I am not persuaded, even by the noble Lord, Lord Kerr, that conditions could not in practice be imposed. We know that that has been talked about frequently by the leaders of our partners in Europe and by European Commissioners. Are noble Lords able to tell me what would happen if, when we asked for an extension, those in the EU asked what it was for? They have repeatedly asked us that. What if we said that we did not know, and they then told us that we could therefore not have an extension? Or what if we told them that we were going to have a referendum, and they then said that we could have an extension? Is the noble Lord, Lord Kerr, saying that that process of discussion and dialogue could not happen? It seems to be quite compatible with paragraph 3 of Article 50, which says:
“The Treaties shall cease to apply to the State in question from the date of entry into force of the … 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”—
implying that there may be a range of things to be agreed—
“unanimously decides to extend this period”.
What I originally wanted to ask was this. To my mind, this amendment raises a rather more fundamental question about Clause 3(1), which begins:
“If the European Council decides to agree an extension”.
It can decide only by unanimity. Once it has decided, its decision is European law and binding upon us. There is therefore no possibility of coming back to the House of Commons and overruling that decision. We were told that in March, when the Prime Minister went to the Council and agreed an extension. When she came back, people in the House of Commons wanted to have a vote on it and were told, “You can have a vote if you like but it is law anyway”. The assurances we have been given that Parliament itself could overrule an agreement, or not agree to a decision made by the Council, if we did not like its length or any terms that might be implicit in it are, as far as I understand it, simply not true. Now, I am not a lawyer —those were my opening remarks—but if a lawyer is prepared to stand up and say that a decision of the European Council is not binding in European law, and therefore not binding on us before we have left, my objection falls. If not, we have found a very major weakness in the Bill.
My Lords, it would appear that everybody in the House is toing and froing to Brussels. I have to make it clear that the last time I was in Brussels, when I was still a Northern Ireland Minister, on the day that the beef ban was lifted I was serving Northern Ireland beef to trade delegations to rebuild that industry. That was my last time in Brussels, so I am not party to any of the discussions.
The point about the amendment, which has been sufficiently answered in a much better way than I could do, is that it is built on an assumption about the unconditional extension of time. It would actually confuse Clause 3. Clause 3 is precise in some ways but subsection (4) gives it flexibility. It is interesting that an amendment has been tabled by the same group of people to knock out subsection (4), because that provision gives the Prime Minister the capacity to agree a different date. That flexibility and precision are built in to achieve the objectives because, at the moment, we are in an unknown area. To be honest, to add the amendment would be confusing.
I am not going to get into disputes with lawyers and drafters of legislation, but the fact of the matter is that I would take the explanation of the noble Lords, Lord Kerr and Lord Cormack, over and above legalistic nitpicking of what is quite a precise clause. In fact, when you look at the Bill, this is probably its best drafted clause.
I do not think it is for me to comment on discussions in the European Council. Like the noble Baroness, Lady Ludford, I do not know what happened when President Macron argued for a shorter extension at the last European Council. It is perfectly possible that dialogue with the British Prime Minister might take place, but what is not possible is that there could be a conditional extension. The extension would be unconditional because that is what the treaty says, or rather the treaty contains no powers for imposing a conditional extension.
My Lords, much more heavy weather has been made of this than I intended. I have a couple of opening comments: it is a pleasure to see the noble Baroness, Lady Falkner, over here, and I say to the noble Lord, Lord Kerr, that those who draft law are not thereafter charged with interpreting it. Once they have launched their draft, it is over to others to interpret it. I do not claim by any means to be a European lawyer—far from it—but my point is very simple: if an extension is granted to 30 January, the Commons gets two days to consider it. If an extension is granted to 31 January, it gets no time at all. I have still heard no reason or sense for why that should be so, and I remain convinced that this was some drafting oversight.
No one has clarified either whether the “two days” are sitting days or calendar days. What if an offer comes at the weekend, during the Christmas Recess or some time when we are not here? Since the lawyers, both the noble and learned Lords in this House and those who are clearly just as learned but are mere QCs, have different opinions about this, it is quite possible that something that is a bit tricky may come our way at a time when we are not sitting or when the Act provides no two-day pause for the Commons. So either the Commons should have two days to consider anything or it should not have two days at all. I have heard no logical answer to that.
I sense that it is the will of the House that I withdraw the amendment. However, before Report, I expect to hear some sense from someone. I do not know who gave the draftsmen their orders. I have not yet heard a sensible reason why an extension to 30 January gets two days’ consideration but an extension to 31 January does not.
Perhaps I may try to give an explanation. It is because Clause 3(1) specifically states,
“at 11.00pm on 31 January 2020”.
By definition, that would have been passed by the House of Commons, as indeed it did on Wednesday this week. Therefore, it does not really need two days to agree something that it has already agreed to and put in statute.
I understand that point, but, given that there has been enough disagreement to worry me about what the European Union might say—others who know much more than me have expressed different opinions—and we are left with this “two days” definition and nobody knows what it means, I think that there is a real legal problem. I do not know who drafted it; I do not know who gave the orders; we have not really heard a logical answer. I beg leave to withdraw the amendment, but I expect someone to give a proper explanation at some stage during the discussion, because we are in a bit of a legal pickle over that provision.
Some Lords objected to the request for leave to withdraw the amendment, so it was not granted.
The Deputy Chairman of Committees decided on a show of voices that Amendment 2 was disagreed.
Amendment 3 not moved.
4: Clause 3, page 3, line 21, leave out subsection (4)
My Lords, the House rightly scrutinises Bills that come from the Commons, including a Private Member’s Bill such as this.
I apologise for my late arrival today. I moved a time-critical meeting to very early and was then afflicted by a transport delay. Circumstances can upset timing, as we all know from our debates on these Bills.
As my noble friend Lord Forsyth said, we have a duty in Parliament, and this House plays a key role, wherever we come from, to make clear that legislation works—otherwise, I fear that we will be held up to contempt by the people of this country. They look upon us already with increasing incredulity, and that is a big concern. I just hope that the noble Lord, Lord Kerr, is right on Amendment 2.
This is Committee, and my amendment is a probing amendment. I gave notice of my concern at Second Reading and the noble Lord, Lord Rooker, has only half answered my question.
I am concerned that subsections (1) to (3) tie the Government’s hands too tightly and put UK interests in jeopardy, whatever the motivation for the Bill—which was of course agreed in the other place.
I will be brief. I do not understand what subsection (4) does and how it interrelates with the rest of Clause 3, or indeed the rest of the Bill, or the sponsors’ game plan for our relations with the EU once the Bill becomes an Act. I am also keen, like others, to hear what is happening to the Kinnock amendment, which the Minister explained yesterday was defective. I beg to move.
This provision was put into the Cooper/Letwin Bill very much at the insistence of the Government at the time. I am not trying to make a point against the Government—the reason for it was to preserve the prerogative of the Government to accept an amendment. At that stage it was thought possible that the European Council would offer an extension at a Council meeting and there was the question of whether the Prime Minister would be able to accept it. After consideration of that, it was put into the Cooper/Letwin Bill that the Prime Minister should in fact be able to accept. This Bill, in Clause 3(4), says again that nothing will,
“prevent the Prime Minister from agreeing to an extension”—
it does not allow him to refuse an extension—
“of the period specified … otherwise than in accordance with this section”.
So he does not have to go through the procedures if he wants to accept it. That is a way of preserving the prerogative, or privilege, of the Government to make agreements at an international level, but on that specific basis.
That is the reason for it, and it is appropriate to have it in this Bill too. The time for it to arise is limited and, if I understand correctly what Mr Johnson said about ditches, there will be no question of his agreeing to anything unless he is constrained by the Bill. So it is an interesting question and I think it is entirely academic. In those circumstances, I hope that answers the noble Baroness’s question and we can move to complete Committee.
This simply keeps free from constraint the prerogative of the Prime Minister, notwithstanding this Bill. This Bill simply deals with requiring the Prime Minister to apply for an extension; if he manages to get one anyway, it does not matter. That is what is preserved. There is no question at that stage—if we accept the proposition of the noble Lord, Lord Kerr, about the nature of extensions—about conditions, except temporal conditions. Therefore, what the Prime Minister is allowed to do here is what, apart from this Bill, he would be able to do. This Bill is an additional requirement on him when it is activated.
I ask the Committee’s forbearance. Noble Lords on all sides are entirely agreed that the extension which the Bill demands that the Prime Minister seek is for one purpose only—look at the Kinnock amendment in the second part of Clause 1(4)—which is to try to get something like the May deal finally agreed. Heaven knows, I strongly support it and have long suggested that it should be agreed. However, having got such an extension, it would be quite unlawful for anybody to then say, “Ah, but we must use it instead to retract the Article 50 notice”—or seek a referendum or anything like that. Are all noble Lords happy and agreed on that?
My Lords, there is not much for me to say—although, as I alluded to in the previous debate, Clause 3 is precisely drafted and subsection (4) is there to give flexibility if other circumstances prevail. I had forgotten about where the Cooper/Letwin Bill—which I started off myself in April—came from. In other words, it came from the current Government on strike saying, “Please put it in your Bill”. We are happy to agree to the Government’s original plan to have it in the Bill. The noble Baroness said that this was a probing amendment. I would be very happy therefore if she would withdraw it.
My Lords, I am grateful for the good legal advice from all sides about what this provision means. It is obviously a helpful provision, and I am happy to withdraw the amendment. I am concerned that this Act has no end date, so it is right to make sure that we understand the provisions and how they would work in the future. I beg leave to withdraw the amendment.
Amendment 4 withdrawn.
Clause 3 agreed.
Clauses 4 and 5 agreed.
Schedule: Form of letter from the Prime Minister to the President of the European Council
Debate on whether the Schedule should be agreed.
I would like to say something about that. This is the text of a letter that the Prime Minister is required to send under the Bill. If there had been time, I would have proposed that the letter included a reason. After all, it is to the European Union that the reason is to be expressed. As I understand it, the European Union says that, if it is asked to grant an extension, it wishes to have a reason. In the ordinary course of events it would be right to have the reason in the letter. Unfortunately, time prevents that happening. That would have been better, but I am sure the initiative will be sufficient for the reason to be communicated to the European Union, even though it is not stipulated in the letter. The terms of the Bill say that this is the letter, so there may be a risk in adding to it—but that may be a risk that should properly be taken.
The condition is obvious: to give the reason why you are applying for an extension. As the noble Lord, Lord Kerr, said, the important point is about time, and the EU wants to know how this time is to be taken up. That seems to me a perfectly sensible idea.
It seems obvious to me that if you are asked to make an extension, you do not do it just for the sake of doing it; you have some reason for it. I do not think that the European Union, far as it may be from common sense in many respects, is so daft that it provides for an extension to be applied for with no reason on earth why it should be granted. It seems common sense to me that the reason is required and, of course, the Bill contains the reason but has just happened not to put it in the letter. I suspect that what happened may have been a copying of the previous Bill, the Cooper Bill, which did not have the reason in at all, as I pointed out at the time. This Bill is much better and includes the reason. Unfortunately, it is not so good that it has it in the letter as well but, as I say, I do not think that matters. At least, I do not think that ultimately it will matter.
As for my noble and learned friend’s question about the reason, it is quite important that the reason given in the Bill is the reason that has to be given in support of the application for the extension. I would certainly have suggested that it should go in the letter if there had been time, but I fully appreciate that there is not time and therefore we must leave it as it is.
My Lords, beside what my noble and learned friend has just said about the letter and its deficiency in not including a reason, do your Lordships not think it would be much better if it also made clear what the parties are supposed to ratify? It simply says:
“If the parties are able to ratify before this date”,
but there is no object of the sentence, so there is no object to ratify. It is clear that it refers to a withdrawal agreement—I understand that—but it is very sloppy drafting and it could be argued that it refers to the ratification of something else.
To respond to the noble and learned Lord, Lord Mackay, we spoke outside the Chamber last night, because he raised this right at the end. He has a valid point, but the Bill as it stands is still sufficient, and we are under the Prorogation guillotine. If we were not, we would have some flexibility. It is the Prorogation guillotine that has removed the flexibility from the House to deal with this.
My Lords, I apologise for forgetting the letter.
Bill reported without amendment.
My Lords, the House will now adjourn to allow for amendments to be tabled for Report. The Public Bill Office will be open to receive amendments for the next 30 minutes. The House will then resume as soon after that as possible and timings will be displayed on the annunciator.
My Lords, I move this Motion on behalf of the elected House. I am not here to debate leave, remain or Brexit. The Bill is about how Brexit is carried through so that the UK does not leave without a deal and that, once a deal is there to be voted on, we will leave, if the House of Commons agrees, via its meaningful vote.
Of course, this House does not have a meaningful vote. The Bill has come from the elected Commons but this is not a normal situation. The timetable has been forced on Parliament by the Prime Minister. Our role is not necessarily to rubber-stamp the elected Commons but, given the Prime Minister’s Prorogation timetable, the House has no real time to amend the Bill without jettisoning it as a whole—it is too risky. This is not the preferred way to scrutinise. It has been forced on the House. In this respect, I much regret that the Leader of the Lords saw fit to be part of the Privy Council’s forcing an early close-down of Parliament. Knowing the sensitivity of being the Leader of the House, she should, I believe, have declined that invitation. There are plenty of privy counsellors around to choose for the task.
It is not the case that it must be certain privy counsellors. In 2005, for the Prorogation Privy Council, there were three privy counsellors present at Windsor. None of them was from the House of Commons; two were Ministers from the Lords, of which I was one, and another was a member of neither the Government nor the House of Commons. There are plenty of privy counsellors. The Leader of the House did not have to accept that invitation; it has dragged this House into the issue of closing down Parliament early when it was not necessary. We need to consider what is sent to the Lords and the context in which it is sent. There is a clear breakdown of trust in the Commons, which is under extreme pressure. It has now decided, as it did earlier in the year, to try to take some responsibility for and control of the decision on a no-deal Brexit. To coin a phrase, the Commons has acted to stop a no-deal Brexit by any means necessary. We have gone past the stage where many of the public thought that no deal meant not leaving—the Operation Yellowhammer papers have made that clear to everyone concerned.
I always preface my presentations for the Peers in Schools programme by saying that we have two Houses of Parliament, but they are not equal. The role of the Lords is to scrutinise and sometimes to ask the Commons to think again, but knowing that the Commons always has the last word. But we are not in normal times. As I said earlier, the Prime Minister’s timetable means that we are in no real position, whatever the business arrangements for Monday, to ask the Commons to think again on this Bill. It almost amounts to a national emergency in legislative terms. We need to treat the Commons with respect as it tries to achieve the objective. It alone has the legal and political responsibility for the meaningful vote. It is as divided as the nation, but it has sent us a Bill.
We should now, as far as the Prorogation timetable allows, operate the conventions to give the Commons the last word. The conventions are in play as never before —we saw that yesterday. Indeed, the conventions are being changed. A convention breached requires what we might see as an unconventional approach, hence the business Motion and hence effectively timetabling consideration of this Bill.
When I was young and out of order, my mother used to call me Jeffrey, rather than Jeff, and often told me, “two wrongs don’t make a right”. Today I have to ask: if the wrongs are not two but more, many more—eight, nine, or a dozen at least—what do we do? We have the early closing down of Parliament, misleading on the negotiation, ignoring purdah rules, spending without the OBR, attempting to leave come what may, refusing to publish the consequences of leaving for the poor, failing to table amendments to the withdrawal agreement, attacking Dublin, running the clock down, leaving UK citizens high and dry in the EU and EU citizens in the UK in limbo, and putting the union in peril. That, to me, is a massive breach of the conventions that we should be operating under, which has caused this reality with this Bill. It is an unconventional response to the breaching of the conventions. I commend it to the House.
My Lords, this is actually a simple and quite straightforward Bill, but that does not make it unimportant. What it seeks to prevent—a no-deal crash-out on the simple say-so of the Prime Minister—has major implications.
Like other noble Lords, I spent August in France where, at a birthday party, I met Monsieur Serge Ratel, born in Normandy soon after the war. Learning that I was British, he fixed me with a steady but rather sad eye and—I hope I have translated this properly, because my French is not perfect—said, “You Brits have done so much for us. You rescued us during the war and then, in the way that you engineered the post-war reconstruction, you enabled us to recover in a way that made possible the European Union. Since you have been in, you have helped steer our whole continent and helped us remain at peace with ourselves and with each other”. He went on to say that while, as strong allies, the EU could survive without us, as it had done in its early years, our leaving without a deal would harm not just the UK but the EU itself.
That is what the Bill is about. It is not about whether we leave but about the method of our going—whether we depart as friends, neighbours and allies, with agreement between us and in a way that best supports our economy, security and the people across the continent. It matters for them, but how we leave also matters for our democracy. It must not happen without the consent of the Commons.
We rehearsed the economic and security risks of no deal in your Lordships’ House on Tuesday. This Bill is about something else. It does not say that we could never leave without a deal. It says that that could happen only provided the Commons agrees. We have already in your Lordships’ House helped write into the withdrawal Act that any deal on which we leave must have the consent of the Commons, so this Bill simply extends that to include leaving without a deal. To ensure that that is the case, it requires the Prime Minister to seek an extension to the Article 50 negotiating period, either to provide time for that deal or to allow the Commons to concur with a no-deal exit, if that is what the Prime Minister is to recommend.
So the Bill is actually quite simple, it is democratic and we will support it from these Benches.
My Lords, I too thank the noble Lord, Lord Rooker, for introducing the Bill. As has been said, a broad coalition came together to support this short Bill, which is simple and has a narrow focus: to prevent a crash-out Brexit for which there is no mandate. As Hilary Benn MP said, preventing a no-deal Brexit is the central most important question facing the country. The new MP Jane Dodds, who made her maiden speech yesterday, gave an illustration of what would happen to sheep farmers in her constituency.
I pay tribute to the responsible senior politicians from all parties who came together in the national interest. As we know, that included two distinguished Conservative former Chancellors of the Exchequer, Philip Hammond and Ken Clarke. What is notable is that many people have commented that it is an odd world in which an individual’s Conservatism is measured by how recklessly they wish to leave the EU. We are in a topsy-turvy world.
Supporters of the Bill are open about the fact that, beyond preventing the devastating harm and disruption of no deal, they have very different views on how to resolve the Brexit question. None of those options is precluded by the Bill, which, as I said, has a narrow scope. As Alistair Burt, one of the co-sponsors of the Bill, said,
“is the Bill a stumbling block to negotiations? No, it is not. The Bill does not prevent the Prime Minister or the Government from negotiating”.—[Official Report, Commons,4/9/19; col.224.]
It simply prevents no deal unless the Commons agrees to it and gives the Commons powers over the extension process—so it is taking back control to Parliament in action rather than in empty rhetoric.
I covered that point. The Bill does not prevent a deal, because a deal could be agreed within the extension period—that is specifically covered. I said that the coalition is perfectly open about the fact that it has coalesced on a specific, narrow purpose: to prevent massive harm to the people of this country. Beyond that, there will be further discussion about how to proceed.
My Lords, perhaps I may briefly raise some concerns about the impact of a no-deal Brexit on children in low-income families. I welcome this Bill. As the noble Lord, Lord Rooker, said in opening the debate, there is particular concern about families on low incomes, and the adverse economic impact on them that would follow a no-deal Brexit. In the course of austerity, we have seen families on low incomes suffering significantly. Cuts to local authorities have reduced support for vulnerable families. Consequently, what we have seen and what has been recorded in numerous reports is that the number of children coming into local authority care is rising year on year. Generally, it is children from the poorest families who are taken into the care of the state.
I warmly welcome this Bill as it prevents a no-deal exit. I am concerned that, if we proceed with a no-deal exit, we will see more harm done to these families. I am also concerned about the number of children who are not fully documented and who have uncertain immigration status, and in particular those in care. Local authorities are finding it difficult to get proper documentation for about 3,000 or 4,000 children in their care. In his response, I would be grateful if the Minister could address concerns about their welfare. In fact, he will not be responding. Perhaps the noble Lord, Lord Rooker, or the Opposition might say a few words about their concerns about the impact on low-income families and about the documentation of children with uncertain immigration status, particularly those in local authority care.
My Lords, this Bill will of course go through, but any idea that it will solve all our problems can dismissed here and now. We have already heard of some of the dilemmas ahead and they will be not only for my party and the Government but for the Labour Party, as the morning newspapers and broadcasts make clear. There are some difficult questions for Labour to resolve, which it has not yet done.
In the light of this difficulty for all the parties, there is, possibly, a way out that begins to have some light in it for remainers and remoaners, leavers and believers—in fact, for all of us. That could occur on or around 17 October, with the possibility, at present dismissed by almost everybody, of an amended withdrawal agreement with—using the words of Monsieur Macron, Angela Merkel and, although perhaps not the Taoiseach himself, many people in the Republic of Ireland—the “unnecessary” backstop modified or removed.
The noble Lord, Lord Newby, eloquently and again and again, says there is no hint of alternatives. There are massive alternatives that have been worked out with huge authority by a vast range of people—by consulting border operations throughout the world, by taking examples everywhere, by drawing back into the history of the Northern Ireland border in immense detail, by analysing precisely the kind of traffic going across every day and by taking into account that we remain, with the Republic, in the common travel area and outside Schengen. These details exist. It suits everybody involved at the moment to say that there are no details. It suits Monsieur Barnier to say that there is no hint of an alternative. He is quite wrong. He is bound to say it for the moment, but there are massive volumes containing immense detail, which could provide the alternative to the backstop. The date is 17 October.
One is very interested to hear about this massive detail. I may be mistaken but I read in the paper that, when the Prime Minister met Chancellor Merkel a few weeks ago, it was agreed that he would produce his alternative plan within 30 days. One wondered why he needed 30 days if the plan already existed. Perhaps the noble Lord could tell us—if he knows—whether Mr Johnson has revealed this cunning plan to Chancellor Merkel and whether she has accepted that it is an appropriate alternative to the backstop.
My Lords, the word “reveal” is a misnomer. The full reports of the alternative arrangements group exist. The summaries exist. All the background material is available for anyone to read. To what extent it has been pressed by government negotiators in Brussels—Mr Frost and others—I do not know. You do not need to reveal something that has already been published. These things have been worked out and are available. I am not saying that anyone will agree to them, and it pays people at the moment to pretend they do not exist or have not been revealed. They have and they are there.
Perhaps I can encourage my noble friend to help the House on one point. Can he name anywhere in the world where different customs unions share a border, without the sort of hard border which is of concern to everyone? Just name any one. The United States and Canada: no. Switzerland and France: no. Where are there two countries with different customs unions side by side that do not have a hard border?
My noble friend is enormously experienced in these matters, particularly in Northern Ireland. He, above all, knows that the Northern Ireland/Republic of Ireland situation is unique. There is nothing like it in the rest of the world. I was involved with Mr Whitelaw in trying to reinforce the military side of the border to stop the Provos coming up from Dundalk. We tried, but it did not work because there are a thousand other outlets. Even if people wanted to recreate a visible border, it would not work. My noble friend knows perfectly well that the Irish situation is unique and that there are, therefore, opportunities for unique solutions. I am not saying that it will be admitted. I do not expect even my noble friend to admit that anything I am saying at the moment is correct. The facts, the documents and the expertise on many other frontiers are there. I do not have all the details in front of me at this moment to quote in the debate. They are there for reading and I am sure he has read them.
That was my first point. There is a way out if we are careful and sensible and deal with the matter in a mature way. I am not that hopeful it will happen, given all the interruptions, but there we are.
I am sorry to correct the noble Lord, for whom I have the greatest respect. When I was a member of your Lordships’ EU Select Committee, we took evidence from the border people in Norway and Sweden. To the best of my recollection, the conclusion was that they were very proud of the smoothness of their arrangements, but that every lorry was delayed by at least 10 minutes at that border.
I do not want to continue with this, but if the noble Lord—for whom I have great respect as well—cares to read the alternative arrangements report, he will see that the detailed analyses of what goes on at various borders are examined by experts. The evidence is there. There are pages of it. He will see exactly which bits could apply to the border in Northern Ireland and which do not.
I simply repeat: the alternative arrangements documents are there and go into considerable detail. They can be dismissed or agreed to, depending on your state of mind, but they are a way out. I now want to say something on a different area. Are there any other interruptions before we leave this? There is one more.
I have enormous respect for my noble friend and what he has been trying to achieve in this House. If we are honest, the hard border and any mitigations are trying only to make a hard border slightly less hard. The only way, if we leave the customs union and single market, to solve the problem in Ireland is to have a border down the Irish Sea and cut off Northern Ireland. Is that what the Conservative and Unionist Party wishes to do?
That statement—“the only way”—again reveals the Manichean approach. There are already controls on livestock and weapons down the Irish Sea. They already exist. There are controls all around the invisible border to Northern Ireland, so this constant either/or is misleading us and guiding us away from sensible compromise solutions, which a calmer atmosphere would soon reveal and resolve.
I am afraid the arguments today are already becoming as circular as ever. Is the truth not that remainers will not accept the position, just as leavers have their views too? What my noble friend is saying is absolutely true: those who really understand it know there are ways of doing this, but the baying leavers will not accept it. I urge my noble friend to save his breath and move on to something else.
I thank my noble friend for that encouragement. I turn now to a matter addressed to my own party, which will possibly produce more agreement opposite. The so-called Cummings purge is a major political blunder. These blunders happen at the end of a sequence of earlier blunders. You can watch how earlier mistakes and errors, blunder after blunder, lead to a point where, suddenly, there seems no choice and the new folly is committed. The new folly of my party is to reduce its membership by 21 and exclude two ex-Chancellors, an ex-Deputy Prime Minister and my dear friend Sir Nicholas Soames. I just hope it will pass. I hope Rory Stewart’s view that this will pass is right, and that they are restored to the party. This is again part of the Manichean tone in which matters are presented, when everything is either right or wrong, in black and white.
Delay of the Bill will solve nothing, although it seems a way out. In another three months, we will be back to exactly where we were before. The referendum so beloved of the Lib Dems, even if we get it through, will not solve anything either. An election is bound to come sometime, but I say to my noble friends that, whether it comes or not, normal times will never return. We are living in a completely different digital age, in which populism is in power. Both parties—mine and the great Labour Party—will have to reunite and change on entirely different terms. Neither can build on the basis of the old dogmas. If that is the one lesson that emerges from this unhappy situation, let us at least take account of it.
My Lords, it is already evident in some of the terms of this conversation—of this debate—that we have to get away from this binary thinking about leave or remain. They were terms that pertained to the referendum in 2016 where the question was “what”. Where we have got stuck is on the question of “how”. You do not need a degree in logic or philosophy to recognise that they are different questions. The Members of the other place and of this House trying to take their obligations seriously under the constitution to serve the people of this country means that we have got to this sort of impasse. It is not because of negligence, or because of waging ongoing campaigns from three years ago. I deeply resent the constant insinuation that if you voted remain then you remain a remainer and anything you do has to be suspected as being a plot to ensure that we remain. Many people in this House who voted remain have gone on to say that the referendum result was to leave and we have to move on to the question of how to do that but with the responsibility to look to the interests of our country.
If, as the Prime Minister said fairly recently, we will easily cope with no deal, why not publish what the actual costs of no deal will be, as for example King’s College London, the UK and the EU project have done, and others are doing? Why not listen to those from Ireland and Northern Ireland, who look somewhat askance at some of the discussions going on here about them—rather than with them, if I can use that term? We are still wrestling with the question of “how”. In my own imagination, I have flirted with what the virtues of no deal would be. One of them would be that it would force us to behave like adults: you face reality, you count the cost and you suffer the consequences. If we are to cope easily and there are to be no terrible consequences, fair enough, but that is not what we are hearing from those doing the detailed work. I know we have to discount experts and intellectuals, but who else will do the work?
If we are to have an extension, there will be two factors at play. The first is that an extension is not a vacation; it is for work to go on and a deal to be sought. The Prime Minister assures us that negotiations are going on, but everything we hear from the EU is that they are not—who do we believe? The second factor is that the timetable—the programme—will be conditioned to some extent by factors that we have no control over, such as the EU budget programme and its timings for establishing its future without us. We cannot simply extend for ever, but what is the content of the conversation that will go on during any extension?
The last thing I want to say to shine some light into this debate is that, while we focus on Brexit and the costs and benefits of however we leave the EU, we will still need, when all that is done—that will be the beginning of the process, not the end, as this was supposed to be the easy bit—a vision for what Brexit is supposed to deliver for the people of our country. What are the big values? What is the big picture? What is the country that we want to live in? We are told that this is to be the greatest place on earth to live, but let us flesh that out. What will it look like? What will it look like for Britain to be “great”, rather than just have that as a title or a slogan? That is the imaginative work that we need to begin in this House, in the other place and in the discourse in the wider country. What sort of country do we want to be? What values will shape it? What price truth, reality and behaving like adults, where we face the cost and are willing to suffer or enjoy the consequences? That is the conversation we need to move on to and I fear that we will have to do so fairly soon.
My Lords, I fear that I will disappoint the right reverend Prelate because I unashamedly believe that it is against the interests of the people of the UK that we should leave the EU. Throughout my political life, I have believed in two things: the union of the UK and the membership of the UK in the EU. In the next two or three years, I could see both struck down. I imagine that I will not be the only person in that position. Since I unashamedly and profoundly believe that our interest is best preserved by remaining—to answer the question of the noble Lord, Lord Grocott, taken up quite legitimately by the noble Lord, Lord Howard—I shall use the time available to argue that case as fervently as I possibly can.
I turn to the question of Scotland. Would it not be a quite extraordinary outcome if a party describing itself as the “Conservative and Unionist Party” were to preside over the break-up of the United Kingdom? I do not know how often noble Lords go north of the border but it is worth doing that, if only for a couple of days, to understand the sense of injustice that so many people in Scotland feel about the attitude and policies of the present Prime Minister. That can only put wind in the sails of the Scottish National Party—and, God knows, it is adept at ensuring that any puff of wind in its direction is put to the best possible use. In my view, that would be damaging not just to Scotland but to the UK. For my part, I will not allow that to pass unless I am satisfied that I have done everything in my power to prevent it.
My second point is political. People often say, “All we joined was a customs union”, but it always was a political union, just as NATO, a defence union, was always was a political union. Why was it political? Because it was to try to avoid the fact that within 21 years two wars had taken place on the continent of Europe. If you are old enough to remember the Pathé newsreels of the devastation that had been caused to Europe, you will hardly find it surprising that the people whose countries had been invaded and occupied were determined to find an alternative way of living, and that has been remarkably successful. When the EU, in the shape of Mr Barnier and others, is reluctant to do anything that would detract from the EU’s economic integrity, that is as much about security as anything else because in economic integrity lies security integrity as well.
I hope that from time to time we look outside our own borders. We have a meddling Russia. As Russia’s economy goes further down Mr Putin has to keep meddling, trying to put the so-called West off its stride. The EU is a challenge to him, just as NATO is. His policies are the undermining of one and, if he can, the destabilisation of the other. We have an expansionist China, whose expansion is not just military but economic. Look at the extent of Chinese investment in this country and ask yourself whether that has had any impact upon the attitude expressed publicly by our Government in relation to the events in Hong Kong, to which, even if we have a declining legal obligation, we most certainly have a continuing moral obligation. Also, look at the White House. Can anyone ever remember a White House so uncertain and unpredictable? In this extraordinarily changed world, does it make sense to leave a political and economic union that has been so successful since its first creation?
Those are the reasons why I am a remainer. If the Bill is passed, I shall use every minute available to ensure that that case continues to be put to the people of the United Kingdom.
My Lords, it is always a pleasure to follow the noble Lord, Lord Campbell, with whom I have had the pleasure of jousting over many decades. Occasionally I have even agreed with him. I will not follow his speech in its entirety, but before I address the remarks that I prepared I will deal with one of the observations he made and challenge one of the myths that has grown about the role and achievements of the European Union.
It is often said and rarely challenged that one of the great achievements of the European Union was peace in western Europe after the Second World War. I do not believe that to be true. The peace that has existed in western Europe after the Second World War actually owes more to the Soviet Union than it does to the European Union. It was inconceivable for almost 50 years after the end of the Second World War, when western Europe faced an existential threat from the ambitions of the Soviet Union, that any further fighting should take place in the western part of the continent. They were obliged to unite to face that threat. That was why we had peace in western Europe for 50 years after the Second World War. Of course, happily, after that period had lasted and the Soviet Union had disintegrated, the countries of western Europe had got out of the habit of fighting each other and we have been able to enjoy peace ever since.
Does my noble friend seriously think that the only reason for Franco-German reconciliation after the war, which is at the heart of European peace and building a new Europe out of the moral, economic and political rubble, was the Soviet threat? It might have contributed, but there were far bigger political issues that produced that, thank heavens for all of us.
We can argue about whether it was the only reason. Of course other factors encouraged Franco-German reconciliation, but the peace of the western half of the continent was an inevitable consequence of the threat those countries faced from the Soviet Union to the east.
This is a very interesting historical debate, but I add to it to the point that one reason why Franco-German reconciliation occurred was because of the construction of the Federal Republic of Germany —in which Britain, in the post-war Labour Government, in particular its Foreign Secretary, Ernie Bevin, played an absolutely central role—and its being one of the most successful states in Europe since the Second World War. That has been an essential underpinning of European union and peace.
Following on from what the noble Lord, Lord Liddle, just said, would my noble friend agree that we would not have had a peaceful Europe without a strong, stable Europe? Fundamental to creating that stability was the Coal and Steel Community, out of which came the European Common Market, as it was originally called. I believe it was a profound mistake, which a very great British Prime Minister tried to put right, that we were not in much earlier. My noble friend cannot say that it was just the Soviet threat that created a strong, stable Europe because that is manifestly untrue.
With respect to my noble friend, I did not say that. I repeat what I said: peace in western Europe after the Second World War owed more to the Soviet Union than it did to the European Union. I did not say that the Soviet Union’s threat was the only factor. Of course there were other factors. Many of the things said in questions to me in the past few minutes have considerable truth to them, but it is ridiculous to ignore the extent to which peace in western Europe was a consequence of the existential threat that the western part of the continent faced from the Soviet Union to the east. I would like to proceed to consider the Bill.
I do not intend to prolong this historical debate, other than to say to the noble Lord that he is falling into the trap that an earlier speaker warned us about—he is being too Manichean. He is juxtaposing the Soviet Union threat, the NATO response and the European Union. It is all of them together. It is because they are all working together to common aims that we have managed to come through better. When war broke out in Europe again in the 1990s, in the Balkans, the longer-term response to that has come mainly from the European Union. Surely we can move away from this distorted view of history and accept that the European Union has played an integral part in our security and prosperity but not the only part.
I do not disagree with the noble Lord. His intervention establishes that we have made some progress because, in common parlance, the European Union is frequently given the entire credit for creating peace in western Europe after the Second World War but I do not believe that to be true.
I shall not give way on this any more. I want to move on to consider the Bill before your Lordships’ House today, on which we ought to focus our attention.
The noble Lord, Lord Hennessy, whom we all admire and for whom we have so much affection, has recently propounded a novel theory of government and has given it a name—he calls it the government of good chaps. He is in a better position to explain his theory than I am but, as I understand it, one of the elements is that the constituent parts of government and our unwritten constitution should behave within their respective roles as understood by convention and tradition under those unwritten rules. I contend that the legislation before the House is a fundamental breach of the good chap theory of government.
I shall endeavour to explain why I have reached that conclusion. Our unwritten constitution is based on the separation of powers—in particular, between the Executive and the legislature. It is the role of the Executive to govern; it is the role of the legislature to hold the Executive to account—to hold to account but not itself to govern. This Bill represents an attempt by the legislature to assume the mantle of government. That is why it is wrong and illegitimate, constitutes a fundamental breach of the good chap theory of government and is in breach of the conventions of our unwritten constitution. These observations would apply regardless of the underlying reason which gives rise to the Bill; and the fact that the underlying reason underpinning the Bill relates to Brexit makes it even worse.
If the only role of Parliament is to hold the Government to account, how does the noble Lord explain the fact that we pass laws which bind the Government? We often amend Bills that the Government introduce in a way that they do not want. We do more than hold the Government to account; we set the way in which the law of this country and the Government act.
Parliament passes laws initiated by government, and when Parliament passes, and indeed amends, those laws, it does not enter into the detailed prescription of government contained in this Bill. That is why this Bill and its predecessor, introduced earlier this year, represent so fundamental a breach of precedent. They were facilitated only by the fact that the Speaker in the other place decided to dispense with precedent and, as far as we are aware, to dispense with the advice he was given and to allow the Opposition to take charge of the business of the House.
I want to take the House back to the Second Reading of the referendum Bill in the other place—the Bill that provided for the referendum. That debate was introduced by the then Foreign Secretary, one Philip Hammond. He said that,
“whether we favour Britain being in or out, we surely should all be able to agree on the simple principle that the decision about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber”.
“or parliamentarians in this Chamber”.
He said that the decision should be,
“for the common sense of the British people”,
and that this Bill,
“delivers the simple in/out referendum that we promised”.—[Official Report, Commons, 9/6/15; col. 1056.]
The Bill which provided for that referendum was of course passed by a very large majority, but the difficulty that we have faced ever since is that the British people delivered a result that Parliament neither expected nor wanted. I am happy to give way to the noble Lord.
The noble Lord is entitled to his view but I would not agree with him.
That is the root cause of the difficulties that we have faced over the last three years. Parliament took a different view. Parliament got the result from the British people, and certainly the then Foreign Secretary, who moved the Second Reading of the Bill, got a result very different from the one that he wanted or expected. I regret to say that Parliament has, at every turn, sought to thwart the implementation of that decision of the British people, and this Bill is but the latest instalment of that sad endeavour. Of course, it gets us nowhere. We have had one extension as a result of the Bill’s predecessor. It has given six months of extra time, which has resulted in no conclusion. The failure of the noble Baroness, Lady Ludford, to answer the question posed by the noble Lord, Lord Grocott, was eloquent in its admission that those who came together to support the Bill before your Lordships, both in the other place and in this House, are not in any sense in agreement about the next steps and what ought to be done.
This situation is made even more serious by the refusal of those who proclaim their belief in democracy to put that belief into practice. It is bad enough that Parliament thinks that it knows better than the British people on this issue; it is even worse that, as things stand at the moment, Parliament is denying the British people a general election in which they would have the right to decide and to express their view on the performance of the malfunctioning of the other place and to insist on the implementation of the decision that they took in 2016. This Bill is, I hope, one of the final acts of a House of Commons that has proved itself manifestly incapable of meeting the challenges in front of it. I urge your Lordships to reject it.
The noble Lord would be regarded as a good chap if he were to give way to me, which he declined to do before. I have never said, nor did I say in my remarks, that the European Union was the sole cause of stability in Europe. Of course, NATO played its part. Indeed, I implied that when I referred to the attitudes and policies of Mr Putin. If he is endeavouring to infer that I believe that Europe alone has kept the peace, that is not the case.
My Lords, as foreshadowed by its strange nickname—the surrender Bill—this Bill seems fated to be pigeonholed in the public debate as a remainer instrument that would need to be instantly repealed in the event of a Conservative victory at what we must assume to be the forthcoming general election. Of course, it gives some short-term comfort to those, like me, who still believe that our national interest is best served by staying in—but I suggest that this Bill, if passed, may prove to be of assistance even to dedicated leavers, should they soon find themselves with a parliamentary majority. It will save them from the consequences of the impetuous decision to set the date of 31 October in stone. It will do so in particular by allowing desperately needed time for two things the Government say they want: a withdrawal agreement and preparatory legislation.
Let us assume—generously, perhaps—that the Government are sincere in their stated preference for a negotiated Brexit. Their current position appears to be that an election in mid-October could be followed by a few days’ frenzied negotiation on the basis of proposals not yet submitted, a deal at the European summit in mid-October, the subsequent ratification of that deal—not only by this House but by the European Parliament—and the passage of a new and no doubt lengthy withdrawal agreement Bill, all by 31 October.
The Bill introduces an element of realism into that equation. It will have no effect if the Government achieve their stated aim of a deal by the European summit. Indeed, as the noble Baroness, Lady Ludford, said, even a subsequent deal will deactivate its requirements, according to Clause 1(5). If the Government do not achieve their aim, the extension that must be requested under the Bill is long enough for negotiations but not for a further referendum. Indeed, Clause 2 proceeds on the assumption that negotiations will progress during that period.
If our fate is to crash out with no deal, legislation will be required, and here too the Bill gives much-needed time. The Government were saying earlier this year that six new Bills were needed before a no-deal Brexit. Five of those Bills are still before Parliament. They will obviously not progress over the next few weeks, and I understand that it may not be possible even to carry over some of them into a new Session. Without those Bills, the Government will not be able—to give a few examples—to establish a trade remedies authority, set fishing quotas or even end free movement, if that is what they wish to do. To the dangers of a no-deal Brexit must be added the hazards of a legal vacuum.
Then there are the 100 Brexit-related statutory instruments that the Brexit Secretary said on 27 June were required before Brexit day. According to today’s UK Constitutional Law Association blog, only 27 of those have been laid, and Parliament is about to lose its ability to sift and scrutinise any that may be laid in the weeks to come.
We are all being urged to be ready for Brexit. This Bill is, among other things, an essential part of that process, and it has my support.
My Lords, I am most grateful to the noble Lords, Lord Hain and Lord Wigley, whom I am very glad to count among my friends.
We should not be here, but we are. A few months ago, a resolution was passed in your Lordships’ House to set up a Joint Committee of both Houses, built upon a suggestion I made three years ago, to talk about the problems that this country would face and evaluate the cost of no-deal exit. I greatly regret that that opportunity was missed. Indeed, it was flagrantly ignored by those who had the power to accept it in another place: those who sat on the Government Benches.
My noble friend Lord Howard talked about the “good chaps” theory of government. We owe a great deal to a number of good chaps and chapesseswho are responsible for this Bill. They are giving us the opportunity of drawing back from the brink. While I agree very much with the general sentiments of the noble Lord, Lord Campbell of Pittenweem, I came to the conclusion that the referendum, having happened and having produced what I consider to be an extremely disappointing and potentially very damaging result, had nevertheless been sanctioned by us and a clear but narrow result was achieved. I wanted to bend my efforts to ensuring that we left in a seemly and proper manner. What we are really talking about today is our continuing relationship with our friends and allies—and they are both—in continental Europe. It would be desperately damaging to our country, as well as to the peace of Europe, if we left in a fractious manner. It is crucial that we maintain our strong friendships. We are part of the continent of Europe; an insular part but a part none the less.
As I have said before in your Lordships’ House, even though I have a Scottish family background, my identity is English and my nationality is British. But my civilisation is European and that is something that we all share, whether we acknowledge it or not. Whether I go across the road to the great abbey, or across the road at home to the great cathedral of Lincoln, I see an embodiment of European civilisation. It is crucial that, in a continent that has been devastated by war far too often, we maintain the closest, friendliest and most co-operative relations with the nations of Europe. If we crash out without a deal, in a spirit of inevitable acrimony—we saw yesterday how that could arise in this very House, among friends and colleagues—then we are reneging on our joint parliamentary duties, in the other place and in this House.
We owe a great deal to the bravery of the 21. I believe that the vindictive and appalling treatment of them is a blot on our party, which must be expunged as quickly as possible. The very future of our country and our political system is at stake. My noble friend Lord Howell, in his interesting speech, talked about changes. I think of my favourite poet, Tennyson, who said:
“The old order changeth, yielding place to new”.
Maybe we will have to look at new political alignments in our country, because if the Conservative Party becomes a rebranded Brexit Party, as Ken Clarke indicated the other day, where is the place for one-nation conservatism? Where is the place for a party that has contributed so much, as other parties have, to our country’s history and present position? If the Conservative Party is led in this direction, and those who have given such notable and distinguished service as Ken Clarke are extinguished from it, maybe we will have to look for a new centre party, embodying what is best in the political system in our country.
The tragedy of British politics today is that we have a Conservative Party being led in a particular manner and a Labour Party that brings shame upon itself and deserves, in the tradition of Attlee, Gaitskell, Wilson and Callaghan, to have a statesman at its head. Whatever one’s views of Mr Corbyn, one can never define him as a statesman. All of us, on both sides of this House, face real problems. We will compound those problems in a terrible manner if we crash out of the European Union and heap upon ourselves problems that we do not need to heap upon ourselves.
We have missed opportunities. I referred to the failure to take up the suggestion of the Joint Committee. I believe we missed an opportunity in not being more embracing of the deal that my noble friend Lord Callanan, who is just leaving the Chamber, did so much to defend here. I hope that his exit does not indicate a change of mind on it, because the May deal was not even the beginning of the end; it was really the beginning of the beginning, because there is a great deal more work and negotiation to be done, whatever happens. I hope that, because of the deep, visceral divisions in our country, we will give some thought, when the election comes, to having a referendum on the same day. Some may utter notes of dissent, but a good many of my friends who have not been supporters of a second referendum believe that this may well be a way of separating the issues of who people want to govern the country and our place in Europe.
There is a lot to play for but it is crucial in the context of today’s debate that we have a proper and organised exit that maintains relations with countries with which we have had such close relations, in a continent in which we have played such a seminal part through the centuries. From the Spanish Armada to the Napoleonic wars, and beyond to the wars of the last century, this country’s role has been one of which we can be proud. Do not let us descend into an insular status of which our grandchildren would be ashamed.
My Lords, I am delighted to follow the noble Lord, Lord Cormack, who I also consider a friend. I agreed with most of what he said on the European context, as much as I disagreed with the noble Lord, Lord Howard, a few moments ago.
I welcome the comments with which the noble Baroness, Lady Hayter, opened this debate, referring to the context of our times in which this debate takes place. It was 80 years ago this week that the Second World War started. At that time we did not turn our backs on Europe. The existence of the European Union has grown from the desire of people to avoid ever again fighting civil wars on our continent in the way that happened so disastrously twice in the last century. That is the context of what we are debating now.
I am delighted to support the Second Reading of this Bill. I thank the noble Lord, Lord Rooker, for the way he introduced it. My party, Plaid Cymru, played a constructive role in the discussions that took place and led to this Bill, particularly through Liz Saville Roberts MP, our leader in the House of Commons. As a party, we campaigned to remain—and so did I. However, we were willing to seek a compromise because we recognised that Wales and Britain had voted no to Europe. In fact, a White Paper was brought forward jointly by the Welsh Government and Plaid Cymru with a compromise that would have involved a customs union and single market involvement. It could have found a majority across party boundaries in the House of Commons, but it was ruled out by the red lines that Mrs May introduced. I regret very much indeed that that opportunity was missed.
Of course, things have now moved on. We are faced with a very real danger of crashing out of the European Union on a no-deal basis. This would be utterly disastrous in the Irish context, which no doubt the noble Lord, Lord Hain, will talk about in a few moments’ time. It would also be disastrous at home in Wales. Take agriculture: in the first week of November, where will our sheep farmers take their sheep when there is no market for them? That it true not just in Wales but in the north of England and Scotland. When we have an unknown trading relationship with the continent into which we are so integrated, how will the manufacturing companies in my part of north Wales, such as Airbus and Toyota, be able to continue trading, given the just-in-time basis on which deliveries take place? The same is true for our universities, the tourism sector and NHS staff. It will be a disaster if we crash out. I support the Second Reading of this Bill in order to systematically and definitively avoid no deal.
My Lords, I do not think the Labour Benches have spoken recently. It is a pleasure to follow my friend, the noble Lord, Lord Wigley, as it was to follow the noble Lord, Lord Cormack, who is indeed a friend as well.
I fear that the new Prime Minister, his advisers and his Ministers are clearly hell-bent on crashing this United Kingdom out of the European Union without a deal. There is a dogmatic, hard-right elite in No. 10. In passing this Bill, Parliament is standing up for the decent majority in this country and against that malevolent elite. This sinister, self-serving, ideologically obsessed, wilfully destructive approach has to be stopped in its tracks. We in your Lordships’ House have a chance to do that today in supporting the elected House of Commons.
A salutary measure of the reckless dogmatism of the Brexiteers is that surveys show that two-thirds of Conservative Party members and the same proportion of Leave supporters simply do not care if Brexit means a hard Irish border or Scotland leaving the United Kingdom. For them Brexit is everything, come what may. You might say that, for them, Brexit trumps everything.
With the clock ticking rapidly towards 31 October, the new Government have done precisely nothing in their couple of months in office—deliberately so. Whatever the Prime Minister’s disingenuous protestations, he is running down the clock to crash out of the European Union on 31 October unless we stop him.
We simply cannot believe what he says. As Aidan O’Neill QC said of the Prime Minister in submissions to the Court of Session in Edinburgh on behalf of the 77 parliamentarians in the challenge to the Government’s arbitrary Prorogation of Parliament:
“You look at the record, you try as best you can to determine the credibility and reliability of what is said against a background of an individual whose personal, professional and political life has been characterised by incontinent mendacity or, to make it plainer, an unwillingness or inability to acknowledge and speak the truth”.
I see that the Prime Minister’s EU negotiator was back in Brussels again yesterday, again with nothing to say, nothing to offer and nothing to propose—a briefcase full of blank sheets of paper, I suspect, and a waste of taxpayers’ money on his Eurostar fare, I would venture. Apparently, this negotiator is an able and experienced diplomat. Having worked with his predecessors, I have no doubt that he is, but his political masters will not let him use those talents and do his job. Instead, the Prime Minister travels to Paris and Berlin— Dublin next Monday, too—then exaggerates or fabricates what exactly happened.
“We’re making real progress”, claims the Prime Minister. I have checked directly with government contacts in the main capitals and with people in Brussels and that is simply not true. Look at the comments on the record from Paris, Berlin, Brussels and Dublin, and it is crystal clear that not one single proposal has been made. It is also clear that they are not budging. Why would you in any negotiation if the other side has not made any counterproposal at all?
The tragedy is that this is not incompetence. This is not a Government taking their time in the background to prepare a serious, considered new idea. It is deliberate inaction, running down that clock and being gratuitously insulting to our friends in the Irish Republic, hoping to make it to a no-deal exit designed to turn this country upside down and convert it into a free-for-all, deregulated and fundamentally unequal society blissfully disengaged from its neighbours and isolated from the outside world.
Today, we get a chance to make the Prime Minister stop that clock. I do not want Brexit at all and I think the people should have another say in a public vote to stop this madness, but if the choice ends up being between a deal and no deal, we have to stop no deal.
Following on from the noble Lord’s comments about checking with other European capitals, I did likewise this morning and asked whether any full proposal has been put forward in relation to any aspect of the negotiations. I received the categoric response that no proposals have been put forward.
My Lords, I thank the noble Lord for that intervention because he is absolutely right and confirms what I was asserting.
Nowhere is the serial dishonesty of the Prime Minister starker than on the Irish border. Do not take it from me; take it from our very own Civil Service, whose work on no-deal planning emerged in mid-August in what was known as Operation Yellowhammer. Its analysis made it crystal clear that, although Ministers keep saying that they will not do so, not putting up border controls will be unsustainable because of,
“economic, legal and biosecurity risks”,
and that this could lead to “direct action” and road blockades. I fear that that is an understatement.
Next, there is the Northern Ireland Civil Service, an organisation under considerable pressure because of not just Brexit but the shameful lack of a Government in Belfast. Its top official said bluntly that the impact would be much more severe than in Great Britain and would have profound and lasting social and economic consequences, and that the overall consequences for Northern Ireland would be grave.
Worse again—if that is possible—the new chief constable of the Police Service of Northern Ireland warned that Brexit could become a “trigger” and a “fuelling point” to attract more people to extremist groups. His assistant chief constable was reported to have said in an interview that,
“we would be concerned for a six to 12-month time frame there would be some sort of upsurge in support for dissident republican groupings and activities”.
Those are not my words; they are the words of police chiefs. I could go on but, on the basis of just those three assessments by professional public servants, I ask this: why in God’s name would we ever wilfully facilitate these no-deal outcomes? The Prime Minister seems happy to do so, but I am not—and I trust that this House is not happy either.
At the root of the problem is that the Prime Minister and his fellow Brexiteers never have had a proper plan of their own for Brexit. They never put one forward in the referendum, and on the Irish border he still does not have a plan. That is why many of them openly favour no deal: because it is the only alternative if you have no plan.
The truth is that no deal equals a hard border because that is what falling out under World Trade Organization rules means. I am no fan of former Prime Minister May’s withdrawal agreement, but I accept the backstop knowing the complexities of Northern Ireland from my time as Secretary of State. In his reckless, bull-headed fashion, the Prime Minister has made the backstop the villain of the piece, but it is an insurance policy and, if alternative arrangements are found to achieve the same objectives, of the same open border as we have now, then it is set aside. What is wrong with that?
The Prime Minister and many commentators here—and, sadly, some elements in Belfast as well—try to pretend that Northern Ireland is no different from anywhere else: that it is just another border, like, as he famously said, that between two London boroughs and just another straightforward place where trade in goods is the only issue. In fact, the Prime Minister seems to have dumbed this down even further and decided that the only goods traded are animals and food. I thought the intervention of the noble Lord, Lord Patten, was extremely telling. I have great respect for the noble Lord, Lord Howell, but he did not answer his noble friend’s question: there is no other border in the whole world like the Irish border. That is why it needs a particular solution and not a no-deal outcome.
The Prime Minister surely knows deep down that it is not true either that this border is simply about animals and food. It is a 300-mile border with some 300 crossings—those are the formal crossings; leave aside the farms that cross the border and other communities that straddle it—unlike almost every other border in the world. It has unique arrangements under the Good Friday/Belfast agreement for north-south co-operation and that agreement is an international treaty. A little-noticed document published on 7 December by the Department for Exiting the EU lists no fewer than 157 different areas of cross-border work and co-operation on the island of Ireland, north and south, and many have been facilitated by Ireland’s and the UK’s common membership of the EU. These areas are the things of everyday life; they go well beyond animals and food and must never have a new border erected to block, discourage or thwart them. They include food, tourism, schools, colleges, farming, fighting crime, tackling environmental pollution, water quality and supply, waste management, bus services, train services, cancer care, GPs and prescriptions, blood transfusions and gas and electricity supply.
Almost every one of these areas is about people’s everyday cross-border lives and almost all are linked to the European Union, and Ireland’s and the UK’s common membership of it since 1973—we joined at the same time. To interfere with those arrangements—either through no deal, the terms of any divorce deal or any new trade agreements that we may someday, somehow strike with EU partners—would be a terrible step backwards for which the people of the island of Ireland would pay a terrible price, as would we in Great Britain.
With other Peers, I learned one other thing the other day. With Stormont suspended and unlikely to be resurrected unless Brexit is stopped, if no deal occurred there would be no legal powers left for the Northern Ireland Civil Service to maintain the necessary civil contingency and security arrangements in border communities and beyond. In other words, no deal means direct rule. That is the serious consequence for the island of Ireland of no deal.
I am desperately worried for the future of Britain under no deal, but I am absolutely livid about the impact on the island of Ireland. It will destroy the work of successive UK and Irish Governments in helping courageous and visionary leaders in Northern Ireland to remove borders and instead put them back up. If for no other reason than to maintain peace and progress in Northern Ireland and good relations with the Republic, I urge that this Bill pass without amendment.
My Lords, I want to make two brief points, one of which is directly concerned with the Bill, from which we have been drifting somewhat. The speech by the noble Lord, Lord Hain, made a compelling case for the unification of Ireland—but that may be for another day—and that the effect of terrorism seems to have achieved what the terrorists wanted.
Turning to the Bill, it does not answer the question of what the situation will be if there is still no deal by the end of January. Will the extension be continued? Nothing in the Bill prevents the continuation of extensions, months after months, years after years—nothing at all. It is an eternal Bill, an ongoing loop of requests for extensions. It also does not answer the question of what our response will be if Europe grants an extension but subject to conditions. I am sure they will be tempted to add conditions to do with extra payments, losing votes, residence, immigration, tax and so on. There is no answer in the Bill at all.
The only bright thing I see in this Bill, which I regard otherwise as a moment of great national humiliation, is called the Kinnock amendment. I have not seen it in the Bill, but I have read that, somehow, an amendment put in by the MP Stephen Kinnock would allow Mrs May’s withdrawal agreement to return. I would put money on that agreement coming back, sooner or later, maybe with a tweak or two. In a fit, either of exhaustion or realism, that Bill will go through. It may be that history will say that there was a woman, St Theresa of Maidenhead, who laid down her political life to achieve an agreement. If that happens, much of the last three years will have been wasted. I am not the only one putting money on it coming back, as it may be the only solution.
The right reverend Prelate raised the notion of vision. People often talk about the vision of Britain after Brexit. I ask what the European vision is. If this had been put before the public three years ago, the outcome might have been different. I have been looking for a European vision for more than 25 years, since I decided that I did not want any part of it. The only answer has ever been more union, more Europe, marching on. Foreign policy has been raised. It has made us weaker. What is the European attitude towards Iran, Russia, China or the Middle East? We get division, hesitation and some countries that are beholden to Russia, one way or another, because of gas or their former existence under the Soviet shadow.
The noble Baroness asked some questions about the European attitude. The European attitude towards Iran is clear: it wishes to sustain the joint agreement, which stops Iran developing nuclear weapons, and to ease sanctions on Iran. Its position on Russia is clear: it intends to maintain sanctions against Russia, because of its interference in Ukraine and seizure of Crimea. The attitude towards China is clear: the European Union believes that many Chinese trade practices are wrong and need to change. On the Middle East, it is clear that we have supported a two-state solution ever since the noble Lord, Lord Carrington, persuaded the European Union to take it up in 1980. Is that enough?
There was genocide in Kosovo and nothing was done by Europe. Crimea was taken over and nothing was done by Europe. Europe is not paying its subventions to NATO.
Then we look further into Europe, which is much vaunted for its human rights. In Catalonia, strivers for independence are in prison. Poland lacks judicial independence and freedom of speech and refuses to take any except Christian migrants. Italy is chaotic. Greece has been driven into poverty, and there is youth unemployment in Spain and Portugal. In Germany and many other countries, the right wing is on the rise. In France, the gilets jaunes are an expression of a much deeper malaise. French security is an oxymoron, as is Belgian intelligence. I will be happy for Hansard to record my deep fears about the future of the European Union because empires—it was a Franco-German empire and is now just a German empire—end like this, with too much power in the middle and too much unhappiness on the periphery, and the push-back gives rise to the extremism which we see rising around Europe and which is lapping at our ankles now.
On that count, I think that our membership cannot but be something of a record of failure to stem what has happened in Europe. I wish the other 27 well in future, but if I were a citizen of one of the countries I have just mentioned, I would feel very fearful for my future welfare. I hope that we can get some answers from the Benches opposite about what the Bill will do to prevent the eternal burden of membership of the European Union.
My Lords, as a woman I find it very difficult to get in in these sorts of debate, but I rise to speak on the European Union (Withdrawal) (No. 6) Bill and to contribute to the scrutiny. I am delighted to follow the noble Baroness, Lady Deech. We should thank her for the excellent speech she made yesterday which helped us to move forward and to be here today to scrutinise the No. 6 Bill. I am also grateful for the midnight peace talks admirably led by the new Chief Whip. Thanks to him, we all had some beauty sleep.
My amendments were not reached yesterday, but I was horrified by the way the procedures of our House were being perverted. I knew a plot was afoot because on Tuesday I walked into the Moses Room by mistake. I was too well-behaved to eavesdrop or to tweet what was going on—I have a good convent education to thank for that. Scrutiny is at the heart of the work of this House, as I think we agreed yesterday. Today’s debate and tomorrow’s Committee and Report stages give us an opportunity to go through this Bill line by line, which is what I hope we will be able to do.
I believe there is growing evidence of the negative impact of Brexit on the economy and society. I am in business, and uncertainty has been rising. It is extremely difficult for all involved. Noble Lords will know that I am a remainer and have worked for most of my career on EU matters. However, I share the view of growing numbers of people in this country that we must get on with Brexit. Months, or even years, of delay to Brexit day, which I think this Bill accommodates, will make matters worse, not better. We cannot have another three years of going round in circles. I think that is a risk. We need an agreement.
However, as I have said on a number of occasions in this House, from my long experience in Brussels, we have to keep open the option of no deal; otherwise our negotiating position in the Brexit negotiations is undermined. Indeed, on the matter of no deal, I was glad to hear from the right reverend Prelate the Bishop of Leeds, who asked us to look critically at the actual impact of no deal. I took some comfort from the Statement earlier this week by my noble friend Lord Callanan, and I know that the Chancellor of the Duchy of Lancaster is heading up no-deal contingency planning with enormous drive and professionalism. I think the pace of transformation is at a completely different scale and rate from what we saw under the May premiership. That is just in case we cannot come up with the agreement that we want.
On the matter of the Chancellor of the Duchy of Lancaster, he said on “The Andrew Marr Show” on Sunday morning that there would be no shortages of fresh food, but the British Retail Consortium, with which the noble Baroness will be very familiar from her work with one of our major food retailers, immediately said that that was categorically untrue. Does she accept what the Chancellor of the Duchy is saying, or does she accept that the trade association for the business in which she used to work knows what it is talking about?
I know what I know and I know what I do not know, and I know that the Chancellor of the Duchy of Lancaster is pushing things forward with an enormous amount of energy. No doubt after that exchange he will have been straight on to Defra, or whoever is responsible for these things, to talk further about the arrangements. Clearly, there are going to be problems from Brexit, whether with a deal or with no deal, and of course I know that food is a particularly difficult area. However, I am saying that we need to have proper management across the board, and I think we are seeing signs of that.
You have to look at both sides of the argument, but this debate has been very one-sided so far. I am interested in talking about the Bill rather than wider polemics or history, which I can help the House with less. My current inclination is to oppose the Bill and vote against it if I have the opportunity.
That brings me on to my questions, and I hope the noble Lords opposite—I see that the noble Lord, Lord Rooker, is in his place—will be able to help me with a more detailed justification of the Bill’s provisions so that there will be more explanation and fewer polemics in the debate. The Bill as it stands—and I have read it—appears to force the Prime Minister’s hand. It seems that he would have to accept almost any deal that the EU offered up. I am also concerned that the Bill gives the EU too much power over timing. Clauses 3(1) to (3) seem to tie the Prime Minister’s hands quite tightly. I am not sure what Clause 3(4) does and whether it moderates any risk.
I am keen to assist with the scrutiny of the Bill, but I fear that we may come to regret some of its provisions, especially if we do not look very carefully at something that was pushed through at great speed under the guillotine culture of the other place, which we discussed yesterday. We need to find the right result for our economy and our people and to end this cloud of uncertainty that is a real problem for the country. I hope I am wrong and that this will help us, but I remain extremely unsure.
My Lords, it is a pleasure to follow the noble Baroness, with whom I have seen eye to eye on almost all business questions—certainly the majority of them—in the past.
Before I comment briefly on the Bill itself, I shall make two preliminary remarks. The first is that, as a former Northern Ireland Secretary, I strongly endorse the remarks and arguments made by my noble friend Lord Hain. He was not indulging in hyperbole. This is reality; it is real-life politics in Northern Ireland. There is an enormous amount at stake and any of us would be very ill-advised if, for the sake of boredom with the subject, including the backstop, we were simply to pass over what he has said. There are genuine risks involved in relation to peace in Northern Ireland.
Secondly, I will comment on the intervention of the noble Lord, Lord Hayward. From the discussions I have had in national capitals and in Brussels, I can confirm that he is absolutely right that no proposals have been made by the British Government that are negotiable and would lead to a deal being concluded in October, November, December or any other month. However, certain ideas are being canvassed which concern the sectoral coverage of the backstop, its possible duration and the conditions surrounding both those aspects of it. The reason in my view that they have not been tabled is that a judgment has already been made that they will be unacceptable to those with whom we are going to negotiate. They involve a compromising and an undermining of the backstop which would negate its purpose and effect.
Therefore, the chances of what is being considered in Whitehall and was taken to Brussels by David Frost —who is a credible interlocutor and diplomat representing the British Government—being accepted in Brussels are hovering on zero. That is why we cannot take at face value the Prime Minister’s statement that he is negotiating in good faith. I do not believe that he wants to negotiate a deal. I think he would like to present, as it were, a fait accompli—something that he would ideally like to see—but not to negotiate. That is simply not going to happen.
I support the Bill for one reason, which is that crashing out of the European Union on 31 October without a deal would be, to put it mildly, highly sub-optimal for our country. It would prevent us from securing the continuity of our enforceable trade rights in what is our biggest export market in the world; it would prevent us from securing the continuity for many businesses operating in the European market of their enforceable business contracts. There are a host—a waterfront—of pacts, agreements and laws that underpin our commercial and related relationships with the European Union that have been built up over half a century, all of which we would be unable to guarantee the continuity of from the stroke of midnight on leaving the European Union without a deal.
I am not saying that aircraft would fall out of the sky or that many of these agreements would simply disappear and dematerialise before our eyes. However, over time they would come to be contested. There would be people, for a variety of reasons, wanting to pull threads and then pull a rug from underneath a variety of these pacts and agreements. If we were to leave without securing their continuity, we would create the risk of huge damage and jeopardy to our commercial relations, and therefore to our economy and to the jobs, livelihoods and investments of hundreds of thousands of people in Britain.
It would also do something else: it would destroy what lingering goodwill exists in Europe towards us. If we were to crash out and leave in such a disorderly way, it would inflict great damage not only on our own country but on all member states of the European Union. Such an act would make their willingness and our ability to negotiate a future free trade agreement between ourselves and the European Union infinitely harder to achieve. For that reason also, we should avoid crashing out without a deal.
I am listening to the enormous expertise of the noble Lord and indeed I am in considerable agreement, particularly about the crash-out, which in a way I am rather happy this Bill possibly postpones and possibly avoids. I am listening also to the great expertise of the noble Lord, Lord Hain. But are they both quite sure that the enormous amount of work that has been done on volumes such as the one that I have here on alternative arrangements in the unique circumstances of Northern Ireland, which is quite unlike any other border in the world, are non-starters before they are even discussed in Brussels? Is he quite sure that all the proposals for special regions, trusted traders and new arrangements for all-Ireland animal livestock and so on can be thrown out of the window before we even start? I am not so sure myself.
Nor am I. I am not so sure that we should just push them all to one side as though they have absolutely no potential whatever. That is not my view. My view is that they are not realisable in the foreseeable future and that, in the meantime, we would put the Good Friday agreement and the peace process in Northern Ireland in great jeopardy in a way that would be unjustified and unforgivable. There is a very interesting discussion to be had about the future. It depends on certain modalities, technology and related approaches that have potential—I fully accept that—but they are not for now; in my view, they are for the future.
There is not only the obvious economic, business and commercial argument to be had concerning people’s jobs and livelihoods that are at stake; in my view, there is also a very strong democratic argument to which we should attach great importance in our consideration of this Bill. Quite simply, it is that there was no mandate from the 2016 referendum for a no-deal Brexit. I know that people will say that it was not explicitly ruled out, but to all intents and purposes it was ruled out by the fact that nobody referred to it, nobody explained it, nobody justified it and nobody set out the arguments for it. Not one of the advocates of the leave campaign ever entertained the idea that this would be the outcome of our leaving the European Union.
Such a possibility was almost literally airbrushed out of the picture by the promises that were made by the advocates of the leave campaign—that getting a deal would be “the easiest in history”. Plus, there was a later guarantee—I remember that “guarantee” was the word used by No. 10 in repeating what the then Brexit Secretary, David Davis, had said. The precise words used were that we would have the “exact same trade benefits” after we left the European Union. Not only has that promise of the easiest trade deal in history turned out to be wrong and unfulfillable but the exact same trade benefits will, as we know, be nothing of the kind. They cannot be anything of the kind. We will sustain frictionless trade that is exactly the same as the trade benefits that we have at the moment only if, at the very least, we stay in a customs union with the European Union and fully in the single market. That is the only way in which those promises that were made—that guarantee put forward by No. 10 —could possibly be redeemed, yet it is firmly, consistently and explicitly excluded by the Government.
I have a point of order about the non-envisioning of a no deal. Of course it was not raised at the time. First, Article 50 mandates that the EU shall negotiate a treaty, which it has failed to do. Secondly, it was never envisaged that the remainers would fight this all the way along for several years. Thirdly, the agreement that we talked about in a broad sense and was mentioned at the time was to do with trade. The actual withdrawal agreement, when we get to it, is about much more than trade. In that sense, it is perfectly understandable that there was no explicit discussion of no deal.
I do not remember any of those intricacies, highways and byways being set out by anyone at the time or since—but, of course, the House will be interested in what the noble Baroness has to say.
The fact that any possibility of maintaining frictionless trade has been explicitly excluded by the Government is extremely serious for the manufacturing sector in this country and the long-term health of our economy. I do not see and cannot understand how, given the nature of just-in-time, sophisticated manufacturing supply chains and the way in which they operate between the UK and the continent, it will be possible for Japanese car companies or Airbus or any significant manufacturing enterprise to sustain production in Britain in the medium term.
That does not mean to say that they are all going to pull stumps, shut the doors and pull the shutters down and leave the day after tomorrow. Of course they are not, and any sense that they might is an absurd piece of hyperbole. However, over time—by which I mean between five and 10 years and probably on the shorter end of that spectrum—these great manufacturing companies are going to have to make new arrangements. They are going to have to move production in a way that enables them to secure continuity of their supply chains and the frictionless trade that they will no longer have when sustaining production in this country.
Let us not go back over all the customs union and single market arguments. I do not know what has happened to the Kinnock amendment and his and his colleagues’ advocacy of Norway. All I would say is that it would appear that there is no political possibility of those options being reintroduced or attracting and sustaining a majority, certainly in the other House. Let us acknowledge that they would in any case raise issues of regulatory dependence by this country on the European Union, while having no say in the making of those regulations.
I do not dismiss that. Having been on both sides of this as a UK Business Secretary and a member of the European Commission, I take rather seriously the idea that we in this country would simply be on the receiving end of laws and regulations made in Brussels over which we would have been able to express no view. There are real issues involved here and I acknowledge them.
In conclusion, the central point—and the right reverend Prelate the Bishop of Leeds made it earlier—is that the referendum in 2016 was an in/out one. It was an in-principle referendum. It was not about the how and the terms on which we would leave the European Union. No hint of those terms was spelled out between a soft and a hard Brexit, and of course there was absolutely no indication of leaving without n deal at all.
So now, as we find ourselves, at the behest of the new Prime Minister, hurtling towards a no-deal exit, I believe that the Government should accept that this really cannot and should not happen without the express approval either of Parliament or the public. I will wind up, if I may—it is nice to see the Government Front Bench intervening in a debate at long last. Here is my further point in conclusion. I do not believe that the express approval of the British public for how we leave the European Union can possibly be expressed by means of a general election.
The noble Lord is maintaining that there is no debate about what would happen after the referendum. Does he not recall that the leave people made lots of forecasts—some of which have not happened—and that the Government spent a fortune sending leaflets to every household in the country, warning about all the problems in great detail? There was a huge amount of debate at the time of the referendum. It was not simply in or out and nothing else.
Perhaps my recollection is at fault, but I do not remember a huge amount of debate about the respective merits of a soft and hard Brexit, let alone a no-deal Brexit.
In conclusion, I do not think that you can arrive at a clear choice about how we leave the European Union by means of a general election in which so many issues, subjects and personalities are at play. We should look to a clear-choice referendum where the options are properly explained and a full debate is had. The public can give their final say one way or the other about how—and, if the how on offer is unsatisfactory, if—we eventually leave the European Union.
It may be that the Government want one of these options to be a no deal. If so, it is up to the Government to put forward a no-deal option in a clear, final-say referendum. If they want to do that, so be it. If they have exhausted all the alternative negotiating possibilities, let that be put fairly and squarely to the public in a referendum. It must be a clear alternative—a clear choice—that the public are asked to make. Without it, I am afraid we are never going to find a way of resolving what is a most acute conundrum.
My Lords, somebody died this week who was a prominent northern circuit silk—a Queen’s Counsel—in my years in the law. He was known throughout the profession as the Alka-Seltzer because he settled everything. It was of great credit to him and brought him great repute. It is a pity that there are not more Alka-Seltzers in both Houses of Parliament today.
I speak as a remainer who has long been reconciled to having to leave. I strongly and consistently supported the May deal over recent months. One of its merits was that it satisfied no one. There would be no winners, and only when there are no winners are there no outright losers who will continue to bedevil relations in this country.
I am no supporter of the Prime Minister, nor of his team. I am against Prorogation. I am against crashing out without a deal. I am against the narrowing down of the basis of the Tory party and almost everything else. However, I cannot support this Bill. It is truly remarkable—an Opposition Bill; a curiosity which raises one’s suspicions from the outset. It is designed and calculated to have these twin consequences. First, it immediately tells the EU 27 that, if they do not now offer a more acceptable deal than the May deal, instead of the no-deal Brexit—the Prime Minister’s intended consequence which the EU 27 must, heaven knows, in logic be desperate to avoid—they can rest immediately secure in the knowledge that, without an acceptable deal, we will instead remain for at least three months, and who knows on what recurring basis into the future, on whatever terms they choose to impose.
The second twin consequence is that, in the event that there is no deal by 19 October, which is logically more likely because of the weakening of the negotiating position—the first consequence I mentioned—the Bill compels the Prime Minister of this country to go to Brussels, cap in hand, no doubt with Dominic Cummings to heel, in order not merely to seek but to obtain and secure a further extension of what has already been twice extended, on whatever terms the 27 choose to impose this time.
Ordinarily, of course, one normally simply accepts a majority decision of the House of Commons. This House has its very limited scrutiny and revision role. It plays ping-pong, a misnomer if ever there was one. In the game of ping-pong, you are allowed to return service, but that is it. If the server then comes back at you, you are, just occasionally, allowed one more shot. At that stage, your opponent—and he is an opponent—is entitled to win.
In my respectful submission, I seriously question why the usual convention should apply in the particular circumstances of this case, when those promoting this Bill are at one and the same time intent on compelling the deep abasement of our sitting Prime Minister and yet refusing the Government the opportunity by general election to reinforce its right to govern, which we generally take for granted. It seems pretty difficult to me to suggest that the promoters of this Bill are obviously faithfully fulfilling the clear will and mandate of the electorate. The country really wants an end to this. Bring on the Alka-Seltzers to achieve it—by adopting, with some sensible modification, if necessary, the May solution.
My Lords, I had not meant to intervene in this debate—and that is true. Having sat through much of the night, benefiting from the wisdom of my noble friends Lord True and Lord Dobbs while envying my noble friend Lord Forsyth—by then in his sleeper on the way to Scotland as the rest of us dealt with the filibustering that he had launched with his usual panache—I thought that I had probably had enough of all of this. However, one of the dangers of coming in and listening to a debate is that one is provoked into wanting to make one or two contributions. This is particularly the case whenever I listen to my noble friend Lord Howard. I can honestly say that, while I have disagreed with him on many subjects over the years, I have never doubted that he was anything other than a good chap.
I will come back to good chaps in a moment. There were two points I wanted to make as prequels to three points—which I will cover very briefly because they have been dealt with admirably by the noble Lords, Lord Hain and Lord Mandelson.
I want to endorse what was said earlier about the departure from the Government of the Higher Education and Science Minister, Jo Johnson. I will not make the obvious points about Johnsons and one’s preference. However, Jo Johnson was at my university, where I am now a chancellor. I did not always agree with the legislation he brought forward on higher education in the last Session, but he was an outstandingly good and conscientious Higher Education Minister, as well as very intelligent. He is a real loss to the Administration, and I hope he is not a loss to public service for family reasons. He is a very good man.
Secondly, I want to identify myself with the remarks made by my noble friend Lord Cormack earlier about the treatment of some of our former, present colleagues. I am sure it was inadvertence which meant that my noble friend Lord Howard did not refer to them either. We were both colleagues of theirs in government. I am sure he shares my high view of their public integrity and public service. My noble friend has known one or two of them even longer than I have—he was at Cambridge with them. I am surprised that we did not hear about the appalling and hypocritical way in which they have been treated. I hope that will be undone as rapidly as possible; it was not Mr Cummings’s or Mr Johnson’s finest hour.
I shall briefly make three points, which have been touched on in particular by the noble Lord, Lord Mandelson. The first is on the trade negotiations. We have been told again and again that the reason this Bill is so suspect is that it cuts the Prime Minister off at the knees in the negotiations over our future relationship with the European Union but, as my noble friend Lord Hayward pointed out, the question is: what negotiations? There is no rustling in the shrubbery. You ask the President of the Council, the President of the Commission, the President of the French Republic, the Chancellor of Germany and the Taoiseach about the proposals that justify our Prime Minister in his observation that things are going well and the Government are putting forward all sorts of bright ideas, but there is no reply. It would be nice to hear from the Front Bench later this evening what the state of play is in these negotiations and what we are proposing—presumably somebody knows. Maybe we should just take it from Mr Cummings, the éminence grise in the regime—maybe one should call him the éminence—who has brought a new approach to personnel management at No. 10, that all this is a sham. But if it is a sham, that is all the more reason for having this legislation in place. If it is not a sham and we are making terrific progress, it seems very likely that we need rather more time to complete the progress, hence one of the advantages in a reply to a question posed earlier, and hence the advantage of a few more months being built in, if absolutely necessary.
The second point, related to that, is touched on by the “good chaps” theory, which, to be operable, needs a sense that the people you are dealing with are good chaps. One thing we know, and which underpins some of the discussions about when there should next be an election, is that there is a strong sense and suspicion—I put the point no more firmly than this, but I use a word used by my right honourable friend Kenneth Clarke—of the disingenuousness of the Prime Minister. Maybe there are those who are not absolutely sure that he and the people who surround him are good chaps. We know that eight of them voted again and again as bad chaps against the proposals that the last Prime Minister brought forward. One reason we have had this long period of delay is the activities—the high productivity rates—of the ERG during the negotiations so far.
There is another aspect of the “good chaps” thesis of the noble Lord, Lord Hennessy, which needs touching on. I thought my noble friend Lord Howard was rather curious in the division he drew between the Executive and the legislature in international affairs and international negotiations. I, like him, was a Secretary of State for the Environment. I used to go to international negotiations on the environment with the reports of Select Committees and with legislation from the House of Commons determining what I should try to do about ozone-depleting substances, or water or air quality. When I was a Development Minister, I had to operate within the terms that the House of Commons had agreed on the proportion of our GDP to be spent on overseas development. I had to comply with what the OECD said about that as well. When I was a colonial despot, I had to implement what Parliament had decided about the joint declaration and the terms within which Britain should exercise its stewardship in our last colonial dependency. So do not tell me that there is an absolute division between what Executives can do abroad and what the legislature has a right to determine.
My final point is about Northern Ireland. I shall not repeat the points made very well by the noble Lords, Lord Hain and Lord Mandelson, nor shall I repeat what I have said on other occasions in this House about the Northern Ireland border. It is a sign of the beginning of dementia when you start quoting your own