European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019

Baroness Ludford Excerpts

Wednesday 27th March 2019 Lords Chamber

[The Duke of Wellington (Con)]

My Lords, I cannot resist rising to support this statutory instrument. As the noble Baroness, Lady Hayter, has already mentioned, last May a very sensible cross-party amendment was carried convincingly by this House, tabled by myself, the noble Baroness, and the noble Lords, Lord Newby and Lord Hannay. Therefore it had complete cross-party support. It was very unfortunate that the Government did not accept it. It was carried here but rejected in the other place.

At the time, the Government stated that they had no intention, under any circumstances, of seeking an extension. However, when first tabled in the other place, the original Bill—subsequently an Act—did not include a date. I fear that the date was only inserted at the behest of the European Research Group. We in this House argued that there was no point in putting in a date when it might have to be changed in circumstances which none of us could, at that moment, foresee. Now that the Government have agreed an extension with the European Union, clearly this statutory instrument must be passed. The Minister has already explained the legal chaos which would be created, now that it is agreed with the European Union, if the exit date were not to be changed in our domestic Act of Parliament. I hope the Minister will accept that point when he winds up.

Although the noble Baroness, Lady Hayter, was a co-signatory with me, I very much regret that I am unable to support her amendment to the Motion. We all have our views about the way the negotiations have been handled and the excessive delays which have occurred, but at this point, we really need resolution, and we must pass the statutory instrument. I hope the House of Commons will, in the next few days, reach an agreed position. If I was there, I would still support the Prime Minister’s deal. Should that not carry, I hope some alternative proposal comes forward. At this moment, we must have clarity for our citizens and our businesses, and, in my opinion, we must support this statutory instrument.

[Baroness Ludford (LD)]

My Lords, we on these Benches support this statutory instrument as a necessary measure to prevent confusion and uncertainty, although, as the noble Baroness, Lady Hayter, and noble Duke, the Duke of Wellington, have said, if the Government had listened to this House when it advised against putting in a fixed date, life would have been considerably easier. Both 29 March and the constant reiteration of the commitment to no extension were ideological fixations. Now, two of those are down out of three. I am looking forward to a Government U-turn on a people’s vote. That would make the trio.

We are sympathetic to the sentiments in the amendment in the name of the noble Baroness, Lady Hayter. I cannot improve upon what she said about the unfortunate way in which the negotiations have been conducted. This is not the place to go on at length about that, but the mess we are now in was predictable and, indeed, predicted. We agree that it would be very odd if the Government said that while they felt instructed by the people, they defied the will of the House of Commons, and indeed, as we have had cause to say before, they refuse to get an update on the will of the people from 2016—which, of course, amounted to only 37% of the people. All the indications are that views have evolved.

The Government have allowed themselves multiple bites at the cherry, as MPs have, but will not allow the people even one chance to rethink. That is very arrogant. We on these Benches would of course want to add to the amendment of the noble Baroness, Lady Hayter, by ensuring that whatever version of Brexit comes out as the top preference of MPs should then be put back to the people, for them to have the final say on whether they support it or wish to opt to remain.

The noble Lord, Lord Forsyth, who is having some fun today, expressed himself astonished yesterday that,

“the Prime Minister can go to a meeting in Brussels and, suddenly, what is in statute is completely irrelevant”.—[Official Report, 26/3/19; col. 1719.]

It is not quite like that. MPs voted for an extension to Article 50 and, for once, the Prime Minister did what the House of Commons told her to. She requested an extension, which became the European Council decision of 22 March. Since we are therefore still in the EU until at least 12 April, EU law is supreme over domestic law. That is how it works. I felt an intervention coming somehow.

[Lord Forsyth of Drumlean]

The point I was making was that the Prime Minister went to Brussels and made a request, which was refused. She was offered two dates and signed away the effect of the legislation without coming back to Parliament and asking it to express a view. I am sure the noble Baroness agrees that that is an extraordinary constitutional position.

[Baroness Ludford]

I think the noble Lord’s quarrel is with the Prime Minister.

[Lord Forsyth of Drumlean]

Yes.

[Baroness Ludford]

It is that, rather than with anything I have said.

I noted that while on Monday there was an insistence from the government Benches that this decision by the European Council represented international law, at least by yesterday things had moved on somewhat when the noble Baroness the Leader of the House referred to EU and international law. I am, however, puzzled by her insistence that the European Council decision and the UK’s agreement to it constitutes a binding agreement in EU and international law. It seems to me that that decision is simply a binding legal act under EU law, to which the UK is now and at least until 12 April subject. It just seems to be difficult for the Government to straightforwardly acknowledge this, presumably for political reasons.

I am sure that the noble Lord, Lord Pannick, will speak to the issue that he raised yesterday about the legality of the two alternative exit dates and I will leave that to him. From these Benches, we can accept the convenience of needing only one statutory instrument, and not potentially two, to cover both the scenarios envisaged in the European Council decision.

Finally, I want to ask about the position on the European Communities Act. I cannot remember whether I asked this yesterday or the day before. The Explanatory Memorandum to the present regulations says:

‘“Exit day’ is the day by reference to which provisions of the 2018 Act, including the repeal of the European Communities Act 1972 … take effect or come into force”,


but that is not my understanding. The European Union (Withdrawal) Act says that the repeal of the European Communities Act takes effect on exit day. My understanding is that an SI is needed to bring that into force; indeed, the briefing from the Library says:

“This provision of the EUWA”—


namely, the repeal of the European Communities Act—

“has not yet been brought into force”.

So even beyond exit day, unless there is an SI to bring into force the repeal of the ECA, the ECA will continue. Can someone explain how that interacts with these regulations? Even if you change exit day, do you still need an SI to bring in the repeal of the European Communities Act? I look forward to the clarification which I am sure the noble and learned Lord, Lord Keen of Elie, who is looking impatient, will be able to give me.

[Lord Pannick]

My Lords, I support the Motion in the name of the noble Lord, Lord Callanan, and I thank him for addressing the legal question I raised yesterday. I am satisfied that these regulations are valid; the legal issue is whether exit day is specified in the statutory instrument when it refers to two possible dates. I agree that that is so: it is specified, and for this reason. It seems to me that the purpose of the power to amend the date of our exit, as expressly stated in Section 20(4)(a) of the 2018 Act, is to ensure that domestic law on exit day is consistent with our treaty obligations. This SI accurately implements in domestic law the current treaty obligations in the light of the extension of the Article 50 period. Unhappily, that still involves more than one possibility as to the future, and the SI accurately reflects the reality under EU law.

There is a risk that a court might take a different view on the validity of the SI; I would not expect it to do so. I am, however, surprised that Ministers did not adopt the simpler, risk-free option of specifying 12 April as exit day, since they have ample powers further to amend exit day if appropriate. That is especially so when there is a third possibility recognised under the EU decision to which the SI refers. The EU decision says that if the withdrawal agreement is not approved by the House of Commons by this Friday, the Article 50 period is extended until 12 April. It adds:

“In that event, the United Kingdom will indicate a way forward before 12 April 2019 for consideration by the European Council”.


If that occurs, and if agreement is then reached on the way forward, it may involve an exit day different from either 12 April or 22 May: that, of course, would require another SI.

I understand that the noble and learned Lord, the Advocate-General for Scotland, will be replying to this debate for the Government. I have a question for him which builds on the question put at the end of her speech by the noble Baroness, Lady Ludford. As a matter of domestic law, exit day is highly significant under the 2018 Act for various purposes, but one of the central functions of exit day is given accurately in paragraph 6.5 of the Explanatory Memorandum:

“Section 1 of the 2018 Act repeals the European Communities Act 1972 on ‘exit day’, whilst the saving and incorporation of EU law into domestic law (known as “retained EU law”) … take effect on and after ‘exit day’”.


Various provisions of the 2018 Act were brought into force under Section 25 of that Act when it was passed. Those provisions include Section 20, which defines exit day and confers the power exercised in this statutory instrument to amend exit day. Also commenced and brought into force when the 2018 Act was passed were Sections 8 to 11 and other provisions which confer powers on Ministers to make regulations such as those we have been scrutinising in recent weeks. There have also been more recent commencement regulations, such as SI 808/2018, which provide for the bringing into force of other provisions of the 2018 Act.

--- Later in debate ---

[Baroness Ludford]

Does the noble Lord accept that the Prime Minister went to Brussels because the House of Commons, which is accountable to the people, voted for an extension?

[Lord Forsyth of Drumlean]

Indeed, it suggested to, or instructed, my noble friend the Prime Minister to go to Brussels and ask for an extension, but we got two dates and diktat about what we had to do about them. That is a completely different proposition. I do not suppose that we will get another coalition Government but I must say something to the Opposition Front Benches, which may take pleasure in what is happening in the other place. A group of Conservative MPs has, extraordinarily, handed power to Jeremy Corbyn and the Scottish nationalists and worked with the Speaker of the House of Commons, in breach of convention. Today, at the other end of the building, the Executive is the House of Commons. Indeed, such is its enthusiasm for this new state of affairs that it has extended this situation until Monday—and there is nothing to stop it doing so until Tuesday or Wednesday. Moreover, it is reported that that same Speaker—again, against convention—is preventing the Prime Minister bringing her deal before the House of Commons again because it has been considered before, yet the Cooper-Boles amendment gets presented again and again. I rest my case: we find ourselves in an unpleasant place, which has come about because of a conspiracy by remainers.