European Union (Withdrawal) (No. 5) Bill

(Limited Text - Ministerial Extracts only)

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Lord Goldsmith]

My Lords, I will respond on my Amendment 5, which is the one that has been moved. A couple of points need to be emphasised.

As has been discussed already, we are in unusual circumstances, and they demand some unusual responses. This Bill does not take away or give back the entirety of the royal prerogative. It says—this is why I made an intervention earlier—that it is for the other place, on a Motion put forward by the Prime Minister, to say what date she should seek. It may be that the European Council will accept that date, in which case it is done so far as the negotiations are concerned. It may come back with a different date, and the questions we have been considering are for those circumstances. Does she have to seek approval during the next two to three days before she can respond to it, or is she able to respond by agreeing to it or by putting forward a slightly different proposal?

There are two different amendments—my amendment would remove the fetters requiring her to come back, and that of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, would enable her to reach an agreement without having had that prior approval. It seems to me that a balance is being struck between royal prerogative and necessary control by Parliament. It is absolutely the case—as the noble Lord, Lord Faulks, said—that of course the royal prerogative can be adjusted and amended by what Parliament says. On this occasion, the other place has said: “We believe that we should tell the Prime Minister what date she should seek. What happens after that will depend upon the circumstances but, whatever it is, it has to be done in this time”.

I invite the House to agree Amendment 5 and then we can move on to the other amendments.

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

As the noble and learned Lord, Lord Goldsmith, was kind enough to point out, I have not benefited from the disadvantages of a legal education, but I think I know flawed and badly drafted legislation when I see it. Nevertheless, it remains the reality that this has been approved by the House of Commons, and that is a principle that I believe should be respected. Noble Lords opposite can be assured that I will remind them of their newfound enthusiasm to respect the will of the House of Commons when we come to future legislation.

I will comment first on the amendments. As my noble friend the Leader of the House said, the Government support Amendment 5, moved by the noble and learned Lord, Lord Goldsmith. This seeks to remove Clause 1(6) and (7) from the Bill. As currently drafted, should the European Council propose a different date to extend Article 50 from that agreed in Parliament by virtue of approval of the Motion as set out in the Bill, the Bill would require the Prime Minister to return to the House of Commons on 11 April and put the EU’s counterproposal to that House for approval through a further Motion. As the Government set out last week, we have very real concerns about how that would work in practice.

The Government hope that Amendment 7 will also be successful, which would allow us to reach agreement with the EU on Wednesday, so long as that extension ends no later than 22 May. The Government have been clear, as I said earlier, that we are seeking an extension to 30 June.

In response to the question posed by the noble and learned Lord, Lord Goldsmith, and the noble Baroness, Lady Ludford, scheduling of any further debates after the European Council on 10 April is a matter for the other place. I am sure it is paying close attention to our debates.

[Lord Goldsmith]

I think the Minister said, in relation to the date, “not later than 22 May”. It should be “not earlier than 22 May”. Perhaps he can confirm that. It is obviously a very important difference.

[Lord Callanan]

Yes, I take the noble and learned Lord’s point. He is right on that.

As I said, I am sure that the other place is paying close attention to our debates and will address this when the Bill returns to the House of Commons for further debate this evening.

Amendment 5 agreed.

--- Later in debate ---

[Lord Callanan]

Let me reassure my noble friend Lord Forsyth that I am not responsible for this Bill either, although I have to say that I am quite enjoying watching the Opposition perform procedural somersaults and disavow everything that has been said previously on matters such as respecting the House of Commons, affirmative resolutions and everything else. Nevertheless, we return to the subject.

It is the position of the Government that Clause 2 should remain part of the Bill. I appreciate the concerns expressed on this issue and the sentiments behind them, and of course I recall vividly the lengthy debate we had on parliamentary scrutiny of the use of delegated powers more generally during the passage of the EU withdrawal Bill. I seem to recall the Liberals arguing for precisely the opposite position at that stage, but consistency has never been their strong point. As noble Lords are aware, the Government do not support the Bill or the conditions it is attempting to impose on government. However, as I said earlier, given the support commanded in the other place, the Government have decided that they must intervene to improve and limit its most damaging effects.

The Bill creates a new parliamentary process that the Government must adhere to in order to agree an extension of Article 50 with the European Union, if the European Council proposes an end date to the extension different to that proposed by the House of Commons. Given that the European Council is on Wednesday 10 April and exit day is just two days later, there is a real risk that we will be timed out of agreeing an extension and therefore accidentally leave the EU without a deal. It would be extremely ironic, and it is clear the supporters of this Bill are opposed to that outcome.

Noble Lords will be well aware—indeed, I answered questions on this topic earlier today—that agreeing an extension is not a decision the UK can take alone. It must be agreed unanimously with all other 27 EU member states. Following this, we must also amend the date of exit in domestic law to ensure that the statute book accurately reflects what is set out in international law.

Under the draft affirmative procedure, both Houses are required to debate and approve the statutory instrument, which significantly increases the risk of this not being in force in time for 11 pm on 12 April. At that point all other EU exit SIs will come into force, regardless of the agreed extension date, causing considerable uncertainty and confusion for many. It is for that reason that the Government tabled this amendment—now Clause 2 of the Bill—in the other place, changing the procedure applying to the power in the 2018 Act from the draft affirmative to the negative procedure, and it is for this reason that the elected Chamber supported that approach. Nobody wants to take that risk.

Furthermore, not only has Parliament repeatedly argued in favour of an extension to Article 50 and against leaving the EU without a deal, both Houses have already debated and approved one SI to defer exit day. There is clearly widespread approval to use this power in such a way. As I am sure noble Lords are all aware, while the power has a significant effect—ensuring a functioning statute book—its scope is limited to changing exit day to the date already agreed in international law by the Prime Minister, and the SI cannot be made until that point. It is for this reason that the Government tabled the new clause and that the elected Chamber voted with a large majority to support this. I hope this House will support the same sentiment and allow this clause to stand part of the Bill.

[Lord Framlingham]

In among what is obviously an increasing shambles, can the Minister confirm that we leave the European Union this Friday by an existing Act of Parliament, and that the Government have conceded that—although this is not their chosen course of action—it could be quite successfully managed?

[Lord Callanan]

I answered a question from the noble Lord earlier today on that, and I am not sure there is much benefit in going back over those subjects. We are extensively prepared for no deal because that is the legal default, but we are now supporting this legislation—however flawed—that has been sent to us by the House of Commons.

16:53

Division 1

Ayes: 280

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Labour: 79
Crossbench: 66
Conservative: 61
Liberal Democrat: 57
Independent: 12
Bishops: 2
Plaid Cymru: 1

Noes: 46

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Conservative: 33
Crossbench: 7
Independent: 3
Democratic Unionist Party: 2
Labour: 1