Baroness Evans of Bowes Park
That Standing Order 72 (Affirmative Instruments) be dispensed with on Wednesday 27 March to enable a Motion to approve a draft affirmative instrument laid before the House under Section 20(4) of the European Union (Withdrawal) Act 2018 to be moved on that day whether or not the Joint Committee on Statutory Instruments has reported on it.
The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
My Lords, the Motion standing in my name will allow us to dispense with Standing Order 72 tomorrow so that we can take the SI that will amend the definition of exit day in UK law before the Joint Committee on Statutory Instruments has reported on it.
Whether or not we approve the SI, we will now not be leaving on 29 March. As noble Lords will know, the Article 50 period has been extended. Exit day has already been changed and it is important that domestic law is aligned with that. Without the SI coming into force, the domestic definition will remain set at 29 March —this Friday—and our statute book will not function correctly. We need to suspend the Standing Order because the JCSI has not yet had the opportunity to formally consider the SI, which was laid yesterday. The committee meets on a Wednesday afternoon and its reports are not normally available until the following Friday. The Government take the scrutiny of their secondary legislation very seriously and I do not move this Motion lightly.
I can tell the House that the extension SI was sent in draft to the JCSI’s lawyers at the end of last week to undergo pre-laying scrutiny, which is one of the highly valuable functions that the committee and its staff perform on behalf of both Houses. It is my understanding that the full Secondary Legislation Scrutiny Committee will, outside of its current working pattern, meet this afternoon to consider the SI and will make a report available to the House ahead of the debate tomorrow. I am grateful to both committees. I beg to move.
Amendment to the Motion
Lord Harris of Haringey (Lab)
My Lords, yesterday the noble Lord, Lord Robathan, made the interesting point that he was rather surprised by the assertion made by the Lord Privy Seal that the decisions of the EU Council trumped UK law. She was asked repeatedly about that, so can she clarify what has changed since yesterday so that she comes forward indicating that it raises some really big issues if we do not deal with that? If that is the case, is it therefore suggested that all these statutory instruments which people have been sweating over in the last few months do not in practice replicate EU law and move it into UK law? If there is a distinction between them, that is precisely what we were trying to establish during many of those debates. I would be grateful for that clarification.
The noble Baroness also said in her remarks a few minutes ago that the Joint Committee on Statutory Instruments usually meets at a certain time and reports on a certain date. Presumably there have been plenty of instances in the past when it has not met on those dates. Why was that not put to the Joint Committee?
Baroness Evans of Bowes Park
My Lords, my noble friends Lord True and Lord Forsyth are of course correct to say that it is not usual practice for the House not to consider SIs until the JCSI has both considered and reported on them. This is indeed an unusual request but I remind noble Lords that the House of Commons asked the Government to seek an extension last week. We have done that and laid an SI on the first sitting day that we could after a decision was made. I accept that noble Lords may not like that, but it is the position we are in, and I thank the noble Lord, Lord Newby, and the noble Baroness, Lady Hayter, for recognising that we are in exceptional circumstances. I have recognised that.
That being said, the practice has in the past been set aside where there is a clear case for an SI to be considered urgently. In this Session we have set it aside twice before, each time making a case on its merits, as I hope I have done today. The first instance was to ensure the continuation of the non-jury trial provisions in Northern Ireland; and the second was to control a substance under the Misuse of Drugs Act 1971. I reiterate to my noble friend Lord Forsyth that while the JCSI has not looked at this in detail, the extension SI was sent in draft to its lawyers at the end of last week to undergo pre-laying scrutiny.
I am surprised that noble Lords are now asking me to dictate the terms of how a committee meets. I do not think that in normal circumstances they would want me, as the Leader of the House, to start dictating what our independent committees do. I just ask that that is considered. The JCSI is entirely entitled to decide when, how and why it meets. I genuinely do not believe that it is for me to say that. If the JCSI reported in the usual way, as the noble Baroness, Lady Hayter, said, we would have to meet on Friday to consider it. I believe that noble Lords would like us to get this SI through, so that as the noble Lord, Lord Newby, said, we can have certainty, which is what we deserve to deliver for the country.
As noble Lords know, the terms of our exit from the EU are governed by Article 50 of the Treaty on European Union. On 22 March, last Friday, the UK agreed to EU Council decision 2019/476 to extend the period provided for in Article 50. The EU Council decision and the UK’s agreement to it constitute a binding agreement in EU and international law. It is important that the definition of “exit date” in UK law is changed before Friday because, as the noble Baroness said, that is when a significant amount of our EU exit legislation, including hundreds of SIs, is due to enter into force. Unless the date is changed, our statute book will not function properly. There will be clashes between UK and EU law, contradictory provisions will apply and, in some cases, new UK laws will permanently replace EU ones. Our domestic law would be left in a state of confusion and this could have serious consequences, which we all want to avoid, for businesses and the public.
I am very grateful to the noble Lord, Lord Pannick, for his comments: we are confident that the instrument is legally correct, but we will of course look in more detail at his comments today and respond to them in detail tomorrow, when, no doubt, we will have a further discussion.
Lord Lansley (Con)
I apologise for interrupting my noble friend, but the noble Lord, Lord Pannick, asked a very interesting question to which I would genuinely like to know the answer. My expectation was that the Government would lay a statutory instrument that would change exit day to 12 April and, if it were necessary to move to 22 May, would lay a further SI. I simply do not understand the motivation or rationale for putting both dates into the SI.
Baroness Evans of Bowes Park
The rationale is that we have two dates agreed with the EU, both now set out in one SI. That means that both situations are covered, which seemed a sensible approach. Again, we will obviously discuss the concerns of the noble Lord, Lord Pannick, and any others that noble Lords wish to raise now that the SI has been tabled, and we look forward to that further discussion tomorrow.
I personally share the frustrations of my noble friends Lord True and Lord Forsyth that we are not leaving the EU on Friday—I know that a number of noble Lords do not—but it is our responsibility to provide legal certainty for the people of this country, and given that the date of our exit from the EU has already been changed I believe it is our duty to take, discuss and, I hope, pass this SI.
Lord Framlingham (Con)
What does my noble friend suppose the effect will be on all the businesses that have prepared to leave on 29 March?
Baroness Evans of Bowes Park
I think that what businesses and citizens want is certainty. We have now had a decision between the UK Government and the EU that we will extend the date past 29 March. What we owe the country is to ensure that our legal system and statute book reflect that. We will have a further discussion about this tomorrow, but I believe that we as a House should discuss this SI and, I hope, pass it tomorrow to ensure that we have a functioning—
Viscount Ridley (Con)
My noble friend has comprehensively addressed the issue of this statutory instrument, but I do not feel she is addressing the point my noble friend Lord True made about the constitutional precedent that this sets.
Baroness Evans of Bowes Park
I have said that this is an unusual situation: that is why I am here asking the House to agree that we can do this. It is only right to do that. This has been done on a number of occasions. I am not saying in any way that this is a usual situation; I have tried to set out the timeline that has led us to this and I say again that I believe that, for the country, our discussing this SI tomorrow and—I hope—passing it will mean that this House has played an important part in providing certainty to our citizens and businesses so that we can move forward and leave in an orderly fashion. On that basis, I hope that my noble friend will consider withdrawing his amendment.
Lord True
My Lords, before I respond, will my noble friend comment on one thing? She said that it is not for her to ask a committee to sit on a certain day. The guidance from the JCSI to government departments states at paragraph 3:
“If, in exceptional circumstances, a Department wishes an affirmative instrument … later than the normal deadline to be considered at a particular meeting, a letter from the relevant Minister to the Chairman of the JCSI will be required setting out the reasons why expedited consideration is thought necessary and why the instrument was not laid sooner”.
Did the Government send such a letter to the chairman of the JCSI?
Baroness Evans of Bowes Park
I understand that my noble friend has written to the JCSI, but I repeat that it is for that committee to decide when it sits and to decide its programme of business. As I said, we have given a preview of the SI to the committee. I trust its judgment and I fear that, no matter what the pushing, I am not going to dictate what that committee does.
Lord True
I am afraid that that means that the Government have refused to accept an open offer from this committee to all government departments for expedited procedures—an extraordinary decision in the case of one of the most significant statutory instruments ever to be laid before Parliament, whichever side of the argument you are on.
The logic of what we have heard from my noble friend, whom I greatly respect, is this. Tomorrow, your Lordships’ House will be asked to meet and start considering this statutory instrument. A few minutes later, somewhere in this House, the Joint Committee will start deliberating, as we have heard, on its significance and potential impact. Your Lordships will be invited to take a decision; the poor old Joint Committee will reach some conclusions and your Lordships and the other place will never be advised of them before the decision is made. This is an absurd position. In any sense, it cannot be right.
We are talking here of printing. We live in the 21st century. Are we really saying that a committee that deliberates tomorrow afternoon cannot print a report and have it before your Lordships’ House by Friday? It could be put on pieces of paper like those in my hand.
Lord True
I am so grateful; that was a procedural point from the noble Lord, not a political one.
This is a sensible, grown-up House; we do not need to deal with these things by Division. Is not the sensible thing for the usual channels to take this away and for my noble friend not to press her Motion, which creates a precedent for the future? If this type of Motion becomes normal, it will have a chilling effect on future Oppositions and Governments as time goes by.
The sensible thing would be for the usual channels, in discussion with the Joint Committee, to take this away, have some discussions, not press this measure and report to the House tomorrow, before we can lay a document. In fact, they can lay a document while the House is still sitting this evening, or let us know by making a Statement. Then, we can decide whether it is necessary to go ahead with the farce of considering this tomorrow, while the Joint Committee is meeting down the Corridor. We could still then take the business later tomorrow or on Thursday. I do not accept the argument about printing. Will my noble friend consider having consultations with the usual channels and Cross-Benchers?
I was going to make the point that the noble Lord, Lord Pannick, made. I am not a lawyer and I said I would not go into the merits of the statutory instrument. As a lay man, it seems to me astounding that it was not the date—that it must be open to challenge. The other thing is the potential effect of a charge on public funds which might arise from staying in the European Union, which the Joint Committee also looks at.
It would be safer for this House and the other place to have the benefit of a considered report to which representations can be made. I urge my noble friend to take it away, consider it in the usual channels with interested parties and bring it back later tonight or tomorrow. If she will do that, I will reflect on what she said and decide whether I wish to divide the House, which I would rather not do. It is not my intention to do so in any circumstances and is not conditional on what she says. Will she consider that proposal?
Baroness Evans of Bowes Park
I am afraid I cannot give my noble friend that assurance. We have discussed this through the usual channels. This is an important SI that we need to see through and I hope I have explained the reasons why. I acknowledge that these are unusual circumstances—I have accepted that and said so quite readily at the Dispatch Box—but for the sake of the country we need to look at and discuss this SI tomorrow, as the House of Commons will. I hope my noble friend will withdraw his amendment, but I am afraid I cannot accede to his request.
Lord True
My Lords, I regret to say I find that a highly unsatisfactory response and not in the spirit of co-operation across the House. But I see no point in dividing if my Front Bench and the Labour and Liberal Democrat Front Benches are not interested in debating with the benefit of the Joint Committee on Statutory Instruments. There is very little a mere Back-Bencher can do, so I beg leave to withdraw my amendment.