European Union (Withdrawal) (No. 5) Bill

(Limited Text - Ministerial Extracts only)

2nd reading (Hansard): House of Lords
Thursday 4th April 2019 Lords Chamber

[Lord Bilimoria]

The noble Lord, with all his experience, has pre-empted what I was about to say next. The European Union has played a blinder. Recently, I gave a master class at the University of Cambridge Judge Business School, where I am chair of the advisory board, using Brexit as a case study in textbook negotiating techniques. We have made all the mistakes—including on process, which the European Union dictated.

The biggest reason we are in the position we are is that the 27 different, disparate countries of the EU had one very clear mandate and one negotiator. How many times have our negotiators changed? The position of Brexit Secretary is a revolving door. That is why the EU has done so well: it has negotiated brilliantly and with a clear mandate.

Michel Barnier, in his speech on 1 April in Brussels, said clearly that the EU would accept the current deal, a customs union, a relationship similar to that with Norway or no deal, for which it claims it is better prepared than we are, having taken protective measures—though it has not done so willingly. Lastly, Michel Barnier said the EU will accept an extension, but it will need strong justification. What will that justification be? He has been clear that there will be a painful “political cost” for this extension and, if we have not left by 23 May, we will have to take part in the European elections. He also made it very clear that a long extension is for,

“a member on its way out”.

The uncertainty is something the EU will hate.

This evening, I was meant to be giving a lecture for the London Business School about brands. I thought about the brands of Great Britain and the UK—

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

The noble Lord should have gone.

[Lord Bilimoria]

The noble Lord may not like what I am saying, but it is true. There is lots he has not heard. It is so heartening to see heckling from a sedentary position from a Minister; it makes me even prouder of this House.

I thought about the brands of Great Britain and the UK and the world saying, “What is this great country, at the top of the world table, doing to itself?”

We must pass this Bill. We must extend Article 50. It must be a long extension and we must put it back to the people—today’s people, not the people who voted three years ago. We must put it back to today’s electorate, reflecting today’s world and today’s facts, not those of three years ago. When people are given that chance, it will be a two-thirds majority to remain in the European Union—the best deal by far.

--- Later in debate ---

[Lord Callanan]

My Lords, as this is not, of course, a government Bill, I am sure noble Lords will be delighted to know that I can keep my remarks brief. Legislation has been debated, scrutinised and passed by this House since July 2016 to prepare for our exit from the EU, including many statutory instruments that noble Lords have scrutinised thoroughly to ensure that in any scenario, our statute book will function properly and appropriately. At the most recent count, more than 500 statutory instruments have been considered by the SLSC and more than 200 SIs debated by this House under the affirmative procedure. However, the Bill before us today in the name of the right honourable Member for Normanton, Pontefract and Castleford offers little but constitutional ambiguity and greater, not less, uncertainty. The Government strongly oppose the Bill.

I agree with many of the criticisms of the noble Lord, Lord Howarth, my noble friends Lord Howard of Lympne, Lady Noakes and Lady Neville-Rolfe, and the noble Baroness, Lady Deech. The approach to this Bill risks setting an unhealthy and constitutionally irregular precedent for this and future Governments. The noble Baroness, Lady Deech, asked me a simple question: do we need this Bill at all? The simple answer is no. Most importantly, the fundamental flaws in its drafting not only undermine what it seeks to achieve but may even increase the risk of an accidental no deal next week. I also note the Lords Constitution Committee’s report and thank it for its efforts to produce its report so quickly.

Noble Lords will recognise the ambiguity that would arise should the Bill pass, particularly regarding the royal prerogative and the long-established convention that the Government of the day lead on our international negotiations. Heads of Government are able to enter into international agreements without preconditions set by the House that constrain their ability to negotiate in the national interest. This Bill not only calls that ability into question, it does nothing to provide any clarity on what we should, in fact, seek.

The other place has consistently demanded greater certainty for businesses and for citizens. Despite this, noble Lords will no doubt be very alive to the risk that the conditions imposed by the Bill bring to life the very real possibility that we cannot agree an extension in time, a point well made by the noble Lord, Lord Pannick, by my noble friend Lord Cathcart and at the end by the noble and learned Lord, Lord Goldsmith. This is because the Bill creates a new parliamentary process whereby any counteroffer on the extension of the Article 50 period by the EU must be put to Parliament and agreed on the day after the offer is made by the EU. As we saw at the European Council on 21 and 22 March, when the original extension was agreed, it requires a request by the UK, a decision by the 27 EU member states and then agreement from the UK.

I am pleased to say that yesterday the other place approved a government amendment to the Bill to change the parliamentary scrutiny procedure that applies to an SI, amending the definition of “exit day” from affirmative to negative.

The Bill creates processes that increase the risk of us being timed out, but, even if agreement were possible in time, we would still need to ensure that any extension agreed in international law was reflected in our domestic statute book. The Government considered it prudent to seek to amend the Bill to make the SI needed for this purpose subject to the negative procedure to ensure that our statute book reflects international law.

However, I regret that the other place did not pass the amendment that the Government put forward to address the dangerous constitutional precedent set by this Bill overall. It would have protected the Government’s ability to reach an agreement with the EU on an extension to Article 50. In doing so, it would have clarified the position on the royal prerogative to ensure that nothing in the Bill would prevent the Government being able to seek and agree an extension.

The Bill therefore remains fundamentally flawed. It could tie the hands of the Government and bring about a situation contrary to the purpose expressed by its movers. This legislation is not a sensible or desirable approach to take and I urge noble Lords not to support it.

[Lord Hannay of Chiswick]

Before he sits down, could the Minister answer two questions? I asked the first earlier, and I would be grateful for an answer. Have the Government taken the necessary steps to prepare for a European election should the extension go beyond 23 May? Secondly, I found missing in his remarks any recognition that the elected House had actually taken a decision—that it had adopted this Bill and sent it to us. If we adopt it on Monday, is he seriously saying that the Government consider themselves to be somehow above decisions taken by the two Houses? If so, that is a very peculiar constitutional suggestion.

[Lord Callanan]

Of course we do not. I can answer both his questions with the same statement. The Government will abide by the law of this country in all circumstances—both European Parliament election law and any law made by this Parliament—in the appropriate fashion.