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?