European Union (Withdrawal Agreement) Bill

Lord Forsyth of Drumlean Excerpts

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

[Baroness Hayter of Kentish Town (Lab)]

My Lords, today will be a bit like a wedding, where brides are encouraged to wear something old and something new for luck. Today we have the return of that old double act, the noble Lord, Lord Callanan, and the noble and learned Lord, Lord Keen, so no change there, but appropriately perhaps, with brides in mind, we have two maiden speeches. The first is from someone I have known and worked alongside for 30 or even 40 years: the former MP and my noble friend Lord Mann, whose work on tackling anti-Semitism has rightly brought him to this House. The other is from the new noble Lord, Lord Barwell. I have great hopes of him, given how well he responded as Housing Minister to my pleas and those of this House to make client-money protection compulsory for letting agents. He heard the arguments, made a decision and made it happen. If only the current Government were as good.

Before us we have a very poor Bill, and one that is being rushed through Parliament. The rush is perhaps understandable, as 31 Jan is fast approaching, but it is not being just rushed but rammed through. The Government are determined to allow no change whatever, even if deficiencies are identified. This is both stupid, as corrections will have to be made later, and arrogant, with scant regard to our normal, democratic method of law-making.

[Lord Forsyth of Drumlean (Con)]

That is a bit uncharitable. How can the noble Baroness say that this is being rushed through when the House of Commons did not take the time allocated to discuss it?

[Baroness Hayter of Kentish Town]

I was saying that it is being rammed through, because no changes will be contemplated. That was the distinction I was trying— obviously unsuccessfully—to make. The issue is that our normal democratic method of law-making is for this Chamber to give serious consideration, and then for any amendments to be seriously debated in the other place to assess their worth and, where necessary, adapt accordingly.

Stephen Barclay, in the other place, warned and threatened us not to defy the will of the country. That reflects a complete—I hope not deliberate—misunderstanding of our role in a bicameral democracy. But it is not just Lords whom Ministers want to ignore. We have heard via the Speaker some serious concerns from the Welsh Government, which are not addressed by what the Minister has just said. Their concerns may lead to the likelihood—for the first time ever and risking the devolution settlement that has worked so well—of the Welsh Assembly denying legislative consent to a Bill; and still Ministers will not listen. A party with “Unionist” in its name should think twice before undermining a shared approach to making the devolution settlement work.

The Bill is also a bit strange. Clause 38 specifically recognises that the Parliament of the UK is sovereign, but the rest of the Bill proceeds to strip powers away from Parliament. It repeals the Benn/Cooper requirements to report to Parliament, disapplies CRaG, abolishes the meaningful vote for the withdrawal and final deals, and deprives Parliament of its say as to whether the implementation period should be extended, despite, as recently as October, Robert Buckland promising the other place that it would

“have its say on the merits of an extension of the implementation period”—[Official Report, Commons, 22/10/19; col. 915]

The Minister might say, “Ah, but that is what Clause 33 of the Bill—agreed by the Commons last week—does”. But the decision for no extension has been taken before we have even left, before we have seen any negotiating mandate either from the EU or from our own Government and before we know how such negotiations are progressing or what obstacles, from Northern Ireland or elsewhere, may stand in the way of a satisfactory agreement.

I have to tell the Minister that we are not going to try to save the Government from having a red face in the summer by giving them wriggle room now, but the chance of a deal, the implementation legislation and all the infrastructure being in place by December is frankly for the birds. I have waiting here my “I told you so” speaking notes, ready for when, in six months’ time, the Minister has to be here saying, “Oops. Can we change what we’ve just agreed?” We will leave that for him to do.

Our worries about the Bill stem from the Government’s own slogan, repeated just now, “Get Brexit done”. The electorate quite rightly judged that to mean “Come out by 31 January”. It did not mean “and do so by government diktat rather than by parliamentary process”, but that is what the Bill allows. There is no say over the implementation of our withdrawal, the objectives for the future relationship or the progress of those talks.

The Government say the Bill will

“ensure Ministerial oversight of the Joint Committee”

that deals with the withdrawal, but it will not ensure parliamentary oversight of what our EU Committee calls a

“uniquely powerful and influential body”

with

“significant responsibilities in relation to the Protocol on Ireland/Northern Ireland”

and with the power to amend the withdrawal agreement, a power immune from

“clear scrutiny procedures or parliamentary oversight”.

So, without UK MEPs, there will be no British parliamentarians able to scrutinise the decisions of government, whether over how we come out or, crucially, over the negotiations for our future relationship, because the Bill removes what was there before: our role on the mandate for and progress of negotiations on our trading, diplomatic, cultural, consumer, environmental and security relations with the EU. The Government have stripped out undertakings that Parliament would have an input into and oversight of these talks. Instead we will be left with a few “take note” debates and responses to Ministerial Statements. That is not proper scrutiny—

--- Later in debate ---

[Lord Forsyth of Drumlean]

My Lords, we have just listened to a powerful speech and I congratulate the noble Lord on it. From its timbre, it was a speech drawn from passion, conviction and integrity. Although, even in his own party, people have not always agreed with him, the noble Lord has the courage to say what he thinks. Often his party would have done well to take on board what he thought and said, not only in regard to his work in campaigning against the scourge of anti-Semitism, but also his warning that if his party ignored the wishes of the people on Brexit it would find that the people would take a terrible revenge—and indeed they did. He warned his party that if it went into an election with Jeremy Corbyn as leader there would be a catastrophic result. I have to tell him that I am grateful that his party ignored that advice for it has given the Prime Minister an enormous mandate to carry through what the people of this country voted for. I am delighted to see him in this House, which he described as a curious place, because he is on record as saying that it is a care home for failed politicians. His very presence here shows he was wrong about that.

As I walked across Victoria Gardens last week, the sun was shining, the birds were singing, and when I got to the Peers’ Entrance, there was the sound of silence. There were no mercenaries shouting “Stop Brexit”. It was extraordinary. When I came into the building and looked at the Order Paper, there were no Questions spreading project fear from the Liberals—the questions were on matters that should concern us, such as health, education and other matters—and I began to think that we had crossed the Rubicon. I have to say, however, that, listening to the speech from the noble Baroness, Lady Hayter, although the first part was good, and the speech from the noble Lord, Lord Newby, I am not sure that this House has entirely got the message. The other thing, which I commend to noble Lords, that cheered me up on Thursday was the speech by my noble friend Lord Bates. It was a brilliant speech, which set out what a great country this is and how we have a great future ahead of us if we will pull together and work together. I hope that message was taken on board by this House.

I found it extraordinary that the other place dealt with all the amendments on all the subjects that will be covered in the speeches today—and have already been covered—in less time than had been provided under the guillotine. Is that not remarkable? Only one month ago, we were told that there was not enough time to discuss any of this stuff. What was there reason? It is because the House of Commons has got the message from the voters. This place needs to do the same, for I fear it has strayed from its path like lost sheep—a reference that might make some impact on the right reverend Prelate the Bishop of Leeds. He said this is about democracy. I have to say that there is no democracy in this Chamber. We are all appointed to this Chamber. Democracy lies in the other place. The voters have given a very strong message, and the other place has voted with huge majorities against all the amendments laid and in favour of the Bill.

The Bill is about delivering the mandate given to the Prime Minister by the British people. I do not believe that there is a single soul in this Chamber who believed that he would have such a dramatically positive result. If this House chooses to challenge that—I totally agree with what my noble friend Lord Cormack said, although he and I have not been as one on Brexit —by all means use the time and try to persuade my very reasonable noble friend the Minister to take on board the arguments, but please do not send an amendment back to the other place. It will make this Chamber look ridiculous and it will play into the hands of those people who wish to destroy it, many of them now putting themselves forward to be leader of the Labour Party.

The truth is that we lost our way. We ripped up our Standing Orders. The Opposition took control of the agenda. We moved more closure Motions in one Session than had ever been moved before, and we did so because this House became a campaigning House instead of a revising House. It is time we returned to our proper role and acted as we should, with respect, on issues of health, education, the economy, social care, gambling and a whole range of things. Then we might earn the respect of the British people again.

Brexit: Preparations

Lord Forsyth of Drumlean Excerpts

Tuesday 8th October 2019 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, I congratulate the civil servants and officials responsible for this document. Listening to the speeches from the Opposition Front Benches, it is perfectly obvious that they have not read it. It is very helpful indeed. The only criticism I make of the Government is that they did not give us very long to read it, but I have read it. On page 46, for example, it makes it absolutely clear that pet owners will still be able to travel to Europe with their pets after Brexit. They may need to take additional steps to prepare but it explains what these are. The opposition parties are scaremongering and making the same speeches. They have demanded to know what would happen if we left, but when a document is produced all we get are the same tired old arguments that we have heard over and again. I congratulate my noble friend and his officials on the fantastic piece of work that has been done in this document.

[Lord Callanan]

I thank my noble friend for his comments and join him in congratulating all the officials across government who are working on no-deal preparations. We have some excellent civil servants who are putting in a great deal of work to make sure that the country is prepared to honour the democratic decision the British people took to leave the European Union.

Brexit: Parliamentary Processes

Lord Forsyth of Drumlean Excerpts

Thursday 3rd October 2019 Lords Chamber

[Lord Callanan]

The great thing about this proposal is that it has attracted support from across the sector, including, I am delighted to say, from a number of Labour MPs who take quite a constructive approach to wanting to deliver on the referendum result. It looks as though we have a majority assembled for this provision, but we still have a lot of hard negotiating to do. We will endeavour to bring back a proposal that will enjoy widespread support across all communities and all parties.

[Lord Forsyth of Drumlean (Con)]

Does the Minister agree that there is an irony in this Question, which calls on the Prime Minister to comply with the provisions of the European Union (Withdrawal) (No.2) Act? Section 1(4) of that Act says that we should apply for 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)”,

requiring the Prime Minister to give an undertaking that he can pass an agreement which has been consistently rejected by the House of Commons because of Labour going through particular Division Lobbies.

[Lord Callanan]

My noble friend makes a sensible point. It appears to many of us that this Bill was designed to try to undermine the UK’s negotiating position. It was interesting that we had six hours of debate on EU withdrawal yesterday and nobody—either from the Labour Front Bench, where we had two speakers, or the numerous speakers from the Labour Back Bench—but nobody had anything to say on Labour’s position on this, because, of course, its position is ridiculous. Its position is that it wants to go to the European Union, negotiate a new deal, come back and then vote against it. What a shabby Opposition they have become.

Brexit: Divergence from EU Standards

Lord Forsyth of Drumlean Excerpts

Thursday 3rd October 2019 Lords Chamber

[Lord Callanan]

There are already checks, of course, because Ireland is a single epidemiological unit. Therefore, there are already checks in the Irish Sea on live animal exports, et cetera. If these proposals are accepted—we will see how the negotiations go—there will need to be a small increase in the number of checks done.

[Lord Forsyth of Drumlean (Con)]

Does not my noble friend think that, had we been able to make our own regulations in respect of emissions standards, we might have avoided the appalling scandal related to diesel engines and the great distress that it has caused to many of our citizens who have diesel cars?

[Lord Callanan]

My noble friend makes a good point. It is a matter of national self-confidence: we should be able to determine these things for ourselves. I really do not see why that is such a difficult concept for the Opposition to grasp.

Brexit

Lord Forsyth of Drumlean 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.

European Union (Withdrawal) (No. 6) Bill

Lord Forsyth of Drumlean Excerpts

Report stage (Hansard): House of Lords
Friday 6th September 2019 Lords Chamber

Moved by

[Lord Forsyth of Drumlean]

1: Clause 1, page 2, line 14, leave out from “2020” to end of line 20

[Lord Forsyth of Drumlean (Con)]

My Lords, I do not want to detain the House in any way.

[Noble Lords]

Oh!

[Lord Forsyth of Drumlean]

I mean that seriously. However, it may be of assistance to your Lordships if I explain why I have tabled this amendment. It arises from an exchange we had in Committee when my noble and learned friend Lord Mackay of Clashfern queried why the letter the Prime Minister is required to send under the Schedule to this Bill did not include a reason. We had an exchange about how, if you had to have a reason, surely that would be a condition. He said that the reason is in the Bill.

The reason is indeed in the Bill; it is the bit I want to take out—page 2, line 14, from “2020” to the end of line 20. I am not sure how many of your Lordships have studied this and thought about its implications. It is written in language which makes it less easy to understand, but it is essentially saying that the letter has to be sent,

“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 as announced by the Prime Minister on 21 May 2019, and in particular the need for the United Kingdom to secure changes to the political declaration to reflect the outcome of those inter-party talks”.

It means we are asking the Prime Minister to send a letter saying not only that he wants to debate the May deal and the subsequent matters that were agreed between the parties but that he intends to pass a Bill, when he has made it absolutely clear that he is determined not to do that. More particularly, for those Members who have argued about the supremacy of the House of Commons, it is a deal which has been rejected by the House of Commons on three separate occasions.

Here we have a piece of legislation which, by agreement between the Front Benches, is being given safe passage—I certainly do not support the Bill but I do not wish to delay it, if that is what the Government want—but what on earth is going on with the Government? Why have they not tabled an amendment to take this out? It does not reflect their declared policy, nor the view that the House of Commons has taken on three separate occasions.

I therefore went to have a look at the Hansard of the House of Commons to find out how this had got into the Bill. It has done so by accident. The Labour Party’s position in the other place was to abstain on this matter. Its author—showing that some families stick together—was a certain Stephen Kinnock.

[Lord Cormack (Con)]

He is a very good chap.

[Lord Forsyth of Drumlean]

My noble friend Lord Cormack says that he is a very good chap. I know we are a broad church, but—.

Stephen Kinnock is quoted as saying on this matter:

“I understand that our position at the present time would be to abstain, but I am not 100% sure of that”.—[Official Report, Commons, 4/9/19; col. 262.]


My noble and learned friend Lord Mackay corrected me, quite rightly, when in Committee I said that the Government had failed to put in tellers for the Division—although I am confused because in my day, only the Government proposed Business Motions and matters of that kind. However, it was of course the promoters of the Bill who failed to provide tellers for the Division, which is how this has ended up in the Bill.

We therefore have a provision in that Clause of the Bill which the Labour Party did not want—it was going to abstain on it—and the Government cannot possibly have wanted. I am as good as my word—I said that I would not seek to delay the implementation of this legislation, if that is what has been agreed between the parties—but that strikes me as extraordinary. I did not table an amendment in Committee, which in the normal way I would have done, because I expected the Government to put down an amendment to deal with this, and they have not done so. I say to my noble friend that we would be very grateful indeed if he could explain why the Government are leaving in a Bill which they are proposing to support, a provision which requires the Prime Minister to write a letter for the purpose of giving an undertaking to debate and pass a Bill to implement the so-called May compromise agreement, including the discussions that took place between the previous Prime Minister and the Labour Party, which include giving assurances about regulatory requirements and the rest. It seems extraordinary, and that is the reason behind the amendment, which I beg to move.

[Lord Cormack]

My Lords, I very much hope that the House will not be seduced by the silver tongue of my noble friend Lord Mackay of Drumlean.

--- Later in debate ---

[Lord Forsyth of Drumlean]

Oh my goodness. I have to say to the noble Lord, Lord Rooker, for whom I have great admiration, that I am struggling with that response because the words say that a letter should be sent by the Prime Minister requesting an extension in order not just to debate but to debate and pass a Bill. He has to send a letter saying he wants an extension because he is planning to pass a Bill to implement the May agreement, which has been rejected three times—the noble Lord, Lord Rooker, is absolutely right—and put in place the results of the discussions, on which I do not have information, other than what I have read in the newspapers. That is anticipating the decisions by the House of Commons.

My noble friend Lord Cormack said that he supported the May deal and that there are many people who supported the May deal, but the May deal was rejected by the biggest vote ever in the other place. The noble Lord, Lord Brooke, made a very good point about the political agreement and having discussions. He may be right in his criticism that not enough has been done to take that part of the thing forward. Taking out this defective part of the Bill does not prevent discussions taking place.

My noble friend Lord Hamilton made a crucial point that if this provision is deficient—and everybody agrees that it is deficient—what is this House for if not to deal with those matters? The noble Lord, Lord Rooker, said there is a matter of trust. I am most grateful to my noble friend Lord Callanan for his honesty and transparency. We were under the impression that the deal agreed between the Front Benches would result in this matter being taken out—he has confirmed that—and we are now being told that it is not being taken out because the legal advice is that it would not fly anyway, so we put into the Bill something which is legally deficient; that is okay, and that is what this House has come to. We do that because we do not believe that the Government will be as good as their word when the people who were on the other side of the agreement have not been as good as their word. I hope that the Government are rather better than that. We have a duty to pass legislation which is proper. I am not a lawyer, but the noble Lord, Lord Marks, told us that it would have no legal effect whatever, and my noble and learned friend Lord Mackay of Clashfern—not Drumlean —gave us the opposite advice, so it would appear that there is at least some doubt about whether it would have legal effect.

My noble and learned friend Lord Mackay said it was not meaningless and the noble Lord, Lord Marks, said he agreed that—I hope I am not pushing too far here—it should not be there but because it is meaningless, it could stay there. The noble Lord, Lord Jones, told us that the entire country is sick to death of all of us. On that, I am sure we can all agree.

[Lord Goldsmith]

I am going to ask the noble Lord this question because he has questioned the comments that have been made about trust. In that context, does he want to comment on what the Prime Minister said this morning, which was that he will not seek an extension even if it is passed in law? Does that change his view on whether a question of trust is at play here?

--- Later in debate ---

[Lord Forsyth of Drumlean]

No, it does not change my view. What the Prime Minister says he will or will not do has nothing whatever to do with what the law of the land is.

[Noble Lords]

Oh!

[Lord Forsyth of Drumlean]

What he says he will do has nothing whatever to do with the law of the land as decided by both Houses of Parliament. I would expect every single parliamentarian to obey the law of the land. In passing the law, there is a responsibility on us to ensure absolute clarity about what it means and what it does. The noble and learned Lord’s party was not prepared to vote for this matter. It was going to abstain on it, and it was put into the Bill because Tellers were not appointed by the amateurs at the other end who had taken control of the agenda. For this House, and in particular for the noble and learned Lord with his vast experience, to suggest that we should leave it in while making that point makes my argument for me.

[Baroness Ludford (LD)]

In response to the noble and learned Lord, Lord Goldsmith, yesterday the Minister—the noble Lord, Lord Callanan—gave an assurance that the Government would fully comply with this Bill once it became an Act. Not only would it get Royal Assent but the Government would comply with it. However, almost simultaneously the Prime Minister said that he would be dead in a ditch before he would request an extension. Does the noble Lord, Lord Forsyth, think that we should rely on the Minister’s assurance on behalf of the Government while the Prime Minister says something completely different? Does that not undermine trust not only in the Prime Minister but in the assurance that we got from the Minister yesterday?

[Lord Forsyth of Drumlean]

I am so tired of this political argy-bargy.

[Noble Lords]

Oh!

[Lord Forsyth of Drumlean]

If the Prime Minister is dead in a ditch, he is not the Government, and at this stage in considering these proceedings we are talking about ensuring that we have clear and effective law. That is why I tabled this amendment. My noble friend Lord Callanan did not really give me a satisfactory answer, although I appreciated the answer in which he said that the Government had decided that they would not after all take out this measure because they had received advice that it would not have any effect—advice that is contrary to what we have heard from perhaps our most distinguished former Lord Chancellor. Therefore, I am sorry but I do not wish my name to be associated with defective legislation passed by this House and I intend to test the opinion of the House.

European Union (Withdrawal) (No. 6) Bill

Lord Forsyth of Drumlean Excerpts

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

[Lord Forsyth of Drumlean (Con)]

Is not the reality, as we can see from the gilets jaunes and from what is happening in Italy, Greece and Spain, that, as the polls show, many people are thoroughly discontented with the European Union, but, thanks to Gordon Brown, who saved us from the euro, we are able to leave in a way that would be extremely difficult for them?

[Baroness Meyer]

Absolutely.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, we have had a very constructive debate today. It has been much more interesting and wide-ranging than the long hours we had yesterday attempting to prevent today’s debate. I welcome the noble Lord, Lord Forsyth, on his return. I had understood that he was on a sleeper train to Scotland last night—perhaps he was not—but it is very courteous of him.

[Lord Forsyth of Drumlean]

The noble Lord is referring to me and the noble Baroness, Lady Hayter, told me off for intervening because I did not get here in time. I had to go and speak at a social care conference and came back at the first opportunity—which I would have thought was perfectly admissible. While I am on my feet, perhaps I may correct the noble Lord. What we were doing was preventing this House from having a guillotine Motion—it had nothing whatever to do with the Bill.

[Lord Wallace of Saltaire]

It is all the more courteous of the noble Lord to return if he had a speaking engagement in Scotland. I regret that the noble Lords, Lord Dobbs and Lord True, and the noble Baroness, Lady Noakes, have not had the respect for the House to be here today, having detained us for so long in those circumstances last night. I hope that the Conservative Whips will make it clear to them that respect for the House in these circumstances would have suggested that attendance was more appropriate in their circumstances, as far as those of us who cut short our sleep and returned on time are concerned.

We are discussing some fundamental constitutional issues in this Bill: the relationship between Parliament and the Government. It is highly relevant to that that the leave campaign promised us that Brexit would restore not just British but parliamentary sovereignty.

Listening to the noble Lord, Lord Howard, reminded me of some of my undergraduate studies in history—the 17th-century conflicts and the emergence of the Tories and the Whigs, the Tories being those who defended the Crown against Parliament, with the Whigs favouring a stronger Parliament. However, the noble Lord referred not to the divine right of kings but to the will of the people. In some ways, this is an equally difficult concept to pin down and define.

These are very wide-ranging issues. The future of the union has been mentioned. My son now lives and works in Edinburgh and I have therefore visited it much more frequently in the last three years. I understand that the future of the union is at stake in this debate for Scotland and Northern Ireland.

Then there are the questions suggested by the right reverend Prelate the Bishop of Leeds, my noble friend Lord Campbell, the noble Lord, Lord Wilson of Dinton, and others. What sort of country do we want to live in? What sort of values do we think we are about? Do we think that we do not share European values, that we share more with the American right and that that is where we would like to be instead? We have also discussed the conventions of what we used to regard as our wonderful unwritten constitution.

European Union (Withdrawal) (No. 5) Bill

Lord Forsyth of Drumlean Excerpts

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

[Baroness Smith of Newnham (LD)]

My Lords, there may be some flaws in the Bill—hence the support from these Benches for some of the other amendments. However, we agree with the noble Lord, Lord Pannick, that this amendment is unnecessary and that it should be for the other place to set a date.

[Lord Forsyth of Drumlean (Con)]

My Lords, noble Lords are saying that it is for the other place to set a date. My understanding is that it will have one hour to consider our amendments and every aspect of the Bill. It is apparent from the speech made by my noble friend that there is an issue here. As I raised on Thursday, I do not understand why the Bill did not have a money resolution. It is perfectly possible that, in return for agreeing a date, the European Union could demand even more than the £39 billion already offered by the Prime Minister, and that the financial consequences could be considerable. This amendment seeks some kind of time limit on the process, which is sensible.

[Lord Howarth of Newport (Lab)]

My Lords, we should be grateful to the noble Baroness, Lady Neville-Rolfe, for her amendment and for inviting us to consider the issues she identified. Any damage our economy is experiencing at the moment is on account not of the people’s decision in the 2016 referendum but of the highly protracted process and continuing uncertainty that is paralysing economic decision-making, particularly in investment and consumer decisions. The noble Baroness is absolutely right: we need the best objective assessment available as to the damage that the continuation of this uncertainty would cause. The proponents of a long extension of Article 50 must address the question of their responsibility for the continuing economic damage that would result.

--- Later in debate ---

[Lord Goldsmith]

I think it speaks for itself. We have not found ourselves in this sort of situation before. Others in the House can deal with this, if they would like, through the Procedure Committee later.

So far as the amendment itself is concerned—

[Lord Forsyth of Drumlean]

Could the noble Lord help us understand what the word “exceptional” means? On Thursday we had five closure Motions, where the Lord Speaker had to read out a text that says this should be used only in the most exceptional circumstances.

[Lord Goldsmith]

That was the view the House took on each of those closure Motions.

To deal with the substance, we oppose the amendment, essentially for the reason put forward by the noble Lord, Lord Pannick—that we should not send this Bill back with constraints on the other place. What will then happen is for the Prime Minister and the other House to determine, but I urge the noble Baroness not to press her amendment.

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[Baroness Deech]

I would be the mover of Amendment 6. I originally proposed with the Public Bill Office precisely the amendment that the noble and learned Lord, Lord Goldsmith, tabled. I am sorry that we were not able to communicate about it. However, it shows how wise it was for this House to have had the weekend to think about things. Not only has the temperature cooled a bit but it has given us the chance to read two very important reports that were hastily brought out over the weekend. I congratulate the members of the two Select Committees—the Constitution Committee and the Delegated Powers and Regulatory Reform Committee—and all those who worked to achieve this on getting the reports published. They raised an important issue and, to some extent, answered my question. My amendment would have been a probing amendment.

I tabled this amendment for clarification. After we have debated all the amendments, it will demonstrate even further just how toothless and pointless this Bill is. I was minded to put this amendment down for the following reason, which has also been suggested by the noble and learned Lord, Lord Goldsmith. Let us suppose that the Prime Minister picks up the phone to Brussels, or goes there, and it says that it will give an extension for however many months, provided we pay more, or enter into discussions with Spain about Gibraltar, for example. I am glad to see the return of the royal prerogative because I assume that that will mean that she can simply say no and put the receiver down. As drafted, the Bill concerns only the date; it has nothing about conditions. The date may well be inextricably mixed up with conditions.

As things stand, there would be nothing to get either House involved, or to stop the Prime Minister rejecting or accepting such a condition. Moreover, if you look at the drafting—of course, you draft in haste and repent at leisure—Clause 1(2) requires her only to seek an extension, not to achieve or accept it, or anything like that. Going back to my phone call metaphor, if she seeks an extension, and picks up the phone to Monsieur Barnier and says whatever, and he says no or she does not like what he says, she puts the phone down—end of. I maintain that this Bill does not wholly achieve what it sets out to do, which is to stop no deal, but I am happy to see a return of the royal prerogative. I agree with the noble and learned Lord, Lord Goldsmith, that those two final clauses should be removed because they simply confuse the issue.

How wise we were to wait for those reports. The one from the Constitution Committee explains exactly what I have said. Paragraph 5(c) says:

“The European Council might agree to the extension but subject to certain conditions (e.g. UK participation in elections to the European Parliament)”.


I add in brackets that our human rights will be broken if we are still members of the EU and cannot vote—there was a case on this a few years ago. The report continues:

“If such a situation were to arise, the Bill would have no further application—that is, it would not impose any further duties on the Prime Minister nor make any relevant further provision”.


I am glad to hear that. In other words, if Monsieur Barnier says we have to enter into talks with Spain about Gibraltar, the Prime Minister can put down the phone and say no. We will come to the other report later in this discussion.

In sum, no deal is not blocked by this Bill, but the House of Lords is relegated, as has happened quite often, I am afraid, in all our interesting and productive debates about withdrawal. We do not get reported in the media and we are completely sidelined from future decisions by this Bill. If the amendment from the noble and learned Lord, Lord Goldsmith, is accepted, then mine will of course be withdrawn, but I am glad to get this clarification on the record.

[Lord Forsyth of Drumlean]

My Lords, I am rather confused as to what is going on here. Who is answering these important points?

[A noble Lord]

The Minister.

[Lord Forsyth of Drumlean]

No, it is not for the Minister to answer them, as it is not a Government Bill. I do not know whether the noble Lord, Lord Robertson, is going to deal with these points, because we have the Opposition criticising the Bill, and seeking to amend it as we go along in Committee. To my mind—I am blessed with not being a lawyer—the noble and learned Lord, Lord Goldsmith, is riding two horses at once. On the one hand, he is saying that it is important that we retain the royal prerogative, because the Prime Minister has to be able to deal with the situation as it arises, and on the other hand, he says that we need this Bill in order to prevent the Prime Minister doing what she thinks is appropriate. If the noble Lord, Lord Robertson, is the sponsor of this Bill, perhaps he could enlighten us and deal with the important points which the noble Baroness, Lady Deech, has just made.

[Lord Pannick]

My Lords, the noble Baroness, Lady Deech, accepted that Amendments 5 and 7 remove the concern that she otherwise had—that is what she told the House.

I support Amendment 5 in the name of the noble and learned Lord, and I also want to speak to Amendment 7, which has, as I understand it, now been grouped with Amendment 5.

--- Later in debate ---

[Baroness Deech]

My Lords, as I mentioned before, there is nothing in this Bill specifically to stop no deal. It requires the Prime Minister to seek and seek again. The root of the trouble is that for more than a hundred years we have observed the separation of powers in our constitution. The noble Lord, Lord Norton, is one of the greatest experts on this—I think he is not in his place, but if he were he would probably say that that separation is sometimes not exact. However, this Bill is a very good illustration of why it is not a good idea to mix up the powers of the Executive and the legislature. I would like to hear from whoever is the surrogate parent of this odd little embryo quite how it will prevent no deal. An abortion?

[Lord Forsyth of Drumlean]

Will the noble Baroness send a copy of her excellent contribution just now to the Minister for Children, who appeared on Radio 4 on Saturday morning and told an astonished nation that it was now illegal for us to leave without a deal?

[Viscount Hailsham]

My Lords, I will make a brief intervention in the hope that the noble and learned Lord, Lord Goldsmith, will respond to it. I entirely understand that in negotiations—the noble Lord, Lord Pannick, described the situation in which the Prime Minister and the EU are negotiating—there has to be give and take. What disturbs me is this: the Prime Minister might decide in advance to move outside the dates previously agreed by Parliament and go with an entirely fresh date into a negotiation. That is different in kind from negotiating when they sat down to discussion. It would be a deliberate attempt to go outside what Parliament has previously agreed to. It seems to me that Amendment 7 would enable her to do that, and I am profoundly uneasy about that prospect.

--- Later in debate ---

[Lord Lisvane]

My Lords, I speak as a member of the Delegated Powers and Regulatory Reform Committee. The chairman of the committee, the noble Lord, Lord Blencathra, is unable to be here today because he is absent on parliamentary business. No doubt noble Lords have a copy of the 51st report of the Delegated Powers Committee. The argument set out by the committee is brief, concise and telling. I will not attempt to summarise it or indeed to read out the report, because paragraph 5 could hardly be summarised more briefly than it has been set out by the committee.

The committee acknowledges in paragraph 4:

“The principal justification for clause 2 of this Bill is that it might be necessary to legislate at speed next week”—


in other words, this week—

“to change exit day. The affirmative procedure might cause delays, with the risk that exit day in domestic law might not be aligned with exit day agreed under EU law”.

The committee goes on to say that on the other hand, there are powerful and telling arguments in favour of the affirmative procedure. It notes that were Clause 2 to be removed from the Bill, we would simply return to, as it were, the default setting.

Because this will be a matter of business management, the most helpful thing for your Lordships might be to have some indication from the Minister as to whether there is a balance of advantage of using the negative or the affirmative procedure. On that basis, it may be for your Lordships to decide whether Clause 2 remains in the Bill.

[Lord Forsyth of Drumlean]

My Lords, again, I am disadvantaged as being neither a member of the committee or a lawyer. I am surprised that the noble Lord has not drawn the attention of the House to the fact that, as I understand it, the committee report makes it clear that this House would no longer be able to be consulted on those matters. Is that not correct?

[Lord Lisvane]

It is indeed; the noble Lord is correctly quoting from the final bullet point of paragraph 5. I did not want to delay your Lordships further, but that is a helpful, additional piece of information set out in the report.

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[Lord Forsyth of Drumlean]

My Lords, uncharacteristically, I think the noble Lord, Lord Pannick, made a slight slip when he said that the Prime Minister would come back with a deal. She will not be coming back with a deal; she will be coming back with a date. The committee report states:

“The date of the UK’s exit from the EU remains a matter of the greatest political and legal significance. It is right that the matter be debated in Parliament before the current date of 12 April is changed in our domestic law”.


When the Government changed the date from 29 March to 12 April, they did so by statutory instrument placed before both Houses, and we were able to discuss and debate that matter. What is proposed, as the 51st report of the committee makes clear, is to remove that right from both Houses to approve a change.

I must say that in introducing the debate the noble Lord, Lord Lisvane, was very brief in his description. The outside world may not realise what is proposed here, which is entirely to cut the House of Lords out of approving the date, which the report rightly says is of the greatest political significance. Judging from the amount of grief I had at the weekend from people who are very disillusioned by the performance of Parliament on this matter, it is something that concerns many millions of our fellow citizens. I am therefore very surprised that this should be treated as just a matter of convenience.

The Delegated Powers and Regulatory Reform Committee, which is held in the highest regard and afforded the highest respect, made clear recommendations. The point made by the noble and learned Lord, Lord Hope, is important: if this is to be done through a negative resolution, we will be invited after the event to consider whether we agreed with it, thus creating uncertainty. Again, we had the same discussion on Thursday. This is not about what the House thinks on whether we should leave the European Union; it is about whether our procedures and processes should be respected. The idea that it might be inconvenient or difficult to meet the timetable, and that we should therefore ignore our processes, is not good.

[Viscount Hailsham]

Normally, my noble friend and I disagree on these matters but I am rather inclined to agree with him on this one.

[Lord Forsyth of Drumlean]

Hooray.

[Viscount Hailsham]

In the penultimate bullet point, it is clear that if the negative procedure is adopted and a Motion against the date is successful, the exit date will be invalidated and we will have to start again.

[Lord Forsyth of Drumlean]

I am grateful for my noble friend’s intervention. I am most obliged to him as a lawyer for backing up my case—and doing so for free. We should treat the amendment very seriously. I look forward to hearing what my noble friend the Minister has to say. We have not heard a squeak from the noble Lord, Lord Robertson, who is apparently the midwife responsible for the Bill.

[Baroness Ludford]

My Lords, our position is similar to that of the Opposition, as outlined by the noble and learned Lord, Lord Goldsmith. We on these Benches would of course normally want to uphold the affirmative procedure; after all, we fought hard for it in the EU withdrawal Act. However, we are in exceptional times and it would be absurd for us to get to the end of the week with procedure having got in the way of good legal order.

--- Later in debate ---

[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.

[Lord Howard of Rising (Con)]

My Lords, it is worth reminding the Committee that the first steps to dictatorship have, through the centuries, consistently been related to abandoning procedures and precedents which are put in place in order to ensure that legislation is properly considered. I am not saying that we are going as far as the Enabling Act, but this is a very dangerous path.

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[Lord Pannick]

My Lords, this amendment is not needed to ensure that the provisions in the Bill are temporary. They are temporary in any event because the Bill is concerned with only the period for negotiations for withdrawing. Once we withdraw, the Bill has no effect whatever.

[Lord Forsyth of Drumlean]

My Lords, if that is the case, there is no reason at all why we should not accept this amendment. The Prime Minister sent her letter asking for an extension on Friday, so I have spent most of the weekend trying to work out what the point of this Bill was in the first place. Given that we have amended it in respect of the prerogative powers, it is just a very bad piece of legislation. My noble friend Lady Noakes is offering the House the opportunity to get rid of a very embarrassing relative. The Bill and its genesis are not something of which this House or the other place can be particularly proud. It is a very bad Bill, conceived for all the wrong reasons. It has ridden roughshod over our procedures. Having a sunset clause, which is what this amendment offers, would be a very good thing indeed. I very much support my noble friend.

--- Later in debate ---

[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?

[Lord Goldsmith]

My Lords, the noble Lord, Lord Pannick, is right, though I understand where the noble Baroness, Lady Noakes, is coming from. The point has been made about the Bill itself, but this does not take the Bill away—it will have served its purpose, or not, and therefore we could not support this amendment. I imagine the Government would not either, but I wait to hear.

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

Lord Forsyth of Drumlean Excerpts

Wednesday 27th March 2019 Lords Chamber

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

My Lords, first, I express my gratitude to the House for agreeing to suspend Standing Order 72 so that we can debate this statutory instrument today. I am also thankful to the Secondary Legislation Scrutiny Committee for its report, produced yesterday. In addition, I express special thanks to the other excellent committee, the JCSI, which met only this afternoon but has very helpfully released its view on the instrument and has not found any reason to draw it to the special attention of the House.

There was an important discussion yesterday about why the Government had asked the House to agree to take the debate without having a guaranteed report from the JCSI. Taking that decision was, in my view, the right thing to do and we should all be grateful to the JCSI for being prepared to do its work so quickly and thoroughly. I am sure that that has been of great assistance to the House.

[Lord Forsyth of Drumlean (Con)]

I am most grateful to my noble friend but, given that this has happened, surely it was not necessary to suspend our Standing Order.

[Lord Callanan]

Maybe not, but we did not know when the committee would be considering the report. It made special arrangements to sit—but I take my noble friend’s point.

Although the Motion approved by the other place on 14 March to seek an extension is not legally binding, the Government made it clear in that debate that we would seek an extension if that was what the House voted for. The other place then voted to approve a Motion to seek to extend the Article 50 period. An extension has therefore been agreed with the EU and the Government are now committed to implementing that extension in domestic law.

This is a vitally important instrument with a simple but crucial purpose. It will make sure that our domestic statute book reflects the extension of Article 50 that was agreed with the EU on Friday 22 March. As the House will be aware, the decision adopted by the European Council and agreed to by the UK provides for two possible durations. Should the other place approve the negotiated withdrawal agreement this week, the extension will last until 22 May. If it does not approve the withdrawal agreement this week, the extension will last until 12 April.

These regulations, laid under the European Union (Withdrawal) Act 2018, therefore cater for an extension in either scenario by redefining exit day to ensure that the day and time specified in that definition is 11 pm on 22 May or 11 pm on 12 April, depending on whether the other place approves the withdrawal agreement.

I note of course that the noble Baroness, Lady Hayter, has tabled an amendment to today’s Motion which I am sure she will speak to in a moment. As ever, my noble and learned friend Lord Keen stands ready to respond to that in his closing speech.

I take this opportunity to respond directly to a question put yesterday to my noble friend the Leader of the House by the noble Lord, Lord Pannick. I assure the House that the Government have considered carefully the vires under Section 20(4) of the 2018 Act and are satisfied that they have the power to make these regulations under that section. Section 20(4) provides that regulations may be made to,

“amend the definition of ‘exit day’ … to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom”.

That power applies only where the day and time specified in the definition of exit day differ from that when the treaties will cease to apply.

Following agreement with the European Council last Friday, the day and time that the treaties cease to apply do now differ from that contained in the definition of exit day. However, the European Council decision identified two possible dates when the EU treaties will cease to apply. Consequently, the amendment to exit day reflects those two dates, applying the same condition, and, in doing so, ensures that the day and time specified in the definition are the day and time that the treaties cease to apply to the United Kingdom. Only one day and time will apply at any given time.

It would be contrary to a natural reading of the words in subsection (4) to suggest that the power may not be exercised in this way to reflect the conditionality in the extension agreed with the EU. I would also draw attention to paragraph 21 of Schedule 7 to the Act, which puts beyond doubt that the powers in the Act may be used to deal with supplementary matters.

The effects of the instrument will apply across the domestic statute book, so it is important that I set out the details of what it will do and why. Currently, major changes to the domestic statute book reflecting our exit from the EU are due to take effect on exit day, which is defined in the European Union (Withdrawal) Act 2018 as 11 pm on 29 March 2019, despite the extension terms that have now been agreed at the international level. These changes apply across a huge number of policy areas, from emissions trading to Europol. All the changes are designed so that our statute book works when we leave the EU. However, because in many cases they amend EU regulations they are inconsistent with the situation in which we remain a member of the EU for a couple more weeks or months.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

As I just said, that is what he was told by Ministers present in the Cabinet. I was not there; he was not there. I am reporting—

[Lord Forsyth of Drumlean]

Would that be one of the Ministers who had broken the Ministerial Code by defying a three-line Whip?

[Baroness Hayter of Kentish Town]

Sadly, Robert Peston is such a good journalist that he does not name his sources. I would love to know just as much as others.

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[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.

--- Later in debate ---

[Lord Forsyth of Drumlean]

I cannot resist responding to the most extraordinary speech that I have heard since the noble Lord, Lord Kerr, said that the British people would come to heel on this matter. The noble Lord, Lord Hannay, said, “You had better get used to having your laws made by people who are not accountable”. As we know, the change in the date was made over dinner by people who are not accountable. The noble Lord, Lord Pannick, said with zeal: “If only they’d listened to me and our advice here”. The Act was passed by an overwhelming majority in the House of Commons, the elected House.

Turning to the noble Duke, the Duke of Wellington, I could not help but think, seeing the mess we are in today because Parliament is stuffed full of people who have deliberately set about trying to frustrate the result of that referendum, of what his very great ancestor said—that nothing except a battle lost can be half as melancholy as a battle won. There are no victors here, and the losers are the millions of people in our country who took the Prime Minister at her word when she said that we would leave the European Union on 29 March, as she told the House of Commons on more than 108 occasions.

I thank my noble friends on the Front Bench for having had the courtesy to listen to someone who has not, so far—I do not believe he will—entered this debate to say, “I told you so”. That is my noble friend Lord True, who yesterday pointed out to the Government that they should not subvert our due process by suspending Standing Orders to bring this statutory instrument before the House. The Government are to be thanked and congratulated on the fact that they did today what yesterday they said was impossible: they got the Joint Committee to look at the SI, and the Joint Committee miraculously found a printer who was able to print the results of its deliberations, and the House has been suspended so that we can see what the committee had to say on this important matter. It had nothing to say at all.

It had nothing to say at all because this is a stitch up—a fait accompli. The Prime Minister went to Brussels and signed up to this extraordinary proposition —I agree with many of the points made by the noble Lord, Lord Pannick—with these two dates, where people who are not accountable to our voters imposed conditions.

[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.

[Lord Warner (CB)]

My Lords—

[Lord Cormack]

My Lords—

[Lord Forsyth of Drumlean]

I will give way in a second. There has been a conspiracy where Members of both Houses have sought from the beginning to frustrate what 17.4 million people voted for. I agree entirely with my noble friend Lord Robathan that this has done huge damage to Parliament and people’s trust in politics. In this unelected House, some Members glory in the fact that they have been able to undermine what a huge majority in the House of Commons voted for in asking us to accept our fate of being told what to do for the next two years against what people voted for in a democratic vote.

[Lord Warner]

Can the noble Lord explain to the House why, after she was requested to seek an extension, the Prime Minister decided of her own motion on the date of 30 June without, as far as I can see, any consultation with the EU? On the question of why the EU did or did not agree with her, it was because it was not prepared for that and so chose an alternative date to the one she offered. I thought that the noble Lord would be rather pleased with a shorter timetable than the one the Prime Minister asked for.

[Lord Forsyth of Drumlean]

I am unable to assist the noble Lord. I have no idea why the Prime Minister has done a whole load of things throughout this process. It has brought us to a very poor position.

[Lord Cormack]

My noble friend is waxing eloquent about conspiracies. What about the conspiracy of the ERG, which sought to take over the Conservative Party in another place?

[Lord Cormack]

Oh yes it is. My noble friend has supported the ERG throughout, as far as I understand it. He has always ignored those of us who have totally accepted the result of the referendum. If he had read a single one of my speeches in these debates, he would know that we want a seemly Brexit that recognises the interests of the 16 million people concerned about a decision they thought was mistaken. Where is my noble friend’s allegiance to democracy in all that?

[Lord Forsyth of Drumlean]

My noble friend described members of the ERG as being involved in a conspiracy because they sought to ensure what every single Conservative Member of Parliament stood on—a manifesto that said we would leave the single market and the customs union. I describe that as an act of integrity—of keeping their word to the people who elected them. For my noble friend to suggest that he has always been in favour of this and has been working assiduously to deliver what they stood for election on is beyond parody.

[Lord Framlingham (Con)]

My Lords, I am normally quite an optimistic man, but now I am really very close—at least in parliamentary terms—to despair. I despair for the Commons, I despair for your Lordships’ House and the way we have behaved over the past two years, and I despair for the British people who are being so appallingly governed. As an ex-Deputy Speaker, I am really saddened by the way our long-understood and cherished parliamentary rules are being thrown aside by people who should know better in their reckless campaign to stop us leaving the EU. As my noble friend Lord True explained to the House yesterday, it is vital that we differentiate clearly between the issues that may divide us—however important—and the structures and mechanisms that allow us to decide these matters in an orderly way. In stormy seas, it is important to cling to the structures that have served us so well in the past. Without a firm and settled framework in which to work, we will descend into chaos—indeed, perhaps we already have.

This leads me on to the pantomime taking place in the Commons today: a circus, with the Speaker as ring- master and the Prime Minister and Government as mere onlookers. What nonsense: indicative votes. All these suggestions and countersuggestions—second referendums, Norway, customs unions, hard Brexit, soft Brexit—have only one thing in common: they are all designed to prevent us leaving the European Union. That is what it is all about; it is a very simple matter. There is a pretence of accepting the referendum result, and I have heard it again in the Chamber today. How many people start their remarks by saying, “I completely accept the referendum result”, and then go on in their speech to indicate quite clearly that they have not, do not and never will? They call it improving the Bill or a better deal for the country. The truth is that they want to stop us leaving and to stop happening what the majority of the people in this country voted for and still want.

We have been told times without number by the Prime Minister that we leave on 29 March. I need not remind noble Lords that that is the day after tomorrow. If only we had had the honesty and courage to keep our word, get on with it as the country is urging us to do and remove the uncertainty, as people are crying out for: no more haggling deals; start trade talks; keep our money. What about all those companies that have planned for 29 March and are now told it is not happening—all those companies and people who believed the Prime Minister and planned to leave on that date? I do not believe that the Prime Minister should have agreed to extend the departure date in the way she has. This statutory instrument and the need for it are highly questionable. Although I would not want to damage British business or all the institutions, I find it absolutely intolerable that we have been put in this position by a Prime Minister who simply could not or would not keep her word.

--- Later in debate ---

[Lord Keen of Elie]

When I am at the Dispatch Box, I always speak on behalf of the Government; that at least is my understanding. I am addressing not the matter of the policy of the Government, but the matter of the amendment and where it would lead us. On that, my respectful view is that it would be a wholly reckless course of action for this House to adopt. I invite noble Lords to consider very carefully the precise terms in which it has been expressed.

The noble Baroness, Lady Ludford, raised a number of issues about the position of the ECA and the matter of its repeal, in the context of the statutory instrument. Indeed, this touched upon points then made by the noble Lord, Lord Pannick: that the 2018 Act had been enacted but a number of provisions had not yet been commenced, having been deferred from Royal Assent. I accept that his analysis of the commencement provisions is, as I understand it, entirely accurate. In particular, there has been no commencement provision in respect of Sections 1 to 7, albeit that there has been commencement provision in respect of a number of other parts of the Act.

I confess that this can lead one into difficulty; certainly, it led me into difficulty on an earlier occasion in this House when I observed, in response to a question from the noble Lord, Lord Anderson of Ipswich, that the provisions with regard to European elections were repealed because that is expressly provided for in the 2018 Act—without appreciating that those provisions had not been commenced. I have some sympathy for the need for a detailed analysis of what has been commenced and what has not. That said, I want to be clear that the reason for not commencing Sections 1 to 7 is that as a general rule such commencement provisions are brought in only as and when the relevant statutory provisions are going to be required, and it is not for the reason suggested by the noble Lord. Nevertheless, I acknowledge that any withdrawal agreement Bill may amend the withdrawal Act provisions with regard to retained EU law to reflect what is or may be agreed in a withdrawal agreement. Therefore the withdrawal agreement Bill may well address a number of features of the existing 2018 Act.

A number of noble Lords, including my noble friend Lord Robathan, alluded to the Prime Minister having expressed the opinion on a number of occasions that we would leave the EU on 29 March 2019. However, as I believe Keynes once observed, “When the facts change, I review my opinion. What do you do?” In light of the facts having changed, it is hardly surprising that that opinion has changed.

A number of noble Lords, including the noble Baroness, Lady Ludford, asked whether the European Council determination was a matter of EU law. It is a decision under EU law but, obviously, one that is recognised at the level of international law. It is therefore a matter of EU law, as an expression of determination that is recognised by Article 188 of the Treaty on the Functioning of the European Union as binding upon any member to which it is directed, but is also a decision of determination that would be recognised at the level of international law. That is why, although we have agreed these dates at the level of international law, having regard to the duality principle we have to ensure that they are also recognised and implemented at the level of domestic law.

There were a great number of other observations but perhaps I can touch upon just two. First, my noble friend Lord Forsyth suggested that this Government had achieved the impossible, and I am obliged to him for his suggestion that we are capable in that regard. Nevertheless I would have to draw back a little from that proposition, which he mentioned in the context of the functioning of the Joint Committee. The point that I simply make is that it is not for the Executive to direct these committees on how they function and discharge their functions. As it transpired, that committee very helpfully, readily and appropriately brought its proceedings forward, but it was not for the Executive to try to bind it to do so.

[Lord Forsyth of Drumlean]

If my noble and learned friend checks Hansard, he will find that I said the Government had achieved the impossible by finding a printer who was able to print the result. His boss, the Leader of the House, told us that that was one of the things that it would not be possible for this Government to achieve.

[Lord Keen of Elie]

Again, I am very pleased at my noble friend’s acknowledgement that we have achieved something that was otherwise regarded as impossible. It is encouraging that we have such support, at least from our own Benches. [Laughter.] Those opposite are the Opposition, not the enemy. We must do something about knife crime.

Secondly, the noble Lord, Lord Adonis, repeated, as he has done often before, his uncompromising advice on what we got wrong and how to put it right—but on this occasion he did it, as he said, with humility, so some things are beginning to change. The other observations that were made in this invigorating debate really had nothing to do with the instrument or with the Motion that has been tabled. I therefore shall not pursue them at this time of the evening.

I finish by begging to move that the instrument should be approved and again encouraging noble Lords to look carefully at the precise terms of the Motion that is to be moved by the noble Baroness, Lady Hayter of Kentish Town. We cannot have a situation in which the Executive are purportedly bound to any Motion that has not yet passed in the Commons. That way lies chaos, which is the one thing we do not need at this point in time. I am obliged to noble Lords.

EU Withdrawal

Lord Forsyth of Drumlean Excerpts

Wednesday 13th February 2019 Lords Chamber

[Baroness Meyer]

I completely understand what the noble Lord is saying and completely agree with him. In the east, they all wanted to join the European Community. It was seen as a symbol of freedom. This is not my point. My point is that it was implied in the previous debate that the European Union—when it was called the European Community—played a role in liberating the communists, and that this is entirely wrong. It had no role whatever.

[Lord Forsyth of Drumlean (Con)]

My recollection of those days, when those brave people in eastern Europe were liberated, is that their leaders wanted to know, “How quickly can we meet Margaret Thatcher, who has done so much to give us this freedom?”.

[Baroness Meyer]

Absolutely—I have the same recollection.

The point I am trying to make is that people are over-exaggerating in all these debates. I know that some people say the Brexiters are exaggerating on one side, but the remainers and reversers are also totally over-exaggerating. They have a nostalgia for a European Union which is a completely different entity. The European Community that noble Lords may be idealising had 12 relatively cohesive members. We are now leaving a squabbling group of 28 members, where even the EU’s core democratic values are in question. The “ever closer union” has come to a halt and the economy looks to be doing the same. What is economically essential to complete the eurozone has become politically impossible, as President Macron has learned to his cost. As the BBC would say, despite Brexit, we are actually doing rather well economically.

Compare us with France and Italy, as well as with Germany, which is now falling into recession. We need to be realistic. We keep looking inwards at what is happening in this country; this is not happening in the rest of the European Union. The real threat to prosperity is not Brexit—as some noble Lords call it, “crashing out”—but uncertainty and indecision. If one message comes over loud and clear from businesses and people in this country, it is, “Get on with it”. This is another way of saying, “Just do as you were instructed”.