Friday 6th September 2019
(5 years, 2 months ago)
Lords ChamberEuropean Union (Withdrawal) (No. 2) Act 2019 View all European Union (Withdrawal) (No. 2) Act 2019 Debates Read Hansard Text Amendment Paper: HL Bill 202-R-I Marshalled list for Report (PDF) - (6 Sep 2019)
Lord James of Blackheath
Lord James of Blackheath (Con)
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—
Lord Blunkett (Lab)
I wonder whether the noble Lord would be prepared to give way just for one moment. I appeal to him to conclude, because it is not in either his interests or the interests of the Committee for him to continue.
Lord James of Blackheath
I thank the noble Lord. It is, however, in the interests of the British public, who, in the end, will have to vote blind on this issue. They need to be informed but nothing has been done to bring that about. I beg to move.
Viscount Hailsham (Con)
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.
Baroness Hayter of Kentish Town (Lab)
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.
Lord Adonis (Lab)
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 Earl of Courtown (Con)
My Lords, the Minister for Exiting the European Union is at an important meeting at the moment but will be joining us.
Lord Rooker (Lab)
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.
Baroness McIntosh of Pickering (Con)
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.
Lord Ashton of Hyde (Con)
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.
The Lord Speaker (Lord Fowler)
The mover of the amendment has the right to reply at this stage.
Lord James of Blackheath
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—
Lord Forsyth of Drumlean (Con)
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?
Lord James of Blackheath
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.
Baroness Deech
Baroness Deech (CB)
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.
Viscount Hailsham
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.
Lord Leigh of Hurley (Con)
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.
Lord Forsyth of Drumlean
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—
Lord Hunt of Kings Heath (Lab)
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.
Lord Forsyth of Drumlean
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.
Viscount Hailsham
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.
Lord Forsyth of Drumlean
And that would be a very good question to ask at Second or Third Reading, but we are in Committee here and we are discussing a particular amendment.
Lord Forsyth of Drumlean
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.
Lord Stirrup (CB)
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?
Lord Trevethin and Oaksey (CB)
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.
Viscount Trenchard (Con)
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.
Baroness Ludford (LD)
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?
Lord Forsyth of Drumlean
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?
Baroness Ludford
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.
Baroness Falkner of Margravine (Non-Afl)
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”.
Lord Cormack (Con)
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.
Lord Forsyth of Drumlean
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.
Lord Cormack
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.
Lord Kerr of Kinlochard (CB)
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.
Lord Lilley (Con)
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.
Lord Kerr of Kinlochard
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.
Lord Lisvane (CB)
My Lords, on a slightly more pedantic level, I will try to assist the noble Viscount, Lord Trenchard, with his earlier question. I think he thought that Lords sitting days had not been statutorily defined. They are actually defined in Section 13(16)—
Lord Lisvane
I promised pedantry. They are defined in Section 13(16) of the European Union (Withdrawal) Act 2018.
Viscount Trenchard
I thank the noble Lord for his clarification, but that does not affect my basic premise that the Bill nevertheless refers to “Lords sitting days”, “days” and “calendar days” in a confusing manner. That also needs to be clarified.
Lord Goldsmith (Lab)
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—
Baroness Butler-Sloss (CB)
I thank the noble and learned Lord very much for allowing me to intervene. Has not the noble Lord, Lord Kerr, given us the answer? Does it not just simplify entirely the amendment before us?
Lord Goldsmith
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.
Lord Trevethin and Oaksey
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?
Lord Goldsmith
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.
Lord Lilley
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.
Lord Rooker
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.
Lord Lilley
Did the noble Lord notice that the noble Lord, Lord Kerr, did not come back to deny that the sort of discussions I suggested could take place, which would implicitly involve conditions?
Lord Kerr of Kinlochard
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.
Lord Rooker
That being the entire point, I invite the noble Baroness to withdraw her amendment.
Baroness Deech
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.
Lord Wallace of Tankerness (LD)
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.
Baroness Deech
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.
Baroness Neville-Rolfe
Baroness Neville-Rolfe (Con)
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.
Lord Goldsmith
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.
Lord Wigley (PC)
Will the noble and learned Lord explain, if the Prime Minister is faced in a Council meeting with the question of a change along those lines—if there were conditions placed upon it in the meeting—how will this subsection address that possibility?
Lord Goldsmith
Given what the Prime Minister has said, it is not going to happen. But the prerogative of the Prime Minister is retained under this provision—as it is in the other Bill.
Lord Mackay of Clashfern (Con)
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.
Lord Brown of Eaton-under-Heywood (CB)
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?
Lord Goldsmith
No. I want to be clear that there is no certainly commitment coming from these Benches that that is what the Bill requires. If it is passed into law, it contains those words, but it does not constrain what the extension is used for.
Lord Rooker
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.
Baroness Neville-Rolfe
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.
Lord Mackay of Clashfern
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.
Lord Forsyth of Drumlean
If the noble and learned Lord is arguing that the letter has to have a reason in it, does that not mean it is conditional?
Lord Mackay of Clashfern
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.
Lord Forsyth of Drumlean
The noble and learned Lord is far smarter at this than I am, but the noble Lord, Lord Kerr, argued that it was not possible for any conditions to be applied. So why is it necessary for us to give a reason?
Lord Mackay of Clashfern
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.
Viscount Trenchard
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.
Lord Rooker
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.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
My Lords, I apologise for forgetting the letter.
Baroness Chisholm of Owlpen (Con)
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.