Brexit: Preparations and Negotiations

Lord Newby Excerpts

Monday 23rd July 2018 Lords Chamber

[Lord Newby (LD)]

My Lords, it seems extraordinary that the Chequers Brexit summit was little over a fortnight ago and that the Government’s White Paper embodying the Chequers agreement is a mere 10 days old. At the time, it all seemed so rosy for the Prime Minister:

“Chequers-mate: Theresa May ambush routs cabinet Brexiteers”,


screamed the Sunday Times, for example. Well, it does not look so rosy now. Although about the only thing that everybody seems to agree on is that the White Paper will not survive in its current form as the basis of any Brexit deal, it is by far the most detailed exposition of the Government’s Brexit policy that we have seen, and it lays bare the inherent challenges of Brexit. It is the first time that the Government have begun, albeit partially, to accept that you cannot have your cake and eat it—that you cannot have both market access and control of the rules, and that very many features of our EU membership are unambiguously beneficial to the UK.

The core of the document, of course, deals with trade. On goods, the Government’s policy is to be part of a free trade area, accepting all EU rules in perpetuity but seeking to retain the right to have our own trade deals by separately collecting UK and EU tariffs for goods trans-shipped through the UK. It also seeks to allow EU content in UK exports—most of the components by value in all cars, for example—to be treated as though they were manufactured in the UK. All this is to be made possible by a non-existent technology to be introduced over an unspecified timescale at an unspecified cost to both government and individual businesses. It is highly unlikely to be acceptable to the EU in its current form.

For services, no such closeness of rules or access is even planned. As the White Paper starkly puts it,

“the UK and the EU will not have current levels of access to each other’s markets in the future”.

This is a quite extraordinary policy, which explicitly acknowledges that the UK will willingly forfeit economic activity, jobs and tax revenue for the wholly unspecified benefits of flexibility. If anybody has any doubts about the consequences, listen to the CEO of Lloyds of London, which has operated here since 1686. Speaking last week, she said that Lloyds,

“will be moving at pace now”—

to Brussels, that is—and that,

“we will be full steam ahead”.

To a greater or lesser extent, that approach is now being adopted right across the financial services sector.

Reading the White Paper as a whole, however, you can see why the Brexiteers are so angry. On my reckoning, it lists no fewer than 62 EU bodies or programmes in which it wishes the UK to participate post Brexit, and it is clear why that is the case. All these programmes and bodies are crucial to our prosperity, security and well-being. To be outside them altogether would be extremely damaging. They do, however, all constrain our freedom of independent action, so it is not surprising that the Brexiteers see Britain under the White Paper as a Gulliver, shackled by the myriad constraints of the EU Lilliputians.

But that is not the correct analogy. Those who wish to retain the many benefits of our association with the EU without the cost are like the man who is in the process of divorce negotiations and who says to his ex-wife, “Will you be my live-in mistress afterwards, or I won't pay the alimony?” That is not normally a realistic or successful approach.

The White Paper, of course, has in effect been changed by the amendments to the customs Bill, which the Government accepted, at the hands of the ERG last week—as the noble Lords, Lord Forsyth and Lord Liddle, pointed out. One of them, on my reading at least, directly contradicts paragraph 17a of chapter 1 of the White Paper, in that it would require the EU to collect UK tariffs as part of the facilitated customs arrangement. I am sure that the whole House is agog to hear the Minister’s more detailed exposition of that position at the end of the debate—only another six and a half hours to wait. Another amendment would require VAT to be accounted for and to be payable when goods are imported to the UK rather than when they are sold. That would have severe implications for the cash flow of thousands of small businesses.

These amendments show the palpable weakness of the Government, but they do not fundamentally affect the broad options facing us, or their degree of support in Parliament. However, they have helped to shine a light on an extremely inconvenient truth—that there is now no Commons majority for any proposal that leads to Brexit. In reality it is clear that Brexit now could happen only in one of two circumstances. There is no longer a multiplicity of options; there are only two.

The first option is that we reach a deal, loosely based on either the White Paper or some EU-compliant variant of it. The second is that we reach no deal and simply crash out. As Boris Johnson’s policy-free resignation speech demonstrated, there is simply no third Brexit option on the table. The crash-out option is now being more aggressively planned by the energetic Mr Raab. I suspect that he will go down in history as the man who proved that “no deal” was simply impossible, because the more he seeks to make our flesh creep—by proposing to turn the M26 into a lorry park, forcing 250,000 small businesses to fill out customs returns for the first time, or readying the Armed Forces to move food and medicines round the country—the more people are bound to recoil.

That we should be spending vast sums actively planning for these acts of national self-mutilation, not as a result of war, pestilence or some external threat but simply as a result of a rift in the Tory Party, seems almost literally incredible, particularly to the rest of the world. Incredible or not, I do not believe that this option has anything like majority support in the Commons—if it came to it, it would be rejected.

The second option is based on the White Paper. As Gavin Barwell has already acknowledged, and the EU has made abundantly clear, the White Paper will not be accepted in its current form and further concessions will be needed—for example, by ditching the impractical facilitated customs arrangements and the financial services proposals. If, none the less, a deal were reached on terms that vaguely approximated to the White Paper, it would be even less likely to be accepted by the Brexiteers than the White Paper itself. I simply do not believe that Messrs Bone, Cash, Leigh or Rees-Mogg could possibly vote for it. By excluding services, and demonstrably costing jobs and prosperity, it would also break Labour’s red lines, so Labour could not support it, either.

So it is now pretty clear that neither of the only two remaining Brexit options can survive a Commons vote. In these circumstances, there is only one further option—and that is not to leave the EU. We might now call this the Greening option, because Justine Greening has correctly identified that, if there is no Commons majority for either Brexit option, the only way of breaking the impasse is to have a referendum asking the people how they wish to proceed. Traditionally, referenda have a single question. The Greening option would include three questions—the two Brexit options, and remaining in the EU. But whether we have one question or two, it is now likely—as yesterday’s poll in the Sunday Times suggests—that any referendum would result in a clear preference for remaining in the EU. No wonder the idea of such a referendum is hated.

[Lord Grocott (Lab)]

Given that the noble Lord and his party did not accept the result of the national referendum in 2011 on changing the voting system, and given that he and his party have not accepted the result of the referendum in 2016 on whether we should leave or remain in the European Union, what confidence could anyone have that he would accept the result of any future referendum?

[Lord Newby]

My Lords, it is very interesting that the noble Lord should ask that question. We are talking about the most important issue that the country has faced in my lifetime, and I can give him an absolute assurance, as I have said many times—including to him in response to identical questions—that, if there were such a referendum, it would lance the boil of this question. We would accept the outcome and go ahead on the basis of the referendum result.

[Lord Forsyth of Drumlean]

Given that the noble Lord and his party stood on this policy at the general election and received such a derisory result, and that both the major parties got more than 80% of the votes on this matter, how does he square that?

[Lord Newby]

I think that things have moved on since the last general election. At the time of the election, a lot of people believed the slogan on the bus; a lot of people believed a whole raft of things about EU membership, or leaving the EU, which have proved to be false. All I am doing is explaining how public opinion currently stands. The noble Lord might not like it, but that is where we stand. If we go back two years, it was different; if we go back five years, it was different again. When we first had a referendum, it was two to one in favour. Public opinion changes, and it has changed against the noble Lord’s view. That is why he does not like it and that is why he does not want to have a referendum.

[Lord Howarth of Newport (Lab)]

Does the noble Lord actually think there would be a majority in Parliament for the legislation necessary to introduce a referendum? Does he recognise the problem about timescale, as we are due to leave the EU at the end of next March? Does he think that leavers would accept a ruse so cynically designed with three choices to split the leave vote? Does he think that that would lance the boil?

[Lord Newby]

We are talking about what the options are. I am saying that there are three; perhaps the noble Lord believes that there are others. I believe that there are two relating to Brexit—no deal, or something broadly based on what the Government have produced. I believe the only other option is staying in, and the only way to get that accepted in the country, politically and morally, is through another popular vote.

As for timing, it would be perfectly possible to legislate quickly for such a referendum; it would be perfectly possible to get a very limited extension of Article 50 from the EU. It is typical of what happens when people are losing the argument—they come forward with administrative problems. Are we saying that we could not hold a referendum relatively quickly? Is it beyond our powers? Of course not. The truth is that, if we want to do it, we can do it. The arguments for not doing it are not administrative—they are political.

Finally, as this fractious Parliament takes its summer break, the position on Brexit is now clearer: there are only two options, neither of which can command a majority in the Commons. The only other option is to remain in the EU following a people’s vote, and the people would now vote to remain.

[Lord Grocott]

My Lords—

[Lord Newby]

No, I am not going to give way to the noble Lord again.

Sadly, we will now have to endure nine months of further tortuous negotiations, a bitter debate and loud recriminations before we reach this end point—but reach it we will.

[Lord Green of Deddington (CB)]

Before the noble Lord sits down, does he accept that a major factor in the 2016 referendum was immigration? If so, why has he not mentioned the word in his speech?

Brexit: European Commission Discussions

Lord Newby Excerpts

Monday 9th July 2018 Lords Chamber

[Lord Callanan]

I am not sure what system the noble Lord is referring to, but if he waits until later in the week, we will be producing a White Paper, which I am sure will provide him all the details that he wishes to see.

[Lord Newby (LD)]

My Lords, if I were an exporter to the EU, what difference would I notice between the Government’s plan for a free trade area and continued membership of a customs union?

[Lord Callanan]

We have been very clear that we are leaving the single market, we are leaving the customs union, and we want to set up a UK-EU free trade area based on the principles set out in the Chequers agreement.

European Union (Withdrawal) Bill

Lord Newby Excerpts

Monday 18th June 2018 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, this is the first of the Motions before us today. In addressing it, I will briefly reflect on the role that your Lordships’ House played in consideration of this Bill, and, for the avoidance of any doubt, our approach to today’s business.

Despite attracting perhaps a little more excitement, this is the same procedure that we have for every legislative Bill that comes before your Lordships’ House. I have said before that the process of Brexit cannot be left to those who have no doubt. It is only through consideration and challenge that we get better, if not the best, outcomes for any legislation. This Bill came to us deeply flawed and divisive. Together as a House, we approached it thoughtfully and diligently. We have had some long days and some long nights in Committee and on Report. We are grateful to those Government Ministers across departments who have been willing to engage on some of the less controversial but equally important issues.

Of around 200 amendments passed, 15 did not enjoy the full or initial support of the Government. Of these, one was totally accepted on agencies and another largely accepted, with minor changes, on Northern Ireland. Eight were rejected, although on some of these enhanced protections for EU-derived protections the Government have since made further concessions, or, in the case of sifting, reinstated earlier amendments. Five have been replaced with amendments in lieu. We will consider these today, including the one we are talking about now on the customs union and the publication of primary legislation to enforce environmental protections.

We are grateful to the Government for their consideration and acceptance of so many of the points raised in your Lordships’ House. Even before the Bill returned to the other place, significant changes were made on a range of issues, including removing the power to levy taxes or establish new public authorities by statutory instrument, which is particularly important for the new environmental enforcement body; additional explanatory statements and reports to Parliament; the introduction of sunset clauses on some issues; the prevention of the repeal or amendment of devolution clauses by secondary legislation and significant amendments in your Lordships’ House on devolution provisions; and clearer guidance for courts and tribunals relating to future decisions of the CJEU. Importantly, we have seen the removal of a clause that I had never seen before in legislation; that is, one giving a Minister the ability to amend the Bill via an SI. That has gone.

Despite disappointment at the rejection of some Lords amendments, this legislation is better for the work that we have undertaken. We have not exceeded our defined and limited role, but we have used our remit to provide for greater consideration, further reflection and meaningful changes. As the Leader of the House has said previously, reinforced by Ministers in the other place, there is no legislation that does not benefit from scrutiny in your Lordships’ House.

We understand that in a democracy this can be both an asset and, at times, a source of frustration to government. Canadians describe their second Chamber as a Chamber of sober second thought—a further opportunity to think things through and fine-tune legislation. That makes the outbursts of some pro-Brexit MPs all the more ridiculous. As we discuss these final amendments from the House of Commons, we have seen a fair bit of sabre-rattling from some of the most enthusiastic Brexiteers and supporters. Inaccurate and misleading press headlines such as “Enemies of the People” and “Saboteurs” may add excitement and drama, but they do nothing to improve the quality of debate or journalistic integrity.

We have also heard calls for this House to be abolished, to be replaced with a committee of experts or an elected House. I know that many hold honourable and genuine positions on different kinds of reform, but to base a case for fundamental change to and abolition of the current system on disagreement on a Bill shows poor judgment. In response to proposals for an elected House or House of experts, I suggest that such a House might not be quite so compliant in accepting the primacy of the House of Commons.

Today, our role is very clear. This House does not and should not engage in ping-pong lightly or without thought. The process of ping-pong is not to challenge the elected House, but to provide an opportunity. Where matters are clearly and obviously unresolved in the House of Commons, that is where they should be dealt with. The reported disagreement since Friday between the Government and their own MPs is not one we should seek to intervene in, other than to provide an opportunity for MPs’ consideration, and it can be resolved only by those elected to the House of Commons.

Lords Amendments 1 and 2 on a customs union have been returned to this House with, in effect, just one amendment, changing “customs union” to “customs arrangement”. This is unnecessary, but I understand why the Government have done it. It is because the Government do not yet know, even today, what they want. Currently, they have two work streams: a customs partnership and maximum facilitation. However, when the Dutch Government are advising their manufacturing industry not to buy car components from the UK because our future customs relationship with the EU is unclear, we know that there is a problem that needs to be addressed urgently. As a result of the amendment from your Lordships’ House, the Government are now committed to return to Parliament in just over four months, by the end of October this year, with a Written Statement on what they have done and how they will proceed. I do not now feel that this is an issue that we should return to the other place.

[Lord Newby (LD)]

My Lords, I associate myself with much of what the noble Baroness has said about the role of your Lordships’ House. The role played by the Lords on this Bill has been completely in line with constitutional precedent. We indeed defeated the Government 15 times, but the Government used the Lords stages of the Bill to introduce more than 150 amendments of their own, including extremely important ones on devolution. That is because they recognised that your Lordships’ House was indeed the place in which the Bill could be improved.

Of the 15 amendments we passed, as the noble Baroness said, the Government have accepted almost half, either in whole or in part. This is not, incidentally, something that one would gather by reading the popular press. The Government have also chosen to use this stage of the Bill to introduce an amendment of their own in an attempt, possibly unsuccessful, to resolve the “meaningful vote” issue. They clearly recognise that the Lords has a vital part to play in improving legislation, even at ping-pong stage, and they are sensibly seeking to do so in this case.

--- Later in debate ---

[Lord Cormack]

My Lords, the noble Lord was entirely right to touch on some of those things. I am very grateful to the Leader of the House for the manner in which she introduced the amendment. We have listened to the other place, which it is our duty to do. I am one of those who, although I share some of the misgivings of the noble Lord, Lisvane, like him, I do not believe that we should push this one any further tonight.

We have had a good day’s debate, but it is important that we try to lower the temperature a bit on both sides of the argument. It has got a little unpleasant from time to time, even in your Lordships’ House. We need to respect each other’s integrity and sincerity. There is no one in your Lordships’ House whose patriotism should be impugned as it was this afternoon. We need to work closely together. We are going to leave the European Union. Those of us who are unhappy about that have to recognise it but, equally, those who take a different line have to recognise that a minority of the whole electorate voted to leave and that, of those who voted, 48% voted the other way.

We are leaving, and this Bill is part of that process. However, in accepting what my noble friend the Leader of the House has said, and endorsing what the noble Lord, Lord Lisvane, has said, I urge everyone, present and absent, to try to ensure that future debates are conducted in slightly more of an atmosphere of mutual respect. This House has an honoured and honourable role to play. I believe that it has done its duty extremely effectively over the past few months. I hope that we shall continue to do that and that in doing it we shall not be sniped at by those whose sniping reveals only their own contempt for the parliamentary process.

[Lord Newby]

My Lords, I am sorry that the Government did not feel able to accept the amendment that your Lordships’ House passed on this issue, but at least we now have a workable amendment.

I have just one question for the Leader. She said that she was confident that the committees would be able to respond “at pace” to the flow of statutory instruments coming before them. I am absolutely confident that they can respond at pace, but can the Government produce the statutory instruments at pace? Furthermore, if 1,000 statutory instruments will be required to implement this Bill when enacted, and given the probability of a transition phase, how many of those 1,000 statutory instruments have to be enacted before 29 March 2019?

[Baroness Hayter of Kentish Town]

My Lords, I can be very brief, because the noble Lord, Lord Newby, has noted exactly the same words as I have—“at pace”. These words alarmed me, because although some of us feel that we worked very hard on this Bill, it is as nothing to what the people on those committees will be doing. I wish them luck.

My question is related to that: when are we expecting the first of these SIs? Now that we have this, we need to move fairly fast to set that up. I very much hope that the colleagues sitting on the other side of the Leader will accept the Motion that we passed today. In that case this would be our last meeting on this Bill. We have already thanked the Bill team again, but it would be wonderful if they did not have to come back. In the meantime, they have at least another day’s work. For the members of these committees, however, their work has just started.

European Union (Withdrawal) Bill

Lord Newby Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Lord Liddle (Lab)]

Perhaps I may make three brief points or what the noble Lord, Lord Pearson, described as hallucinations—although I see that he has gone.

First, I have sat through most of the 156 hours—80 to 90%, I should think—of debate on the Bill. I pay tribute to the Front Benches, my colleagues on the Opposition Front Bench, the Liberal Democrats and the Ministers who have tried to deal with all the complicated issues that have been put to them. I mean that most sincerely, even though I do not agree with them on many of the fundamentals.

Secondly, I was one of those passionate pro-Europeans like the noble Lord, Lord Cormack. I could not bring myself to vote for the Article 50 Bill and voted against the Motion then that the Bill do now pass. I am not going to do that today because we have greatly improved this Bill in the amendments that the Government have brought. In the amendments that we have passed, we have done our duty and it is for the Commons to decide. We are not doing anything undemocratic. I shall put on the back of my bathroom door a photograph of me as an “enemy of democracy” in the Daily Mail. I am proud of that. In fact, we have just been doing our job, and it is up to the Commons to decide. On that, I should say how much I have admired the Conservatives in this House who have spoken so well on many of the issues and their courage in defying the party line.

When the Bill goes to the Commons, a lot of people will debate in their hearts whether they put the national interest before the party interest. However, I have a point for my own party. It is time that the Labour Party stood for the national interest on this issue and opposed a hard Brexit. If all we are going to get is a hard Brexit, then we should have no Brexit at all.

[Lord Newby (LD)]

My Lords, it may surprise them, but I begin by congratulating and thanking the Government Front Bench. I congratulate the ministerial team on passing the first test of successful politicians: they have survived, and that is a signal achievement. I also thank them for at no point suggesting that your Lordships’ House should not pass amendments. During previous Administrations, it has been common, even at this stage, for Ministers on the Front Bench to stand up, on amendment after amendment, saying, “This should not be passed because the Bill has been through the Commons and the House of Lords should simply do what the Commons has instructed”. It must have been extremely tempting for the Government Front Bench to say that repeatedly as the Bill has gone through. It reflects well on the House that Ministers have not done so, and I thank them for that.

I should like also to thank my team, both in the Chamber and our staff supporting us, on what has been a tiring process—in particular, Elizabeth Plummer and Sophie Lyddon, who worked exceptionally hard.

As the Bill leaves your Lordships’ House, it faces an unclear future. We do not, for example, even know when it is going to be taken in the Commons. Certainly, it is not going to be taken until June. This begins to set the seal on what will be a huge challenge for the rest of the year, because the Bill presages 1,000 statutory instruments, many of which need, I assume, to be in place before the Government’s preferred exit day in March next year. The Government are also committed to bringing forward a whole range of other Brexit-related Bills before that deadline. They even have to bring forward a Bill to disapply the vast bulk of this Bill during the transition period. We are in for a very difficult period. I am not going to embarrass the Minister by asking how he hopes to get through this legislative logjam, because I know he does not know and in any event that is for another day. Today, all we can do is send the Bill to the other place and wait for the explosions.

[Lord Cavendish of Furness (Con)]

My Lords—

Brexit: North-East of England

Lord Newby Excerpts

Wednesday 9th May 2018 Lords Chamber

[Lord Callanan]

My Lords, I make no apologies for talking about our record levels of employment in a region of which I am proud to be a part. I am sorry that the noble Lord does not seem to recognise that. Unemployment is continuing to fall. There are record levels of investment. Last year, Nissan announced a new £57 million investment in the region, to last for 25 years. It said it was going to continue to produce cars in the region for many years to come. The region is booming; it is doing well. Unemployment is falling, and I am sorry that the Labour Party does not want to recognise that.

[Lord Newby (LD)]

My Lords, the Minister sought to rubbish the figures given by the noble Baroness, Lady Quin, on the basis that they represented an incomplete analysis. Can he tell the House whether the Government have produced a complete analysis and, if so, what does it show?

[Lord Callanan]

I did not rubbish the noble Baroness’s figures. They are contributing to the debate. I said it was an incomplete analysis and did not model the preferred economic outcome that we are seeking. We are continuing to conduct a range of economic analyses of all exit scenarios for all parts of the United Kingdom, and we will share all the appropriate analysis with Parliament when we have negotiated a final deal.

European Union (Withdrawal) Bill

Lord Newby Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Lord Hannay of Chiswick]

That is a political judgment about the views of the 27. It is not a political judgment on the views of the British Government, who have always said that they would never under any circumstances propose such an extension—one of those statements which I fear they may have to eat cold at some stage. The answer to my noble friend’s question is that it is a political judgment about the attitude of the 27. I do not think that today we can rule it in or rule it out, and I do not think we should.

Thirdly, we have heard from the Government Benches on a lot of occasions during the passage of this Bill that this is a purely technical Bill; I think the most recent occasion was earlier this afternoon. It is a technical Bill designed simply to prepare our statute book for exit day and that it is not a proper vehicle for policy formulations, in which case, and on that analysis, I suppose the Minister will shortly rise to his feet and accept the amendment, which I would certainly encourage him to do.

[Lord Newby (LD)]

My Lords, I have nothing of substance to add to the speeches by the noble Duke, the Duke of Wellington, and the noble Lord, Lord Hannay, who have made a compelling argument to delete the date from the Bill. Having the date in the Bill was really a very silly move by the Government. It was not in the Bill to start with for very good reasons. It gave flexibility to Ministers to determine what it should be. They put it in only under pressure from part of the Tory party; they only then amended it and made it more complicated under pressure from other bits of the Tory party. The original position of having flexibility in the Bill made eminent sense, was preferable to what we have now, and we should revert to the original position.

[Lord Wigley (PC)]

My Lords, I wish to speak to my Amendment 96, which is associated with this debate, but also to speak to Amendment 95, moved by the noble Duke, the Duke of Wellington. The comments that have been made across the House add up to a sentiment, shared by the overwhelming majority, that it is singularly inappropriate to define 29 March at a certain time as the point of exit.

My amendment suggests that, after the word “means”, we insert:

“the day concluding any implementation period or transition period agreed between the United Kingdom and the EU”.

I am proposing that because the meaning of “exit” should surely be at the end of the implementation that leads to exit; otherwise, there is a contradiction in what we are putting into law. If the feeling in the House is to pass Amendment 95, I should be very content.

--- Later in debate ---

[Baroness Goldie]

We are not reconsidering. We are simply considering the appropriate text. The general point has been made clear by the Government: that they will not want to retract what is already their policy position. They will simply undertake to inform the House when a form of words has been adjusted.

[Lord Newby]

Is the Minister saying that the Government have no intention to come back on this issue at Third Reading?

[Baroness Goldie]

Indeed. That is the case.

European Union (Withdrawal) Bill

Lord Newby Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

Moved by

[Lord Newby]

50: Before Clause 9, insert the following new Clause—
“Parliamentary motions on a referendum
(1) A Minister of the Crown must move a motion in each House of Parliament to provide for the option to hold a referendum on whether the United Kingdom should accept the outcome of the negotiations between the Government and the EU under Article 50(2) of the Treaty on European Union, or seek to remain in the EU by revoking the notification of withdrawal from the EU under Article 50.(2) Such a motion must be moved prior to the enactment of any statute to implement a withdrawal agreement and as a precondition to making regulations under section 9, irrespective of whether either House of Parliament has previously considered or approved a motion relating to the outcome of the negotiations under Article 50(2) of the Treaty on European Union.(3) If both Houses of Parliament approve the option of a referendum, the Secretary of State must not commence any statute nor make regulations under section 9 to implement a withdrawal agreement, but must bring forward proposals to hold such a referendum, and the Government must seek such an extension of the Article 50 period as may be necessary for this purpose.”

[Lord Newby (LD)]

My Lords, your Lordships’ House has just passed an amendment to the Bill that gives Parliament a meaningful vote on any Brexit deal. This amendment, standing in my name and those of the noble Lords, Lord Butler and Lord Wigley, and the noble Viscount, Lord Hailsham, is about what happens next. It says the Government must put forward the option of a referendum on the deal, a people’s vote to determine whether the people as a whole approve the outcome of the negotiations or seek to remain within the EU. It would not require a referendum to be held in all circumstances but only if Parliament—the Commons in particular—voted for one. In what circumstances might the Commons choose to do this? I think it might well choose to do so if it had rejected the deal that the Government had negotiated, and that is a perfectly plausible outcome.

I have had the privilege of listening to almost all the 16 days on the Bill—some 120 hours of debate—and the dubious pleasure of hearing virtually every word uttered by Ministers during the process. Whether we have discussed clinical trials, family law, environmental protection, police co-ordination or international security, the position of the Government has been virtually identical: they wish us to have arrangements as close as possible to those that currently obtain, to the extent of being prepared to submit to the rulings of the hated European Court of Justice in respect of key regulatory bodies, while accepting that we will not have the benefits nor the influence that we enjoy today. In area after area, they accept that we will be powerless rule-takers. The alleged sunny uplands of being in a more favourable position in any of these areas have, to put it mildly, been shrouded in fog. On the key issue of the customs union, vital to the future of Northern Ireland and our trade more generally, and faced with the brick wall of hard reality, the Government’s response is simply that of petulant defiance.

If the Government reach an agreement based on their current negotiating stance, I believe that it will be obvious that it leaves the country poorer, less influential and less secure—as the Prime Minister predicted it would before the referendum. A large majority of MPs and members of your Lordships’ House know this, but may yet vote for it. Why? Because the 2016 referendum vote has become sacrosanct, and the expressed will of the people two years ago holds people under its spell. It is as if it has frozen attitudes in a way alien to the democratic principle, which allows people to change their minds.

There is only one way in which this spell can be broken; there is only one way in which MPs can be liberated to vote for what they know is in the country’s best interest and in line with their beliefs; and that is giving the people the final say. The spell cast by the previous referendum is so powerful because it reflects the political reality that a vote in the Commons to reject a Brexit deal could not be the end of the matter. In those circumstances, the country would demand a final say.

As the noble Lord, Lord Hamilton, put it at Second Reading, such a vote would mean that he had,

“no option but to take to the streets”,—[Official Report, 20/2/17; col. 144.]

because he could not get representation in Parliament. I suspect that he is not alone in that view. To save him from a potential criminal record and in order to give the people, who started the Brexit process, the chance to determine how it should be concluded, a vote on the deal should then be held.

[Lord Hamilton of Epsom (Con)]

As the noble Lord mentioned my name, the Liberals were very reluctant to accept the result of the first referendum, so why will they accept the result of the second one if it goes against what their interests are?

[Lord Newby]

My Lords, the first referendum was a mandate to the Government to negotiate Brexit. At the end of the process, a decision has to be taken on whether that mandate has been adequately fulfilled. The only question is whether the Commons alone or the Commons supported by the people should take that final decision.

[Lord Foulkes of Cumnock]

With due respect to my noble friend, the first referendum was in 1975, overwhelmingly in favour of the European Union.

[Lord Dobbs]

I point out to the noble Lord that in 1975 the European Union simply did not exist. He keeps coming out with all this imaginative stuff. I wish we could get back to the facts.

[Lord Newby]

My Lords, as I was saying, many noble Lords are opposed to referenda, and I have some sympathy with that view, but I am afraid that on this issue the pass was sold when Parliament, including your Lordships’ House, approved the 2015 European Union Referendum Bill. On Brexit, Parliament gave the initial decision to the people; it is in no position now to take a stand on the concept of its own sovereignty on this issue.

[Lord Grocott]

The noble Lord referred to an initial decision. Could he point to any phase in the passing of the referendum Bill when it was emphasised that this would be just an initial decision by the public?

[Lord Newby]

Well, during the referendum Bill, all sorts of things were said, including by many people that it was an advisory referendum. That soon fell by the wayside, did it not?

[Lord Grocott]

My Lords—

[Lord Grocott]

This is a point of clarification. The noble Lord said that it was an advisory referendum in 2016, a point often made by my noble friend Lord Foulkes. Can he answer this simple question? Is the new referendum that he is considering an advisory one or a binding one?

[Lord Newby]

My Lords, I said that during the debate that was said. The truth is that, if you ask the people to have a vote, Parliament, having given them a mandate to have a vote, politically cannot come back and say, “Thanks very much, you’ve had your vote but, actually, we are going to ignore it”. Everybody knows that that is not realistic politics.

[Lord Lamont of Lerwick]

Does the noble Lord remember that in 2008, when other people were not advocating a referendum and there was no renegotiation, Nick Clegg put forward the idea that there should be what he called a real referendum—an in/out referendum? If that had come to pass, what would the Liberals have done if the people had voted no and wanted to leave, and there was no renegotiation? Would that have been binding or not?

[Lord Newby]

My Lords, that was in the completely different context of the Lisbon treaty. In previous debates in your Lordships’ House, a number of noble Lords have thrown at me what former leaders of my party have said. I would just ask the noble Lord, as we are talking about former leaders, whether he agrees with his former leader, Sir John Major, when he made a speech earlier this year and said, of this debate:

“Peers must ignore any noises off, and be guided by their intellect and their conscience”.


To revert to the point that I was attempting to make, on Brexit Parliament gave the initial decision to the people; it is in no position now to take a stand on parliamentary sovereignty on this issue. On Brexit, the horse has well and truly bolted.

It is sometimes argued that people are fed up with Brexit and want to leave it to Parliament and get on and implement it, but that is simply not the case. All recent polling shows that a majority of people now want to have a final say. A poll by YouGov earlier this month, for example, showed that by a majority of 44% to 36% there was support for such a vote. So this is not just the remoaners and, with figures like that, sadly, it is not just the Liberal Democrats. It is a view very widely shared, including by government supporters. In a recent poll of Conservative voters, by a majority of 43% to 34%, almost identical to that of the country as a whole, they said that they now wanted a vote on the issue.

So, what are the objections to the proposed amendment? First, it is argued that it is too soon to put such a provision into legislation. However, just look at the timetable. This Bill will receive Royal Assent sometime in June at the earliest. The Government believe that they will negotiate a withdrawal agreement by the end of October, a claim confirmed by the Secretary of State for Exiting the EU before a Commons Select Committee last week. If we take the Government at their word, this means that the approval resolution, provided for in the amendment which the House has just passed, could be brought before Parliament within 20 weeks of the Bill gaining Royal Assent and before any further legislative opportunity to provide for the referendum option had presented itself.

Far from being premature, this amendment is extremely urgent. It is argued by some members of your Lordships’ House that, if the Commons were to reject a Brexit deal, the correct next step should be a general election, rather than a referendum. However, this is a poor alternative. As last year’s general election showed, the issues which dominate a campaign at the start are sometimes very different from those which do so at the conclusion. At that election, polling showed that, in the last crucial days of the campaign, Brexit was supplanted by terrorism as the most important issue in many people’s minds. In any new election, health, education, jobs, housing, the qualities of the rival leaders, and issues which unexpectedly flare up in the campaign itself—as terrorism did in last year’s—would determine how many people voted. An election is, therefore, an extremely unsatisfactory mechanism for taking the people’s view on any single issue.

It is argued that a referendum would be too divisive but, in the circumstances of the Commons voting against a Brexit deal, to deny the people a final say would be even more divisive.

[Lord Campbell-Savours (Lab)]

Will the noble Lord answer the question asked by my noble friend Lord Grocott? I understand that he speaks for his own Front Bench and that what he says is, therefore, the formal position of his party. In the event that this referendum were to take place, would the Liberal Democrats accept its result as binding?

[Lord Newby]

Whatever the legal words, it would be politically binding, by which I mean that the Commons would not seek to overturn it. That is the precedent set by this referendum. We know that, at the time, the vast majority of Members of the House of Commons opposed the outcome of the referendum. They accepted it, though, because that was the political reality, whether it was technically a binding referendum or not. However the people vote if there is a further referendum, that will be taken by the Commons as a binding mandate from the people.

We have to accept that, whatever the outcome of the Brexit process, the country is now very deeply divided. Anybody who has been out canvassing in recent weeks will be only too well aware of that. Many Members of your Lordships’ House will know how keenly their children and grandchildren feel on this issue. All of us who are engaged in public life have a duty to reduce this division in the years ahead, but that great challenge now confronts us, referendum or no referendum.

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[Lord Green of Deddington (CB)]

The noble Lord just made an important point: there is no certainty that that would be granted. Why does the noble Lord believe that it will be? Surely that is a matter for the ECJ, or may become one. What is behind the noble Lord’s remark?

[Lord Newby]

It would be a matter for member states acting unanimously. Not surprisingly, those of us who might wish for an extension of the Article 50 process have taken advice from Members of your Lordships’ House, from representatives of institutions and from other Governments, and we have formed the view that they would in those circumstances allow a limited extension of the Article 50 process to enable a referendum to be held.

This amendment complements the one we have just passed. It provides for an option, not a requirement, for Parliament to decide to hold a referendum when we see the terms of the withdrawal agreement. It would give the people who started the Brexit process the chance to have a final say in its outcome. I commend it to the House.

[Lord Cavendish of Furness (Con)]

Before the noble Lord sits down, could he tell us what the question would be in his referendum? Would it be in essence his speech?

[Lord Newby]

I suggest that the noble Lord reads the amendment.

[Lord Wigley (PC)]

My Lords, I am glad to support Amendment 50, to which I have added my name, which was moved so effectively by the noble Lord, Lord Newby. I will add a few comments of my own to explain why it is essential that a provision along these lines is incorporated into the Bill we send back for further consideration to the elected Chamber.

I make it clear that I have a great dislike of referenda as a tool for sanctioning complex legislation. A referendum may be all right for approving a simple, transparent, binary issue which cuts across traditional party divides, such as opening the pubs on Sundays in Wales, as was mentioned in Committee. The more complex the issue, the more inappropriate a referendum is. However, the genie is already out of the bottle. There is a valid question as to whether a decision taken by referendum can—or perhaps I should say should—be overturned by a vote by Members of Parliament or by a general election, and certainly not by Members of an unelected House. None the less, those MPs who at last year’s election gave their constituents a pledge that they would do everything in their power to ensure that the UK remained in the European Union are duty-bound to redeem that pledge by the way they vote, as are MPs who committed in the opposite direction.

By this amendment we would facilitate MPs having a choice at their disposal when the Bill goes back to them—and in fact, they would have two choices. The first is the fundamental one: that MPs can return to the question of whether the Bill should be amended by them to provide a referendum in circumstances where they deem that appropriate. If we reject this amendment tonight, we would in effect prevent MPs giving further thought to that issue. When circumstances change, sensible MPs may want to change their minds. However, unless we give them the hook on which to latch any initiatives relating to a referendum, we essentially lock out the question of a referendum in any circumstances whatever.

The second area of choice we would facilitate by this amendment relates to the circumstances in which a referendum may be required. I believe that if the Government were able to negotiate a deal which enabled the UK, while leaving the EU, to continue to have a customs union relationship with the EU, and which enabled our industry and agriculture to participate in the single market, as outlined in the Welsh White Paper put forward by the Welsh Government and opposition parties last year, that should be endorsed by MPs without a further referendum. Not least, such an option would resolve both the Ireland and Gibraltar issues, which would be as good a compromise as we are likely to achieve. If, however, the Government fail to reach a satisfactory agreement which protects the interests of exporters and those who depend on the availability of EU workers to meet their needs, and if they secure no agreement at all and we face the utter disaster of a cliff edge prospect, MPs must be allowed to revert the issue back to the people. If voters then endorse a no-deal exit from the EU, with all that that means, so be it.

Some noble Lords may well argue that the decision at that stage should be taken by MPs and that they, if they are so minded, should have the option of overturning the referendum outcome. There are, of course, two basic reasons why this may not be possible. The first is that the Government have repeatedly—and again today—stated that the only option other than the negotiated settlement will be to quit the EU without agreement; essentially, on world trade terms. The Government continually refuse to give MPs or this Chamber the option of being able to reject a hard Brexit. In these circumstances, I believe that MPs should be allowed the option of considering a confirmatory referendum as one outcome. This amendment gives them that option. It allows them the maximum flexibility: it does not instruct them to hold a confirmatory referendum but it allows MPs to go down that path, if circumstances so dictate.

It is for these reasons that I implore colleagues, even if they share my dislike for referenda, to pass this amendment tonight and, by so doing, to enable MPs when this Bill returns to them shortly to keep the referendum option open and, in the fullness of time, to use it if, in their judgment, that is the only way to ratify or reject a worst-case scenario of leaving the EU without agreement. I commend the amendment to the House.

--- Later in debate ---

[Lord Newby]

My Lords, it has been an extremely serious and good debate, and I thank all noble Lords who have taken part. I will make just two comments on points that have been made.

First, a number of noble Lords have said that it would be treating people with disrespect, or contempt, if we gave them more power. I am sorry, but I have difficulty with this concept. It would be treating people with disrespect for a Government to try to ram a solution through the Commons without full opportunity for all the options to be debated and voted on. We have slightly dealt with that issue. In circumstances, however, in which the Commons voted against any deal, to say then that you are treating people with disrespect by letting them have a say seems—to put it mildly—a very curious argument.

Secondly, in response to the argument that this amendment is premature, I repeat what I said in my opening speech: from when this Bill becomes law to a possible final vote in the Commons—and in this House—is a period of approximately 20 weeks, during which there will be a six-week summer recess. In that interim period, there is—as things stand—no legislative vehicle proposed in which such a provision could be inserted. Far from being premature, therefore, this is an extremely timely decision.

I repeat the nub of our contention: if Parliament believes that a Brexit deal is not in the best interests of the country, it should have the courage of its convictions and vote against it. In those circumstances, there should be an option for the British people to have the final say. I beg to test the opinion of the House.

European Union (Withdrawal) Bill

Lord Newby Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Lord O'Donnell (CB)]

My Lords, briefly, I would like to thank the Minister and his officials for their work on this and for their constructive approach. I am very happy to drop my amendment.

[Lord Newby (LD)]

My Lords, I too thank the Minister—I fear that that will not necessarily be very common, so I am pleased to be able to do so now. I am sure he will agree with me that these amendments are sensible, appropriate and necessary.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I commend the Government for these amendments, which respond to and accept the arguments made in Committee. As I argued then, and there is a reason for me repeating this, the very way that we set up quangos—how they are appointed, funded and run, and particularly their reporting structures and independence from both government and any other organisation they happen to be regulating—is key to how they work, hence the need for primary legislation so that we can interrogate all these things. That is why I very much welcome what has been said.

I am afraid, however, that I am led to make one comment, which is aimed not at the Minister but at friends of his in another place. After the vote last week on the customs union, we read in the Sun that the Government were going to remove those Conservative Peers who had voted for a customs union from their various positions on public bodies. I am absolutely certain that those threats, although mere briefings, did not emanate from anyone in this House. That is simply not the way that I have seen those on the Government Benches here work. They recognise the role of the Lords and that it is our job, on occasion, to ask the Commons to think again, even if sometimes that is a bit inconvenient when it comes from their own side. However, it was rather disturbing to learn that there are certain people around No. 10 who could, even for a moment, think that it would be right to undermine the independence and arm’s-length nature of such bodies, as is often written into their statutes, simply because Members of the House of Lords voted in a certain way. Everything I know about Ministers in this House means I know that not only were they not involved in this but they were probably as shocked as I was. Perhaps the Minister would like to take the opportunity to distance himself from such threats and reaffirm what I know to be government policy: that any appointment to such bodies is done without fear or favour and nobody would be taken off them for a choice that they made in this House.

On the essence of the amendment, and particularly given the role of the Minister and his officials, we are happy to support the government amendments.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, I am grateful to the Chief Whip. It is a very wise and sensible move to have a dinner break during long proceedings—but I am not very hungry yet, and I suspect that other noble Lords might have had a late lunch as well. I appreciate that there is a Motion on the table and I am grateful for his suggestion of a dinner break. I assume that the next group of amendments would take us to around 7.30 pm, which would be a more appropriate time for a break. If he insists on putting this proposition to the House, I would ask noble Lords not to support the Government.

[Lord Newby]

My Lords, I support what the noble Baroness, Lady Smith, just said. It is 6.40 pm. It would be unprecedented to break for dinner at this time. I do not suggest that there is anything other than concern for your Lordships’ stomachs in the mind of the Government Chief Whip, but I ask him to reconsider whether he wishes to put this matter to a vote.

[Lord Cormack]

We can negate it with our voices—we do not need to go into the Lobbies.

[Lord Newby]

I suspect that the mood of the House is to negate it—and the quicker we do it, the better.

[Lord Taylor of Holbeach]

I am mindful that the noble Lord, Lord Adonis, is in his place this evening. I do remember him getting extremely hungry.

Brexit: Immigration

Lord Newby Excerpts

Thursday 29th March 2018 Lords Chamber

[Lord Callanan]

I thank the noble Baroness for her Easter good wishes. I think that I will spend my Easter studying amendments to the withdrawal Bill; nevertheless, I hope that we all get some time off. Yesterday the Home Secretary said that we expect to publish a White Paper on a future immigration system before the end of the year in order for consultations to go forward. Legislation will follow that but we have already provided certainty for what will happen during the implementation period up to the end of 2020.

[Lord Newby (LD)]

My Lords, the noble Lord has just confirmed that we will have zero certainty about immigration on exit day, if exit day is in March next year. If there is a White Paper by the end of the year, the chances of getting an immigration Bill through by exit day is nil. How does the noble Lord expect people to judge the impact of exit if they do not have the faintest idea what our immigration system will be at the point of exit?

[Lord Callanan]

I think that the noble Lord is a bit confused about this. We are very clear—and we reached agreement on this—that during the implementation period, which will start on exit day, all the current arrangements will be replicated so that people will have certainty about the system until the end of 2020, another 21 months after exit day. After that, we will put in place a new immigration system, which is what the White Paper will be about. Therefore, we do have certainty on what will happen next year.

European Union (Withdrawal) Bill

Lord Newby Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

[Lord Cormack]

Parliament must have that ability and most Members of Parliament are Back-Benchers, so it is axiomatic that that is the case and I hope that we will come to an agreement on Report that will, in effect, satisfy the purpose of these different but complementary amendments.

[Lord Newby (LD)]

My Lords, as a co-signatory to Amendments 334 and 343, I support them and the thrust of the debate. It can be summarised in a sentence from the noble Lord, Lord Hannay, who said that it was neither necessary nor desirable to have 29 March in the Bill, which was why that date was not in the Bill in the first case.

Noble Lords on different sides of the argument have suggested why there may be a need to be flexible at the end. Can the Minister help me to understand the draft agreement, published last week, which seems to admit of one of them? In Article 168—entry into force and application—a paragraph is printed in yellow, which means that the negotiators have agreed on the policy objective. So, the Government have agreed the following policy objective:

“This Agreement shall enter into force on 30 March 2019. In case, prior to that date, the depositary of this Agreement has not received the written notification of the completion of the necessary internal procedures by each Party, this Agreement may not enter into force”.


That seems to admit of two possibilities. One is that there is a slight delay until the depositary has received the necessary notification of all parties to the agreement, including the European Parliament as well as this one, having gone through those procedures. The other potential meaning—I cannot believe that it is the meaning but it is not clear—is that if by, say, 1 April the European Parliament has not notified its agreement to the agreement, the agreement would fall. I cannot believe that that is the meaning. I thought that the meaning must be that if the formalities of the parties of the agreement have not been completed, the agreement is in abeyance until they have been. It raises the interesting subsequent question as to how the two-year period in Article 50 is interpreted. Can the Minister attempt to explain that position and what the Government understand by the meaning of Article 168 to me?

The bigger point I seek to make is that there are a number of reasons why it may be in everybody’s interests to slightly change the date on which our exit is triggered. The way in which the Bill has been amended does not facilitate that process and it should therefore revert to its original drafting.

[Baroness Goldie]

My Lords, I first thank all noble Lords who have participated in an interesting and very spirited discussion. I know that the issue of exit day in the Bill is important to many in this House. That was certainly the case in the other place, where—as a number of your Lordships have mentioned—multiple alterations were made to the original drafting of the Bill. I hope noble Lords will indulge me in a bit of scene-setting.

Initially, the Bill gave full discretion to the Government on the setting of exit day for the purposes of the Bill, subject to no parliamentary scrutiny procedure. It was also technically possible for Ministers to set multiple exit days for different purposes. Indeed, the noble Lord, Lord Hannay, referred to that. For some parliamentarians, this mechanism was not acceptable because it gave rise to uncertainty as to whether the exit day appointed by the Bill would correspond to the day that the UK actually leaves the EU at the end of the Article 50 process, which had always been the Government’s intention. Therefore the Government brought forward amendments to set exit day in the Bill as 11 pm on 29 March 2019. That was to bring the Bill in line with the calculation of the estimated date and time of exit under Article 50.

However, as the Bill progressed through the other place, some Members highlighted that our first set of amendments did not fully represent a technical alignment with our legal options under international law. To align fully, we would have to provide a mechanism for exit day in the Bill to change, corresponding to the detail of Article 50.3 of the Treaty on European Union. Let me make clear to your Lordships that this is a mechanism that the UK does not have any intention of using. None the less, this anomaly had been highlighted, so a technical amendment to the Bill was tabled that allows the Government to change exit day as defined in the Bill, but only if the date at which the treaties cease to apply to the UK changes from its currently envisaged moment on 29 March 2019.

Any such regulation changing this date in the Act would be subject to the affirmative procedure. I stress that the Clause 14 power does not have access to the “made affirmative” procedure, so the normal timetabling process would apply to any regulations made to amend exit day. That is where we are now with the drafting of the Bill, and I suggest to your Lordships that there are a number of reasons why this position should not change.

First, this issue has clearly been scrutinised heavily in the other place. Indeed, it was possibly one of the most politically salient areas of the Bill, and certainly one of the most amended. Secondly, a sensible, mutually agreeable position was reached in the other place. It was not earmarked as an issue to come back to; it was a settled policy position and it commanded a comfortable majority. Finally, and most importantly, the Bill now matches the reality of the UK’s position under international law. This is the key point: exit day within the Bill should not be significant in and of itself, as it merely mirrors the actual moment at which we leave the EU under international law. Importantly, exit day is the clearly defined pivot on which this Bill turns. With the greatest respect to noble Lords, I therefore cannot support the amendments that seek to alter or undo the compromise reached in the other place.

Let me now try to analyse and comment on the specific amendments.

--- Later in debate ---

[Baroness Goldie]

Turning to the last point first, I have, for the sake of the noble Lord, tried to clarify where the Government were—as he rightly indicates—where they went, and why they went to that position. I cannot add to that: that is why we are in the position that we currently are. I will cover his other point about the connection with the implementation Bill, and I hope he will show me forbearance and let me deal with it.

I turn to Amendments 334 and 343, tabled by the noble Baroness, Lady Hayter, which seek largely to bring the Bill back to the state of its original drafting. However, as I have already set out, the Bill was not acceptable to the elected Chamber in that state. Instead, an acceptable compromise was reached that does two things: it simultaneously diminishes the power of Ministers in exercising delegated powers and increases the role of Parliament. It also introduced flexibility in varying the date, if required. It is not the case, as the noble Baroness suggested, that it is a straitjacket. That fear of rigidity and inflexibility was echoed by the noble Lord, Lord Hannay, in relation to the hypothetical extension of the Article 50 period. If that were to happen, exit day would then be linked to when the treaty ceased to apply, and the flexibility to vary the date is then expressly provided for in the Bill.

The noble Baroness, Lady Hayter, was worried that the insertion of a specific date in the Bill would somehow prejudice the Government’s ability in the negotiations. However, it is the very flexibility that is now in the Bill that enables the Government to respond sensibly and responsibly to whatever the negotiations may produce. That was also a fear on the part of my noble friend Lord Tugendhat and others, but the Government argue that, far from the flexibility prejudicing the negotiations, it facilitates and provides elasticity in the conduct of the negotiations. Given that, I regret that I am unable to support the noble Baroness and the Opposition Front Bench in attempting to overturn the existing provisions of the Bill. We believe that what emerged from the other place strikes the right balance.

I understand that there are concerns regarding the interplay between the implementation period and exit day. However, as I will reiterate shortly, this is not a Bill designed to legislate for the implementation period.

I move now to Amendment 345A, tabled by the noble Lord, Lord Adonis, which would remove part of Clause 14(4)(a). It always distresses me to disappoint the noble Lord, Lord Adonis, but not only am I not departing from my script—as he was speaking, I was busily adding to it. With his amendment, if the date at which the treaties cease to apply to the UK is different from the date we have put in the Bill, Ministers could amend the definition of exit day to any new date and not just the new date on which the treaties will cease to apply, as the Bill currently prescribes. The Government are conforming to international law, and we want to keep the Bill in line with that position. That is why we are unable to accept the noble Lord’s amendment.

Amendments 344 and 346, tabled by my noble friend Lord Hailsham, take a different approach, including seeking to insert a new clause which would make the exercise of powers under Clause 14(4) subject to a parliamentary resolution. Paragraph 10 of Schedule 7 already provides explicitly for a parliamentary vote on any changes to exit day. This was part of the compromise reached in the other place and is, I suggest, an appropriate level of scrutiny.

Amendment 334A, tabled by the noble Lord, Lord Adonis, attempts to shift the setting of exit day into the statute enacted for the purpose of Clause 9(1) of this Bill. I understand the noble Lord’s amendment to mean that he wishes exit day to be set in the withdrawal agreement and implementation Bill—something to which the noble Lord, Lord Hannay, referred a moment or two ago. With respect, I think we are familiar with the sentiments of the noble Lord, Lord Adonis, when it comes to leaving the EU, and I appreciate that within this House he is not alone. However, with regards to Clause 14, the failure to set an exit day for the purposes of this Bill has no bearing on whether or not we leave the EU, but such a failure certainly affects the manner in which we leave. If we cannot set an exit day, many functions of the Bill which hinge upon it—such as the repeal of the European Communities Act and the snapshot of EU law—would simply not occur. That would render the Bill largely redundant, preventing us from providing a fully functioning statute book and creating a void leading to total legal uncertainty when we leave—but we shall still leave.

Amendment 335, tabled by the noble Lord, Lord Wigley, attempts to set exit day at the end of the implementation period. I can appreciate the argument made here, which has been mirrored by some of the contributions made today. However, it is not the role of this Bill to legislate for the implementation period; that is for the forthcoming withdrawal agreement and implementation Bill. To do so in this Bill would link its operation inextricably to the ongoing negotiations, which is not the intention of this Bill. This Bill is intended to stand part and is—I have used the phrase previously—a mechanism or device whereby we avoid the yawning chasm which would occur if a huge bundle of very important law disappeared into a black hole. We cannot allow that to happen.

I accept that Amendment 345, tabled by my noble friend Lady Wheatcroft, is well intentioned. However, I suggest that it is unnecessary. I believe that the intention behind this amendment is to ensure that exit day can be changed if Parliament resolves to instruct the Government to request an extension of the Article 50 process—this was the point to which the noble Lord, Lord Hannay, referred. But as I pointed out earlier, if the Government were to make such a request, and that request was granted, the power would be engaged by virtue of subsections (3) and (4) anyway, so it is covered. I also reiterate a point made in an earlier debate that, fundamentally, it is our belief that we should not extend the Article 50 period and that this Bill is not the vehicle to raise questions of whose role it is to act on the international plane.

I finish by quoting directly from the Constitution Committee’s report on the Bill, which I know we all hold in high regard. It said that, on exit day:

“The revised definition of ‘exit day’ in the Bill sets appropriate limits on ministerial discretion and provides greater clarity as to the relationship between ‘exit day’ as it applies in domestic law and the date on which the UK will leave the European Union as a matter of international law. It also allows the Government a degree of flexibility to accommodate any change to the date on which EU treaties cease to apply to the UK”.


I realise that I may not have persuaded all of your Lordships of the Government’s position but I would at least hope that noble Lords will have some regard to the committee’s assessment of this issue. On that note, I hope the noble Baroness will agree not to press her amendment.

The noble Lord, Lord Newby, asked a pertinent question. He said that the Government have indicated in the draft agreement published recently that certain provisions apply, and he referred to a particular paragraph. I merely remind him that the Government have said before that nothing is agreed until everything is agreed, and the exit day power gives the Government the flexibility to reflect whatever is agreed in the final text of Article 168.

[Lord Newby]

I am grateful to the noble Baroness for that. I agree that nothing is agreed until everything is agreed, but that document states on the front of it that the Government have agreed the policy in it when it is marked as a yellow paragraph. Given that the Government have agreed that policy—there is no trick here—I want to work out what it means.

[Baroness Goldie]

It is a statement of very healthy and good intention. Nothing is agreed until everything is agreed, but it is certainly a signpost as to where we hope to go.