European Union (Withdrawal Agreement) Bill

Lord Butler of Brockwell Excerpts

Committee: 2nd sitting (Hansard continued) & Committee stage & Committee: 2nd sitting (Hansard continued): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Baroness Wheatcroft (Non-Afl)]

My Lords, I wish to support Amendment 27, and at this stage in proceedings I will be brief. I found it endearing when the noble Lord, Lord Howarth, said that we must place our trust in the Government. I tend more to side with the noble Lord, Lord Wilson of Dinton, on this. The Government have made it very clear that their version of taking back control is to do their best to shut out Parliament as far as possible. We need only to look at the illegal attempt to prorogue Parliament to see that in action. Why, if they were very keen for us to be involved in the trade negotiations, would they go to the trouble of taking out of the Bill the clause that would have given us that involvement? It might be right—as the noble Lord, Lord Hamilton, said—that we should put our faith in the Speaker of the Commons. But, again, why should we do that when we could have the safety of having our own involvement on the face of the Bill?

My second point is quite straightforward. I find it embarrassing when this House is threatened that trying to do its job will result in a potential threat to its survival. We have a very simple role: it is scrutiny—not to thwart the will of the Commons but to ensure that we improve legislation. We can improve this piece of legislation. We should do that, and if we do not have the courage to do that because we are worried about our own survival, we do not deserve to survive.

[Lord Butler of Brockwell (CB)]

My Lords, I am going to make a rather cynical contribution to the debate. The debate has brought out very clearly the difference between accountability and a mandate. I am not in favour of the Government’s hands being tied by Parliament in these negotiations. I agree with the noble Lord, Lord Howarth, that it is for the Government to conduct these negotiations, not for Parliament. We will have the opportunity to comment and to give our views, and we should. We certainly should not be cowed from doing that.

However, I will quote a recent example that I really think establishes this point. The Government unexpectedly, before the election, got an agreement with the European Union that the European Union always said that it would not make. How did they get it? They did it by making a concession on the Irish Sea that they would never have got through Parliament. They made a concession which they had said they would not make—but they found it necessary to do it, and when they had done it, Parliament and the electorate came to the conclusion that it was the right thing to have done. If Parliament had been able to control what the Government were able to do, the Government would not have been able to make that concession.

We might be cynical about that concession—we might think it was the wrong thing to do—but it was the thing that got the agreement and that was necessary to get the agreement. Certainly, the Government will need friends in these negotiations, but they will also need flexibility, and Parliament should not seek to take away that flexibility.

[Lord Mackay of Clashfern (Con)]

I would like to point out two matters. First, in new Clause 13D(2)(b) and (c) in Amendment 28, there is the requirement that a Minister must provide

“a declaration of whether, in the Minister’s opinion, agreements can be concluded and ratified before IP completion day”,

which seems to be in the nature of a prophecy required from the Minister as a matter of compulsion, and

“the policy of Her Majesty’s Government if agreements are not concluded and ratified before IP completion day.”

Once again, that is nothing to do with saying what is happening; it is giving an opinion as to what is to happen next, which as far as I am concerned is the difference between the two.

European Union (Withdrawal Agreement) Bill

Lord Butler of Brockwell Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, it is a relief, at least to someone like me who has spent a career in government, to have an Administration that can now be effective. It must also be a relief to the noble Lord, Lord Callanan, to be introducing a Bill which he can be confident will go through.

What then is the duty of your Lordships’ House? On this Bill, and on the flood of further legislation necessary to implement Brexit and which was held up in the last Parliament, we should not be intimidated from fulfilling our constitutional role of scrutiny and amendment. But we also need to be realistic. We do not have the power to be destructive. It would be impolitic to be obstructive. So let us be constructive.

As has been made clear, the opposition political parties in this House are likely to move amendments that reflect their long-expressed political positions. However, if such amendments pass this House, it is as certain as anything can be that they will be defeated in another place. Therefore, I hope that the House will not spend too much time and credit in beating the air.

The changes in this Bill in comparison with the pre-election departure Bill seem understandable, though not necessarily welcome. It is understandable that the Bill does not contain those concessions the Government unwillingly made in the hope of securing support from at least some members of the Opposition. It is regrettable that the Bill removes the provision championed by the noble Lord, Lord Dubs, but we must acknowledge that it did not strictly belong to a departure Bill, and the assurances given by the Minister today are welcome.

I take an optimistic view of the future. I also understand the Prime Minister’s desire to remove the ability to seek an extension to the implementation period. He is fresh from the experience that the imminence of a deadline caused the EU to do what it had said was impossible: namely, to reopen the departure agreement made with Mrs May. He may well believe that the imminence of a deadline will similarly make the EU do what it currently says it is impossible to do within 12 months: namely, to reach a comprehensive free trade agreement. We have to hope that he is right.

I conclude with one note of regret not directly arising from the Bill. It is reported that, having melted down two previous versions, the Government plan to issue a commemorative coin on 31 January to mark our departure from the EU. That will indeed be an important day in our national history. It is a day that a large proportion of the population—perhaps the majority—will understandably celebrate. But we have to remember that nearly half will not. The issuing of a commemorative coin will commemorate division, not unity, and it will not promote reconciliation or commend us to our neighbours in the EU. It would be welcome if, even at the cost of melting down yet another version, the Government were to think again.

Queen’s Speech

Lord Butler of Brockwell Excerpts

Wednesday 16th October 2019 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, it is a privilege to follow the noble Lord, Lord Judd, whose championing of so many causes over the years I have greatly admired. As I have listened to this excellent debate, I have reflected on how refreshing it is to be debating the UK’s role in the full range of foreign policy and defence issues, not just Brexit. We had an inspiring prospectus of the UK’s opportunities from the Minister, who opened the debate, but more sobering assessments from others, notably the noble Lords, Lord Kerr of Kinlochard and Lord Ricketts. I feel, therefore, that I should apologise to the House for taking my eyes off that horizon and returning to the tripwire of Brexit before our feet.

As I have said previously, I hope that the Government can get a deal with the EU, although I agree with the noble Lord, Lord Hannay, that, for purely practical purposes, an extension to the deadline of 31 October looks inevitable. In that respect, I return to the point made by the noble and learned Lord, Lord Mackay of Clashfern, in yesterday’s debate. He pointed out that Article 50 requires that a withdrawal agreement should be negotiated taking account of a framework for a future relationship but not determining the details of that relationship. It would be presumptuous on my part to endorse the noble and learned Lord’s interpretation of the legal meaning of Article 50 but it seems to me, as it does to him, that the arrangements on the Irish border are part of the future relationship with the European Union. They turn crucially, for example, on the customs arrangement with the EU, which is surely part of the future relationship.

EU officials are quoted in this morning’s newspaper as saying that, if an agreement is reached in the next day or two, the technical details may take until 1 January to finalise. If this is right, it is in the interests of both sides to leave the arrangements for the Irish border and the backstop out of the withdrawal agreement—the very thing the Government have been asking for. The withdrawal agreement could then be signed, perhaps by 31 October, and the technical details of the border settled in accordance with the agreed framework in the implementation period.

Yesterday, the noble Lord, Lord Kerr, was asked by the noble and learned Lord, Lord Mackay, and myself whether this was a correct interpretation of Article 50. The noble Lord did not agree with us. He said that it would not be wise to finalise the withdrawal agreement with technical details of this sort remaining to be settled, and that it would not be likely that either side would want to do so. I am glad to see the noble Lord in his place; he will correct me if I have misquoted him. However, he, the draftsman of Article 50, did not say that the suggestion of the noble and learned Lord and myself was based on an incorrect interpretation of that article. If a deal is reached with the EU in the next day or two and only the drafting of the technical details threatens to hold up the settling of the withdrawal agreement and our departure from the EU, it seems that it would be worth considering going ahead with the withdrawal agreement without the backdrop and leaving the technical details to be turned into legal form in the implementation period. This is meant to be a helpful suggestion to the Government and it would be helpful if the Minister would give his reaction to it in his winding-up speech.

Now I will say something that I think will disappoint my old boss, the noble Lord, Lord Heseltine. Over the past three and a half years, my position on Brexit has evolved. I continue to think that membership of the EU is overwhelmingly in the UK’s and the EU’s interest. Immediately after the referendum, I argued that, when the terms of our departure were known, it was the Government’s duty to give the people a further vote on them. Depending on the result of a future election, or even of the legislation to implement an agreement, a further referendum has again become a possibility.

However, I regret to say that it is now too late for that. That train has left the station. Even if a further referendum resulted in a majority for remaining, it would not reunite our country. Those who believe in Brexit would not give up. We would be an internally divided and truculent partner in the EU, and that would not be in the EU’s interests or ours. I have felt for some time that our, and the EU’s, best interests lie in our leaving the EU with an agreement and turning our efforts to the new relationship. I supported Mrs May’s deal.

Like the majority of this House, I voted for an amendment to the EU Trade Bill seeking a customs union with the EU. Of course, that would remove the difficulty over the Irish border at a stroke. From the outset of these negotiations, it has been clear that we could not go our own way in making trade deals with third countries without having border controls with the EU. That means border controls between Northern Ireland and the Irish Republic, which would be contrary to our obligations under the Belfast agreement. That might be inconvenient but it is true. Our Government have repeatedly refused to face up to that point; they have not dared to take the Trade Bill back to the Commons for fear that the Commons would endorse the amendment passed in this House. If we are to get Brexit done while honouring the Belfast agreement, we have to make some compromises. That is what the Government are having to face up to at this very moment. If they compromise too far, they risk losing the support of their Members in the House of Commons. If they do not compromise enough, they will not get the agreement of the Irish Government or the EU. There is indeed a narrow path to tread.

To those who argue that remaining in the single market and a customs union with the EU is Brexit in name only, I say that it is much more than that. We would free ourselves from the federal ambitions of the EU. We would revert to the sort of trading relationship we entered into in 1972 but with the advantage of the many collaborative agreements that we have reached with our European partners since that time. We have enough economic power and other strengths to have an influential and mutually beneficial future relationship with the EU.

Over the past three and a half years, I have compromised in my views. If an agreement comes before the House of Commons on Saturday, I hope that others will do the same. It is overwhelmingly in our national interest and the interests of our children and grandchildren that we should do so.

Brexit

Lord Butler of Brockwell Excerpts

Wednesday 2nd October 2019 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, since we last debated Brexit, much has changed and yet, in many ways, nothing has changed. In some respects, we have gone backwards. We are looking for a new departure arrangement having renounced Theresa May’s agreement, which many of us, however reluctantly, were finally willing to support—including the present Prime Minister. Yet in the gloom, I believe there are some hopeful signs, to which I will return.

Let me first say in parenthesis that I saw nothing surprising or constitutionally revolutionary in last week’s ruling of the Supreme Court. Since the noble Lord, Lord Pannick, was sitting beside me, let me say that in view of the large television audiences for the proceedings of the court and following the ending of the televising of the Ashes contest, my noble friend has a claim to have become the Ben Stokes of the legal profession.

My career was spent in an era when judicial review became established as a means of challenging unreasonable exercises of power by the Executive. Although Prorogation took place geographically in Parliament, it was an act of the Executive: Parliament did not have a chance to vote on it. For me, the crucial sentence in the judgement was:

“It is impossible for us to conclude … that there was any reason—let alone a good reason—to advise Her Majesty to prorogue Parliament for five weeks”.


A five-week Prorogation of Parliament at a crucial time when, as we will see next week, only a few days are needed to prepare for a Queen’s Speech, was an unreasonable exercise of the prerogative by the Executive. That is what the ruling was about; it was not about Brexit.

[Lord Forsyth of Drumlean (Con)]

I have huge respect for the noble Lord and I value his advice. He is arguing that the process of Prorogation did not constitute proceedings in Parliament. Does he think the same is true of giving Royal Assent to Acts of Parliament?

[Lord Butler of Brockwell]

That is a legal issue on which I do not want to reply immediately. I think that is a proceeding in Parliament, but this was an act of the Executive, which happened to take place in Parliament.

The result of the Supreme Court’s judgment is that this House is sitting today and we have an opportunity to make our contribution to the debate, so I welcome this occasion. I hope that the Government get a deal with the EU; and there are some hopeful signs, although perhaps not as many as the Prime Minister claims. The DUP now seems prepared to support a deal on the broad lines the Prime Minister is outlining. The Irish Government, although by no means convinced by the details so far reported about the Prime Minister’s approach, appear to have realised that no deal would be a severe economic blow to them. The European Union wants a deal and is prepared to accept a greater role for the Northern Ireland Executive regarding the arrangements affecting Northern Ireland. As the noble Lord, Lord Howell, pointed out to us in our previous debate, constructive suggestions about alternative arrangements for border controls have been made by the commission established by Prosperity UK.

Yet the prospects of reaching an agreement on all the necessary details by 31 October, let alone 17 October, are so remote as to be impracticable. So what sort of agreement do the Government envisage by that date? I understand that the Minister will not be able to tell us any more tonight, beyond what is in the Prime Minister’s so-called final offer to the EU and the documents that have been placed in the Printed Paper Office. But realistically, we must accept that it seems impossible that an agreement will be reached on 17 October, except perhaps on ways of temporarily mitigating the effects of no deal.

In that case, a request for a postponement under the European Union (Withdrawal) (No. 2) Act seems inevitable. People understandably ask, “What would be the purpose of an extension?”. The Minister described it as “pointless”; I was surprised by that adjective because one benefit would be the general election which the Government have been seeking. It would, presumably, take place in late November or early December and might produce a Government able to hammer out a policy which would command a majority in Parliament, and with whom the EU would have to negotiate seriously. If that were the outcome, it would be a price worth paying for a further extension. It would at least be preferable to the present paralysis and, in my view, greatly preferable to leaving on 31 October without a deal.

--- Later in debate ---

[Lord Callanan]

We will obey the law, as I have said on a number of occasions. The Benn Act is the law; we will obey the law.

[Lord Butler of Brockwell]

I just ask a simple question. In those circumstances, will the Government write a letter seeking an extension?

[Lord Callanan]

The Government will obey the law.

European Union (Withdrawal) (No. 6) Bill

Lord Butler of Brockwell Excerpts

2nd reading (Hansard): House of Lords
Thursday 5th September 2019 Lords Chamber

[Lord Howard of Lympne]

I shall not give way on this any more. I want to move on to consider the Bill before your Lordships’ House today, on which we ought to focus our attention.

The noble Lord, Lord Hennessy, whom we all admire and for whom we have so much affection, has recently propounded a novel theory of government and has given it a name—he calls it the government of good chaps. He is in a better position to explain his theory than I am but, as I understand it, one of the elements is that the constituent parts of government and our unwritten constitution should behave within their respective roles as understood by convention and tradition under those unwritten rules. I contend that the legislation before the House is a fundamental breach of the good chap theory of government.

I shall endeavour to explain why I have reached that conclusion. Our unwritten constitution is based on the separation of powers—in particular, between the Executive and the legislature. It is the role of the Executive to govern; it is the role of the legislature to hold the Executive to account—to hold to account but not itself to govern. This Bill represents an attempt by the legislature to assume the mantle of government. That is why it is wrong and illegitimate, constitutes a fundamental breach of the good chap theory of government and is in breach of the conventions of our unwritten constitution. These observations would apply regardless of the underlying reason which gives rise to the Bill; and the fact that the underlying reason underpinning the Bill relates to Brexit makes it even worse.

[Lord Butler of Brockwell (CB)]

If the only role of Parliament is to hold the Government to account, how does the noble Lord explain the fact that we pass laws which bind the Government? We often amend Bills that the Government introduce in a way that they do not want. We do more than hold the Government to account; we set the way in which the law of this country and the Government act.

[Lord Howard of Lympne]

Parliament passes laws initiated by government, and when Parliament passes, and indeed amends, those laws, it does not enter into the detailed prescription of government contained in this Bill. That is why this Bill and its predecessor, introduced earlier this year, represent so fundamental a breach of precedent. They were facilitated only by the fact that the Speaker in the other place decided to dispense with precedent and, as far as we are aware, to dispense with the advice he was given and to allow the Opposition to take charge of the business of the House.

I want to take the House back to the Second Reading of the referendum Bill in the other place—the Bill that provided for the referendum. That debate was introduced by the then Foreign Secretary, one Philip Hammond. He said that,

“whether we favour Britain being in or out, we surely should all be able to agree on the simple principle that the decision about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber”.

I repeat,

“or parliamentarians in this Chamber”.

He said that the decision should be,

“for the common sense of the British people”,

and that this Bill,

“delivers the simple in/out referendum that we promised”.—[Official Report, Commons, 9/6/15; col. 1056.]

The Bill which provided for that referendum was of course passed by a very large majority, but the difficulty that we have faced ever since is that the British people delivered a result that Parliament neither expected nor wanted. I am happy to give way to the noble Lord.

European Union (Withdrawal) (No. 5) Bill

Lord Butler of Brockwell Excerpts

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

[Lord Hope of Craighead]

My Lords, I should like to add one point to what the noble Baroness has just said. Clause 2 is not concerned with the end of this week. The way it is worded, it will apply whenever the issue arises, and that is a matter of considerable concern. We might be moving forward to May. There will be ample time with ample warning, and yet the thing goes through under the negative procedure and is subject to the risk to which our attention has been drawn—of someone objecting—and in due course the date that was in the negative instrument would be declared invalid. That is a big risk to take and we should not be distracted from the fact that the end of this week has certain tensions about it because we are changing the law for all time. That is a very serious step to take.

[Lord Butler of Brockwell (CB)]

My Lords, I hope that this is an unnecessary fear, but it ought to be clarified. My worry, which I am sorry to say has been intensified by what happened on Thursday, is that if an affirmative resolution is needed on Friday or Saturday, is there a risk that it could be filibustered and therefore not passed? We would then crash out because of that obstruction to the business of the House. As I say, that worries me very much, so for that reason I support the inclusion of Clause 2.

[Lord Forsyth of Drumlean]

My Lords, I know nothing of these matters but perhaps the noble Lord could explain how you can filibuster a statutory instrument?

[Lord Butler of Brockwell]

I imagine that you can filibuster it by continuously talking and thus prolonging the debate until past midnight on 12 April. That is what I fear.

[Lord Forsyth of Drumlean]

As the noble Lord will have discovered, we have a procedure which last Thursday was used on five occasions in order to bring the matter to a close.

--- Later in debate ---

[Lord Howard of Lympne]

I wonder if the noble Lord might add this to the conditions in which this Bill would have been unnecessary: if Parliament had been prepared to respect the result of the referendum.

[Lord Butler of Brockwell]

My Lords, I understand the misgivings that many in this House have about this Bill, but I have to say to the noble Baroness that her amendment would not stop the Bill becoming an Act. It is going to become an Act, and that is the mischief, so she cannot stop through her amendment the mischief that she wishes to stop. As the noble Lord, Lord Pannick, said, the Bill ceases to have an effect, so she need not worry about that either.

There is another reason why we should not pass this amendment: with the amendments we have passed so far, supported by the Government, they will be supported in the House of Commons, and so we will not have ping-pong. If we were to pass the noble Baroness’s amendment and the Government resisted it in the House of Commons, the Bill would have to come back here and there would be further delay. Therefore, I urge her not to press her amendment, because it is unnecessary and it will cause unnecessary prolongation of the procedures.

[Lord Forsyth of Drumlean]

Before the noble Lord sits down, why does he think the Government would resist this?

Brexit

Lord Butler of Brockwell Excerpts

Monday 25th March 2019 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I agree with everything the noble Baroness, Lady Altmann, has said.

While I sympathise with the Prime Minister, like others I was angry at her broadcast from Downing Street on Thursday evening. From the outset she has faced Parliament with a choice between two irreconcilable courses: freedom to make our own trade deals and set our own tariffs on the one hand, and the absence of border controls between Northern Ireland and the Irish Republic on the other. At the end of his speech, the noble Lord, Lord Lilley, dismissed this problem by saying it would have to be solved and would be. But it has not been solved; hence the need for the backstop, which has been the principal obstacle in the way of the House of Commons agreeing the departure agreement.

Your Lordships’ House has now offered the other place a way of resolving that dilemma through our amendment to the Trade Bill calling for a customs union in a free trade agreement with the European Union. I will not rehearse here the advantages of that course, but I hope that there may be an indicative vote pointing in that direction in the House of Commons this week. In any case, it is a matter for the negotiations on our future relationship. The issue for today is how we escape from the impasse the country is in.

The European Union has now given us a clear choice. One option is for the other place to accept the departure deal, and we are told it must be agreed this week. In that case, the way ahead is straightforward. We have until 22 May to pass the necessary legislation to bring the deal into force. But the Prime Minister has said that she is not in a position to put the deal to the other place this week with any hope of success. She clearly hopes that that position might change, but given the shortage of time ahead of us that prospect must be remote. The alternative, if we are not to leave without a deal on 12 April, is to ask for more time. We could revoke Article 50. That is in our power. However, like the noble Baroness, Lady Smith of Newnham, I think that unlikely and also wrong in the absence of a further decision by the people.

If the departure agreement is not passed and the UK is granted more time, possibly at the cost of running candidates in the EU parliamentary elections, what would that extra time be for? The EU has ruled out renegotiation of the legal aspects of the departure agreement, and I believe it. It is willing to change the political declaration but will not get down to negotiating the new relationship until the departure agreement is in force. A further delay could not be used for renegotiating the legal aspects of the departure agreement or for starting the negotiations on the new relationship. It could be used for more attempts to win Parliament round to the departure deal, but if that is to be achieved it would be better to do it now than to prolong the uncertainty.

Another purpose for a longer delay would be a further referendum. I have argued the case many times in this House that democracy, properly understood, would give the people the final say on the terms of our departure from the European Union. I do not resile from those arguments today, when that outcome may just possibly be coming into sight.

I have come to think, like others, that the least worst course is for the House of Commons to pass the Prime Minister’s deal this week, for Parliament to pass the necessary legislation by 22 May and for the Government to turn their attention to negotiating the future relationship with the EU under a leadership with fewer red lines than the present one. So, to my surprise, I found myself in a position similar to that of the noble Lords, Lord Lilley and Lord Howard of Lympne—although I reached that conclusion by a very different route.

However, if that is not to be achieved and a longer period is to be obtained, I agree that it should be used for the purposes so eloquently described by my noble friend Lord Kerr, the noble Viscount, Lord Hailsham, and the noble Lord, Lord Bridges. We should recognise, however, that the outcome of further discussions between the parties can be validated only by a further vote of the people—and it must be clear that if that is the course on which we are to embark, that will be the outcome.

--- Later in debate ---

[Lord Butler of Brockwell]

If the noble Lord’s club analogy is correct, why do we have to pass a statutory instrument at all?

[Lord Goldsmith]

It is to change the club’s rules. In this case, Parliament is the club. I was just trying to explain how I see the situation. I see the noble and learned Lord, Lord Mackay, rising to his feet and gladly give way to him.

EU Withdrawal

Lord Butler of Brockwell Excerpts

Wednesday 13th February 2019 Lords Chamber

[Lord Howell of Guildford]

The explanation would take longer than the time I have available. I shall share it with the noble Lord afterwards but the basic point is that services are the expanding side of international trade. Standards have to be negotiated with America, the European Union and so on, and within the EU of course, but also with all the great new markets of Asia, Africa and Latin America, where the big expansion of services will be. There never was a clear single market in services. We hoped for it but it never worked. We face the same problem there as we are facing throughout the world. It is perfectly straightforward that in this area old-fashioned customs arrangements affect only solid physical goods; they are a declining part of the system. Therefore, concern with old-fashioned arrangements is becoming less relevant.

[Lord Butler of Brockwell (CB)]

I follow a great deal of what the noble Lord said but physical goods still have to cross the border, and I am not sure what solution he has for that on the Irish border.

Brexit: Parliamentary Approval of the Outcome of Negotiations with the European Union

Lord Butler of Brockwell Excerpts

Monday 28th January 2019 Lords Chamber

[Lord Newby]

I am sure that the noble Lord has learned many lessons from the Liberal Democrats: principally about the cost of every aspect of our leaving the EU, which my colleagues, 30 of whom spoke during debates on the withdrawal Bill, enunciated so clearly.

As I was saying, I hope that we will pass this Motion tonight to signal to the Commons the clear view of your Lordships’ House that, were MPs to decide to pass the Cooper Bill or any other legislation relating to the Brexit timetable or process, your Lordships’ House would deal with it in a timely manner.

The Cooper Bill is a recognition of what everybody knows: namely, that there is no way that the UK will be in a position to leave the EU in a mere eight weeks’ time with the full panoply of post-Brexit legislation in place. The inability or unwillingness of the Government to say how many Brexit-related SIs have been passed into law is testament to this. So is the withdrawal, because of its flaws and errors, of the mammoth SI which the noble Lord, Lord Cunningham, recently drew to the attention of the House. So is the fact that, with the exception of the Trade Bill, the various other major Bills which we will need to pass—on agriculture, fisheries and immigration—have not yet had even their Second Readings in your Lordships’ House.

In a BBC interview on Friday, the Leader of the Commons implicitly recognised this when she said, in respect of the need to get all the legislation through, that,

“if we needed a couple of extra weeks or something then that would be feasible”.

So an extension is on its way, one way or another. The only thing that is unclear is the basis on which such an extension will be sought. I suspect that if the Prime Minister simply asked for more time to try to come up with something which would unify the Conservative Party, she would be met with a firm rebuff by the EU. Even in the unlikely event that she was able to discover an alternative to the Irish backstop that satisfied the EU and her own party, the Government would need more time simply to get the necessary legislation through.

The other justification for more time would be to allow the people to express their view, with an option to remain in the EU. Your Lordships know that that is what we on these Benches support. I can only reiterate that there is now widespread support for a people’s vote across the country and a growing majority who say that, in such a vote, they would vote to stay in the EU. In arguing against such a vote and in answer to a Question last Thursday from the noble Lord, Lord Pearson of Rannoch, the noble Lord, Lord Callanan, said that in the 2016 referendum a majority of the electorate voted to leave the EU. That is of course not the case: 37% of the electorate voted to leave. I hope that in his winding-up speech the noble Lord will take the opportunity to correct that error.

There is no doubt that the country is now heartily fed up with endless Brexit arguments. There is a growing, and accurate, sense that while we wrangle over this issue, virtually every other area of public policy is being unaddressed. This week Parliament has the chance to narrow down the options and make some progress. Our role in your Lordships’ House is secondary, but we still have an obligation to ourselves and the country to play it to the full. I therefore urge noble Lords to support the Motion in the name of the noble Baroness, Lady Smith.

[Lord Butler of Brockwell (CB)]

My Lords, the noble Lord advanced a number of hypotheses that may or may not happen. As general principles, though, would it not be astonishing if the Government could not accept these two parts of the Opposition’s Motion? We know that it is the Government’s policy to try to avoid no deal: surely they must feel an obligation to give adequate time to this House to pass any consequent legislation.

--- Later in debate ---

[Lord Butler of Brockwell]

My Lords, in the light of what the Minister has said, can he tell us which part of the opposition amendment he opposes? We know, as he said, that it is the Prime Minister’s determination to “take all appropriate steps” to get an agreement—so that is the first part of the amendment. The second part is to provide,

“for this House to ensure the timely passage of legislation necessary to implement any deal or proposition”.

He just said that that is what the Government also want. On what grounds could he oppose the Opposition’s amendment?

[Lord Callanan]

Because the noble Baroness is asking us to take no deal off the table, and we do not think that that is possible because it is the legal default—as I have said many times in this House—because of the notification of withdrawal Act, because of the Article 50 process and because of the withdrawal Act passed in the summer.

My noble friend Lord Balfe asked me how much discussion there has been between Her Majesty’s Government and the incoming Finnish presidency. We are engaging with the Finns through our embassy in Helsinki. This engagement will increase, including potential secondees, as their preparation for the presidency develops.

As I conclude, I think it would be helpful to recap the way forward for this House and the other place. The rejection of the deal two weeks ago was obviously a disappointing moment for this Government. We are mindful that we cannot legally ratify the withdrawal agreement until a deal has been approved, and therefore the defeat precipitated some serious reflection on the concerns expressed by both MPs and Members of this House.

The best way forward, I repeat, is to leave in an orderly way with a good deal. It is not our strategy to run down the clock to 29 March. As the Leader of the House set out in her opening speech, the Prime Minister has highlighted a number of areas in which we intend to address concerns going forward. I have expanded on some of those this evening, including responding to concerns on the backstop, engaging with Parliament as we head to the second phase of negotiations, and demonstrating our commitment to social and environmental protections. It is these proposals, along with amendments to the Government’s Motion, that the other place will consider tomorrow. As the Prime Minister has said, we should all be prepared to work together to find a way forward, given the importance of this issue.

I know that many noble Lords will be following the debate there as keenly as we in government are listening to what is said in this place—and noble Lords’ words will be heard in the other place. We believe that the way forward that we have set out is the only way to seek to address the concerns of Members in both Houses at the same time as respecting the 17.4 million people across the UK who voted in favour of leaving the European Union.

Brexit: Preparedness for EU Exit

Lord Butler of Brockwell Excerpts

Thursday 25th October 2018 Lords Chamber

[Lord Callanan]

My noble friend makes a very good point. We know that the French National Assembly and the French Government are putting in place preparations for no deal, as are many European countries. That is the responsible thing to do, and I am really not sure why the Opposition think it is such a bad thing to put in place sensible contingency plans.

[Lord Butler of Brockwell (CB)]

My Lords, the NAO report states that the border systems cannot be ready in time for a no deal. Is the Minister saying that the NAO report is wrong?

[Lord Callanan]

We are putting in place the responses necessary in case of no deal. We have decided to prioritise safety and security, the flow of people and goods and then compliance activity, including the collection of revenue in the short term. Contingency plans are being prepared with the aim of managing all the potential issues, such as queues of traffic in Kent and continuing supplies of essential goods and medicines.