European Union (Withdrawal) (No. 5) Bill

Baroness Deech Excerpts

2nd reading (Hansard): House of Lords
Thursday 4th April 2019 Lords Chamber

[Baroness Deech (CB)]

My Lords, not only is the procedure relating to this Bill unacceptable and unconventional, but the Bill too has its faults. It is unnecessary because the Prime Minister has said that she will seek a delay, and this ties her hands. It makes us subservient to European Union timing. Clause 1(6) and (7) give any European Union extension priority over what we might want. According to the Bill, if some hypothetical date that the EU puts forward is accepted, there will be a Motion in the Commons taking the form of subsection (2). That subsection has dots where a date would be; it does not refer to subsection (3).

The other thing that puzzles me is the wording in Clause 1(2). It says,

“for the purposes of section 1 of the European Union (Withdrawal) Act 2019”.

I looked it up, and there is no such Act. After much puzzling, I decided that this was a reference to the Bill, but the Bill is called the European Union (Withdrawal) (No. 5) Bill, and presumably, if it becomes an Act, it will be the European Union (Withdrawal) (No. 5) Act. Therefore, I hope that that can be corrected, or maybe there is already a European Union (Withdrawal) Act 2019 that I am unaware of. I found that reference puzzling and I hope that the Minister will be able to clarify it or make sure that it is corrected.

I also wonder why this House would not be involved if such a Motion for an extension were passed. Why would only the Commons be involved? I think that subsections (6) and (7) of Clause 1 should be deleted. I do not see why any priority should be given to European Union timings. It should be for our Prime Minister to say that she has received a suggestion from the European Union about certain dates and that is what she wants. I do not see why the European Union should make that decision. I also wonder what European Union procedures there are to make those dates firm. We have already had extension dates bounced on us, and we have been told that they are part of an international treaty. I do not know whether we are part of that, how it came about or whether we ever agreed to it.

The root of the trouble, in retrospect, is the Miller case, where a random member of the public who could afford it brought a case to ensure that Parliament was involved in triggering Article 50. I was glad to hear that the noble Lord, Lord Pannick, has now found a good use for the royal prerogative and suggests that Mrs May be allowed to use that in questions relating to the date. However, it may be that in years to come the diminution of the royal prerogative by the Miller case comes to be regretted.

It is also the case that there are problems with Article 50. As I said on Twitter, this is:

“A clue to the source of Brexit trouble”,


and these are not my words but the words of Professor Collier, who wrote in the New Statesman a week or two ago:

“Article 50 was designed (by a clever British civil servant of yesteryear) so as to strip any country wanting to leave of all negotiating power”.


I hope that in years to come the defects in Article 50 will be recognised.

The reason why we are in this trouble is that from day one those who voted remain, or many of them, have done what they can to block an orderly exit. Indeed, Brexiteers in the other House were misguided in refusing to pass the withdrawal agreement—not that I hold any candle for it but I do not think there was anything better, and we would not be in the situation if they had voted for it. I can therefore conclude only that the overriding motive of those who are pushing this Bill is to avoid Brexit or to have a softer Brexit. The noble Lord, Lord Finkelstein, helpfully spelled it out in the Times a couple of days ago in an article that he said was addressed to the European authorities. This is what to do, he said to them in his article, if you want to stop Brexit: give Britain a delay. Give it more, more and more delay. Do not impose conditions, just delay and delay, and the whole thing will eventually dribble away in the sand. That is what the noble Lord said.

On the other hand, there is the question of no deal. There might be chaos, although we do not know, but two particular advantages of no deal have emerged recently. First, suddenly Mr Varadkar is talking about sensible ways to get around the Irish hard border issue. Suddenly he has come forward with what he says might be acceptable technical ways to do this—a miracle. Secondly, I think no deal would force the European Union to negotiate. It would jump-start it into negotiating, which is its duty under Article 50 and which it has neglected. All the EU has said is, “No, we will not reopen the withdrawal agreement”, and, “No, we will not change anything”. So one wonders really what the delay is for. If Europe will not reopen the withdrawal agreement, why are we delaying? It will say to us, “What’s your new plan for the future?”. Even if we were to say, which I hope we will not, “A customs union”, what guarantee is there that Europe would agree to it? Probably it will just say no to anything that we ask for so that the delay goes on and on. An extension as mandated in the Bill would not end the possibility of no deal, because if no deal happens because there is no deal then no deal is what we will get. So I do not see that there is any reason for the delay.

Lastly, on the notion of a second referendum and people changing their minds, I rather wonder whether remainers have changed their mind. What did they think they were voting for two or three years ago? Were they voting for what we see now across Europe? Were they voting for the collapse of French security? Were they voting for the high level of Belgian intelligence? Were they voting to see more fiscal indiscipline within Italy, higher unemployment in Greece and less philanthropy and sharing of burdens by Germany? Were they voting to see more authoritarianism in Hungary, less respect for the rule of law in Poland or increasing expenditure, sometimes unaccounted for, in Brussels? Were they voting to see a Europe that is unwilling to support NATO as it should? I hope that they will think again. Facts have indeed changed over the last two years, for the worse.

I hope the Minister will respond to my points about drafting and reply as to why we need the Bill at all.

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[Lord Goldsmith (Lab)]

My Lords, I am happy to support the Bill from these Benches, and I thank my noble friend Lord Rooker for bringing it to this House. I share the view that has been expressed that it would have been better if the Government had brought it, but we are where we are. I look forward to seeing it pass.

The purpose of the Bill was expressed quite shortly by my right honourable friend Yvette Cooper in the other place. I will quote what she said, which seems so right:

“The Bill simply provides for a simple, practical and transparent process to underpin the Prime Minister’s plan. It ensures that the extension has the support of the House of Commons, but also that we keep the parliamentary safeguard in place… She has recognised that she cannot implement anything in only nine days, which is why the extension is needed. This is a hugely important Bill”.—[Official Report, Commons, 3/4/19; col. 1135.]


I agree with that. It was described by the noble Lord, Lord Anderson of Ipswich, as a modest Bill. Modest it may be and, in certain respects, that is much to its credit, but it is an important Bill because of the issues that so many noble Lords have spoken about this evening. As the noble Lord, Lord Cormack, said:

“It was created in a vacuum, and the vacuum was created by a lack of leadership”,


because of uncertain times.

In listening to this debate, three points came across to me. The first was objection to the Bill from those who either view a no-deal Brexit with insouciance or actually welcome it. A number of noble Lords spoke in that way, such as the noble Lord, Lord Howard, who knows the high respect in which I hold him, the noble Lord, Lord Willoughby de Broke, and my noble friend Lord Howarth of Newport, for whom I also have great respect. I profoundly disagree with their view that a no-deal Brexit is not a great problem.

This evening we heard from the noble Lord, Lord Stern of Brentford, important evidence-based concerns about what a no-deal Brexit would do. Other noble Lords have spoken about that in detail, and I want to add the reference that has already been made, although belatedly, to what Sir Mark Sedwill has said about the risks. It is not, as the noble Lord, Lord Fairfax of Cameron, described it, “a little short-term inconvenience”. Those are the merits of the principal point that has been debated.

The noble Baroness, Lady Wheatcroft, rightly described the problem not so much as not trusting the Prime Minister, but not trusting the circumstances in which she finds herself and the people she finds around her. It is therefore an insurance policy. It may well be that, without this, the Prime Minister is able to achieve what she now wants, but it is important to have an insurance policy, as my noble friend Lord Liddle described it.

That took up most of the debate this evening. The second main point was the question of constitutionality. The noble Lord, Lord Norton of Louth, referred to that. I was privileged to sit on the Constitution Committee when he chaired it, so I always listen to what he says with great respect. The problem is that we are in, as my noble friend Lord Liddle said, perhaps the gravest crisis since the Second World War and exceptional circumstances require exceptional measures. They are exceptional in a number of respects, not just because of the gravity of the situation with which we are faced but because of the apparent lack of ability of the present Government to solve it. That has led to the other place taking the view that it must step in to help resolve the problem.

There is a need for the Bill. It is important that we respect the other place, which has sent it to us. We will be giving it scrutiny, and I am glad that we will now continue this debate in Committee next week, although I have something to say about the critical need to get it done on Monday.

I am also glad, as the noble Lord, Lord Cormack, said, that we have been able to have this Second Reading debate in a much better atmosphere than we had earlier in the day. It was an unpleasant afternoon for all of us. The comments made about Sir Oliver Letwin were uncalled for. He did not deserve them, given what he has been trying to do in the interests of the country, having been a loyal servant of the public. Although he did not come up so much in this debate, I also mention Dominic Grieve, who was my shadow when I was Attorney-General. A more honourable and honest man I do not know. I agree with the noble Lord, Lord Cormack, that it was a pleasure to see the noble Lord, Lord Spicer, back in his place.

A number of noble Lords, including the noble Lords, Lord Howell of Guildford and Lord Cormack, and the noble Baroness, Lady Noakes, referred to the importance of compromise. The Bill at least provides an opportunity for that to take place. Whether it happens is another matter.

I am very conscious that the House has been debating this, one way or another, for a number of hours, so I will wind up quite quickly. On the detail of the Bill, the noble Lord, Lord Pannick, raised the most important point about the royal prerogative. Following on what the Leader of the House said, the noble Earl, Lord Cathcart, raised the danger of the Prime Minister finding herself in a situation where something is offered which she would want to accept but which is not actually covered by the Motion that has been passed by the House. Does she have to come back? That ought to be looked at and, for our part, we will look at it before this matter comes back next week.

I want to underline, and end on, the importance of getting this done. Noble Lords will be aware, because they will all have read the Bill carefully, of the way it works. The day after Royal Assent is given, a Motion needs to be presented to the House of Commons—which it might or might not accept—setting out the time for the extension. That gives rise to two issues. One is that it is proposed by the Government—I would anticipate, by the Prime Minister—for the other place to consider. It is not the European Union setting out the timetable, but the Prime Minister must be given the date in time to pass it to the members of the European Council so that they can consider it before they meet on Wednesday. They will not thank anybody, I understand, if they are given it with very short notice. It is obviously an important decision for them and they will want to discuss it among themselves. That is why we must reach the position on Monday where we have dealt with all amendments in time for the other place to also deal with them that day and Royal Assent be given, so that the following day, Tuesday—only one day before the Council meeting—a decision can be reached on the timing.

A number of noble Lords have expressed happiness that we have been able to reach an agreement so that this does not go through the night tonight, but that was on the basis that we will conclude this on Monday—the Chief Whip talked about 8 pm. I hope all noble Lords will be able to co-operate on that. We have our work cut out, but not if we do it efficiently. At the end of the day it remains quite a straightforward and simple Bill, which we will be supporting.

[Baroness Deech]

The noble and learned Lord referred to this as the greatest crisis since the Second World War. Briefly, that brought to mind the famous case of Liversidge v Anderson, the facts of which I need not remind him of. There were emergency powers and the majority of the court held, “Yes, that’s all right, let’s lock this chap up”. The judgment we remember now, and it was famous even then, was the judgment of Lord Atkin, who said:

“In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace”.


We stick to the principles we have always had. His reference to Second World War reminded me of that: when you have an emergency—and I would not compare this with the Second World War—it is all the more important to use the proper constitutional principles.

[Lord Goldsmith]

I am grateful to the noble Baroness. I remember that case very well, of course, though I did not have the pleasure of being one of her constitutional class. Of course, what the House of Lords decided in that case was that it was not for individual Ministers to make decisions; that is what the case was about. It was about control of executive power: they were not to make determinations themselves. In this case, the Bill seeks to give primacy to the House of Commons to enable its decision, perhaps in the face of the wishes of the Executive, to be effected.

European Union (Withdrawal) (No. 5) Bill

Baroness Deech Excerpts

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

[Lord Goldsmith]

The noble Lord is quite right that that is a very important point. It was raised at Second Reading that the Government felt strongly, and I understand why, that the royal prerogative should not be subject to at least inadvertent erosion. Of course it has been eroded in certain respects over the years; we do not need to go into what they are but they include treaty making and waging war.

I take from the noble Lord’s point this observation: one great benefit of the amendment proposed by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, is that it makes clear that the royal prerogative is being maintained. I want to avoid seeing that apparently contradicted by other provisions in the Bill.

I have one other observation to make. I said a few moments ago that there were certain things that could happen: the European Council might accept the proposal or it might come up with another one. However, there is a risk that there might be no agreement at all; that needs to be considered. We have had discussions with the Government. I look to the noble and learned Lord, Lord Callanan—I am sorry, the noble Lord. He should be noble and learned as he has had to deal with so much of this Bill already; we will see if we can arrange that. I anticipate that he will give an assurance that, in the event that there is no agreement, the matter will be brought to the other place as soon as possible. Indeed, we expect it to be brought there this week, otherwise it might simply be too late.

When the noble Lord comes to respond on this amendment, I look forward to hearing what he says about that, and I hope he will give us sufficient assurance that if there is in fact a failure to agree at the European Council meeting then the matter will come back to the other place, which will therefore be able to debate what should happen next. It should do so on an amendable Motion so that it can put forward and support its view on what should take place. I do not know whether it would be for the convenience of the House if the noble Lord could tell us now what he will be able to say but, if not, I look forward to hearing what he says when he comes to respond to the debate.

[Baroness Deech (CB)]

My Lords, I tabled Amendment 6.

[Lord Pannick]

It is not grouped with this one.

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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?

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[Lord Hamilton of Epsom]

I agree, nobody knows. Let us hypothesise that she cannot go beyond that date. She goes to Brussels and says: “I would like to extend until the end of June”. Suppose that Brussels says: “No, we are frightfully sorry but we have agreed two dates with you already. One is in the context of no agreement and the other is in the context of the agreement being agreed by Parliament. We are not prepared to move from that”. I presume that the noble and learned Lord, Lord Goldsmith, will be answering on these amendments —I suspect the noble Lord, Lord Robertson, does not feel that responsible for this Bill, having taken it over from somebody else. What happens if the EU does not move from the two dates that it has already agreed, therefore still leaving us in the position where the Prime Minister will come back on Thursday and say, “I can get no agreement from the EU to change the dates it has already given us”? How in those circumstances will we not come out with no deal on Friday?

[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?

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[Baroness Ludford]

I have talked about the specific context. If we get to the end of this week, it would be absurd for us to be prevented from preventing no deal because of the need for an affirmative resolution. That is a very specific scenario which justifies the negative procedure in this case.

[Baroness Deech]

My Lords, a few days ago, the noble Baroness, Lady Hayter, while hurrying us along, said that she was prepared to sit right through the night and that breakfast would be provided. Our Easter Recess has been removed for the time being. I and, I am sure, all noble Lords are quite prepared to sit on Thursday, Friday, Saturday or whatever it takes.

[A noble Lord]

I am not.

[Baroness Deech]

It does not matter if some of us are not prepared to do so; some of us are.

Although I am not good at procedure, I hesitate to reject the report of the committee which contains Members who are luminaries in procedure and law. I cite my noble friend Lord Lisvane, the noble Lord, Lord Thomas of Gresford, and others. They must have met over the weekend and they have turned out this report. We cannot just dismiss it. What is our discomfort or the lack of a day or two’s break compared with the terrific constitutional and future issues at stake?