Trade Bill

Debate between Lord Goldsmith and Baroness Noakes

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 8th October 2020 Grand Committee

[Baroness Noakes (Con)]

My Lords, it is indeed a pleasure to follow the noble Baroness, Lady Smith of Newnham, and to be reminded of a pleasant afternoon we spent last month debating reports from the Constitution Committee and the EU Committee on the handling of treaties. I think it would be helpful to remind ourselves of some of the things that were in those reports. I have to say that that afternoon I was, as I shall be today, no doubt, the only participant supporting the Government, and the rest of the participants in that debate were repeating lines we have heard already and will continue to hear on this issue.

The Constitution Committee looked in particular at the European Parliament processes which were referred to by the noble Lord, Lord Purvis of Tweed, and my noble friend Lady McIntosh, and it recommended not replicating them. There was a very clear finding that we should not replicate them, and the committee pointed out the differences with the European Parliament as a supranational Parliament. The noble Lord, Lord Purvis of Tweed, earlier referred to Jack Straw in relation to the CRaG Act. Noble Lords might be interested that he gave evidence to the Constitution Committee and advised it that he thought that copying the European Parliament’s processes was a rabbit hole down which we should not go.

The other important aspect of the Constitution Committee’s findings was that we should not fetter the royal prerogative and that some of the processes that have been put forward by noble Lords, and that have been put forward again today, do indeed fetter the royal prerogative, as my noble friend Lord Lansley said. That applies in particular to a role in negotiating objectives. The committee did not recommend that Parliament should fetter the royal prerogative in that way.

That debate and these debates come back to a lack of happiness among noble Lords with the CRaG processes. I remind noble Lords that the CRaG processes were not invented when the CRaG Bill was brought forward by the last Labour Government. Those processes were based on the Ponsonby rule, which has existed for a very long time and served Parliament extremely well on the ratification of international treaties. The CRaG Act effectively codified those processes into law and recognised the role that Parliament should have, which is at the end of the process once the royal prerogative has been used to negotiate treaties.

There has been a lot of talk about whether 21 days is enough. We have to remember that it is 21 sitting days, so that would be a minimum of five weeks and sometimes quite a lot longer, so this is not a minimalist period for parliamentary committees to go about doing their work, and I believe that on the whole that has proved adequate for scrutiny take place.

Coming on to whether extra time is needed, which is in Amendment 63 in the name of my noble friend Lord Lansley, we have to remember that CRaG allows the other place not to ratify a treaty—so, de facto, the other place already in effect has the power to require extra time by the simple act of denying approval of the ratification. That can be done an infinite number of times. The other place does not have the power to make changes to treaties but does have the power simply to refuse ratification, and that can be used effectively if the Government were perceived to be acting reasonably. As my noble friend Lord Lansley said, the Government have said that they will respond where possible to any reasonable request for further time, and I think that that is a perfectly reasonable position for us to be in.

I will comment on only one other amendment in this group, Amendment 98, which seems to be another opportunity for Parliament to disapprove of a no-deal Brexit by denying this Act to come into effect if it does not approve a no-deal Brexit. As we know, the Government do not want a no-deal Brexit, but we may not achieve a free trade agreement with the EU, and if we have to exit on a no-deal basis, that is what we have to do. Had this amendment gone into the Bill we were considering a couple of years ago, it might have had some purpose to it for those not of a Brexit persuasion to have a last gasp at trying to keep us in the EU. However, with the current electoral result in the other place, with a large majority that was elected on a clear campaign promise to get Brexit done, I cannot believe that Amendment 98 has any real place in the Bill, and I hope very much that the noble Lord will not press it if it comes back on Report.

[Lord Goldsmith (Lab) [V]]

My Lords, this is the first time I speak on the Bill; I apologise to noble Lords that I have not done so before. I am prompted to do so because of the references that have been made in this debate and in some of the amendments to the EU International Agreements Sub-Committee, which I have the honour to chair. I want to speak not so much about the detail of some of the amendments —I cannot speak with the authority of the committee as it has not taken views on some of them as such—but to lay down a marker. If some of these amendments come back on Report, I may well not be quite so reticent.

I will make some basic points about the job that we have now been tasked to do by your Lordships’ House, which is to scrutinise international agreements—not simply trade agreements, although they are obviously an important part of that. Reference has already been made to the debate which took place on 7 September, if my memory serves me right, on three reports: the report that we had produced on Treaty Scrutiny: Working Practices, alongside the report of the Constitution Committee, which is chaired by my noble friend Lady Taylor of Bolton, and the Lessons Learned report of your Lordships’ EU Committee. As we noted in our report, which is the most recent of them, at paragraph 23:

“all three reports called for greater transparency; a role for Parliament much earlier in the process of negotiating international agreements; and a proper role for the devolved institutions. Significant concerns were also expressed as to whether it was possible to conduct meaningful parliamentary scrutiny within the timetable permitted under the CRAG Act.”

We had a good debate; I repeat the thanks to noble Lords who participated in it. Sadly, the noble Lord, Lord Grimstone, was not the Minister on that occasion, so we did not have the benefit of hearing his responses to those reports—I hope that today will provide an opportunity for him to do so. However, I believe that he shares our belief, if I dare take his name in vain, that parliamentary scrutiny of international agreements is crucial and that we have moved on from the days when it was thought that the sovereign—read now the Executive—could simply enter into agreements without any involvement of Parliament.

I acknowledge that the CRaG process has changed this, at least to some extent. However, it is still ex post facto—after the agreement has been made—which gives rise to the serious problem that Parliament, whether it is the other House or the comments that this House make on it, has to take it or leave it. Under CRaG, strictly interpreted, it is not until the deal is done that the matter is subject to scrutiny, and then, in the case of the other place, the sole weapon is to withhold consent.

Business of the House

Debate between Lord Goldsmith and Baroness Noakes

Wednesday 4th September 2019 Lords Chamber

[Baroness Noakes]

A great start, but not necessarily the finish, to getting the right balance in your Lordships’ House. I believe that this House and the other place need to think very carefully when acting so out of line with the result of the referendum. Through that referendum, Parliament ceded control of the decision to the people—the people are the ultimate source of authority in the country—but has been trying ever since to take it back, both in this place and the other place. We run the risk of doing serious harm to the institutions of Parliament.

[Lord Goldsmith]

My Lords, the issue before the House is whether or not to agree the amendment moved by the noble Lord, Lord Marlesford. I suggest first that the noble Lord withdraws it, but I suspect that that is not going to happen, and, secondly, that the House does not accept the amendment. The reasons are those that have been given already. It does not add to the point about the programme Motion, which says that the Bill, if it reaches us, should be dealt with in accordance with a procedure which would give two clear days for it to be dealt with. I respectfully suggest, as was the point of my intervention on the noble Lord, Lord Marlesford, that it is not helped by adding this statement, whether ironic or political. The real question ultimately is whether or not the programme Motion should be agreed. On that basis, I invite the noble Lord to withdraw the amendment. If not, we will oppose it.

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[Lord Goldsmith]

I may have given the noble Lord advice, but I did not expect him to take it.

[Baroness Noakes]

Noble Lords should have got the understanding that we are not trying to debate the Bill but the Motion, and therefore the mechanism of achieving the Bill. We do not believe that it is right and proper to use the guillotine Motion. We believe that the House should look at that extremely carefully before ever contemplating it. To come back to my amendment—I am sure noble Lords opposite would like me to return to my amendment, although I am happy to take any other interventions—

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[Baroness Noakes]

My Lords, Amendment 2E in the name of my noble friend Lord True was going to be moved by my noble friend Lord Forsyth. However, as our business has not progressed as quickly as we expected, he is on his way to catch the sleeper train to Scotland. I can tell that the House is disappointed that he is not taking part in dealing with this amendment.

I am pursuing what my noble friend Lord True started with the previous amendment: trying to find out how those who have tabled this Motion see the interaction between it and the proceedings taking place in the various courts mentioned. My noble friend Lord True dealt with the English court action. Amendment 2E deals with the proceedings relating to Prorogation in the Scottish courts.

The temporary interdict, as I think it is called in Scotland—those of us who learned our law elsewhere call it an injunction—was not granted. We had Lord Doherty’s judgment today. He said:

“This is political territory and decision making which cannot be measured against legal standards”.


He also said that accountability should rest with,

“parliament, and ultimately the electorate”.

From the point of view of those initial proceedings—this was in response to those taken by a number of MPs and noble Lords—that seems to be settled. However, as I understand it, there is a possibility of that decision being appealed.

Putting it more directly to the noble and learned Lord, Lord Goldsmith—who I believe is answering on the Front Bench at the moment—since the original action has now been settled against those seeking an interdict, if the decision is appealed and it is determined that Prorogation should not take place, does that affect how the Motion is put together? Given that many noble Lords said earlier today that they believed they were forced into this action because of the nature of Prorogation, it seems to me that the need for this Motion falls away if Prorogation falls away.

These amendments have been drafted to establish the interconnection between the Motion and whether Prorogation is allowed to remain in place or is defeated by the various legal actions. I am trying to find out Her Majesty’s Opposition’s position on this from the noble and learned Lord, Lord Goldsmith. I beg to move.

[Lord Goldsmith]

My Lords, it is hard to resist an invitation put by the noble Baroness, Lady Noakes, but the position is quite straightforward: legislation is one thing, litigation is another. At the moment, Prorogation is going to take place; no court has said that it will not. In those circumstances we are faced with the ultimate guillotine, if your Lordships like, of seeing the business in this House stopped. That is why we want to agree the Motion moved by my noble friend Lady Smith of Basildon: to make sure this House has a full opportunity to deal with the Bill, which has now arrived from the other place. It arrived during the debate and we will, we hope, be taking it. As it stands at the moment, as I said, Prorogation will take place.

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[Baroness Noakes]

My Lords, I had already arranged with my noble friend Lord True that I would speak to Amendment 2K. It is similar to Amendment 2J, which I moved on behalf my noble friend. It relates again to Standing Order 40. Paragraph 1 of the Motion tabled by the noble Baroness, Lady Smith, dispenses with Standing Order 40(3) to 40(9). This amendment would dispense with Standing Order 40(3) and 40(5) to 40(9) but would leave in place Standing Order 40(4), which says:

“On all sitting days except Thursdays, notices and orders relating to Public Bills, Measures, Affirmative Instruments and reports from Select Committees of the House shall have precedence over other notices and orders save the foregoing”.


As I said when I moved the previous amendment, we should play around with Standing Orders only when it is absolutely necessary. I do not think that we had a convincing explanation from the noble and learned Lord, Lord Goldsmith, as to why these parts of Standing Order 40 have been chosen to be dispensed with to speed up the Bill that has come from the other place.

Standing Order 40(4) says that,

“On all sitting days except Thursdays”,

these notices and orders are important. Of course, the Motion relates only to Thursday and Friday, which is not a normal sitting day. It is open to question why the preparers of this Motion have decided to eliminate Standing Order 40(4). We should override Standing Orders, which are there to help us to do business efficiently and properly on a regular basis, only when we completely understand why they are being removed. Amendment 2K is designed to ensure that Standing Order 40(4) remains intact despite the Motion proposed by the noble Baroness, Lady Smith of Basildon. I beg to move.

[Lord Goldsmith]

My Lords, the answer on this amendment is the same as that on the last amendment. The Motion tabled by my noble friend Lady Smith of Basildon has been drafted to ensure that this House will have the maximum time to consider the Bill that has come from the other place if the Motion is passed and be able to complete the Bill before Prorogation. The need to avoid that problem is at the heart of all this. Those who are experienced in the procedures of the House know that there are ways in which time can be taken and things can be undermined so that the House will not have the time to consider the Bill. That is what this is all about.

I have to say to the noble Baroness that this is no different from the previous amendment. She has seen what the House thought of that. It was rejected overwhelmingly. In those circumstances I respectfully suggest that the noble Baroness have the courtesy to accept that that is what this House will do on this amendment—and indeed the subsequent amendments which are in exactly the same form—and withdraw it.

[Baroness Noakes]

My Lords, I understand that the noble and learned Lord, Lord Goldsmith, wishes to curtail discussion on this Motion. However, I do not think that he has explained why we should dispense with Standing Order 40(4) and I wish to test the opinion of the House.