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

Baroness Hayter of Kentish Town Excerpts

Wednesday 27th March 2019 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

At the end insert “but this House, whilst recognising the necessity of the Regulations, regrets the manner in which Her Majesty’s Government have conducted withdrawal negotiations with the European Union which has resulted in widespread uncertainty as to when the United Kingdom will leave and about the status of European Union citizens, as well as undermining business confidence; and calls on Her Majesty’s Government to pursue without hesitation any course of action in relation to those negotiations which is approved by a resolution of the House of Commons.”

[Baroness Hayter of Kentish Town (Lab)]

My Lords, Members of this and the other House have spoken of their shame or embarrassment about how the Prime Minister and the negotiators she appointed, Messieurs Davis, Raab and Barclay, have handled our dealings with the EU. Today’s statutory instrument is a manifestation of their failure. The Prime Minister has failed to unite her Cabinet, her Government, her party or the Commons, let alone the country. It starts with red lines and a failure to reach out to the 48%. It ends with a lonely, tax-funded, failed plea to the public and the humiliation of eating hundreds of her words. Those words, “We are leaving on 28 March”, have been repeated endlessly by Mrs May and here by the noble Lord, Lord Callanan, for whom some of us —almost—feel sorry, for having to digest the words he parroted so many times.

The noble Lord’s embarrassment, which he carries with a good grace, is as nothing to the uncertainty now facing our ports, businesses, holidaymakers, citizens living across the EU, farmers, importers, manufacturers, traders and hospitals, and EU citizens here. Today, they see us changing our law, not simply to remove Friday’s date from the statute book but to insert two new dates. It still is not clear when we are due to leave the EU. It is almost beyond parody. I now wonder what phrase the Minister will use to replace the old mantra. Will it be, “We will leave on a date yet to be confirmed,” or “We will leave, don’t know when, don’t know how”? Perhaps we will meet again some sunny day.

Today’s change via this SI is, of course, necessary, but it would have been unnecessary had the Government heeded the advice of your Lordships’ House. In May last year, the amendment proposed and so convincingly argued by the noble Duke, the Duke of Wellington, replaced 29 March with the words,

“such day as a Minister of the Crown may by regulations appoint”.

My colleagues behind me have begged me not to use the words “I told you so” today, but I cannot resist. In May, I warned the Minister that,

“the negotiations … will be affected by the timetable”,

and that, given that,

“the negotiations could go on a bit later than everyone wants”,

having a particular date fixed in an Act of Parliament, passed in mid-2018, would be,

“a very unhelpful position for our negotiators to be in”.

I predicted—I promise these are my words in Hansard—that,

“the withdrawal agreement could contain a leaving date of a week or two … after the two-year period, which would allow the last-minute arrangements to be made”,

and continued,

“if that suits all the parties and if our Government would like to sign up to it, it would seem silly not to be able to do that”,—[Official Report, 8/5/18; cols. 37-38.]

without amending the Act.

Of course, it was not just me. Our own EU Committee said:

“The rigidity of the … deadline of 29 March 2019 … makes a no deal outcome more likely … enshrining the same deadline in domestic law would not … be in the national interest”.


Your Lordships agreed. By 311 votes to 233, we passed the amendment tabled by the noble Duke, the Duke of Wellington, by a tidy majority of 78. We are here today because the Government did not listen.

Unfortunately, we now face the same again, which is why the last part of our amendment calls on the Government to pursue any course of action in those negotiations sanctioned by a resolution of the Commons. We stress this because Ministers and Mrs May keep telling us that they will not be bound by today’s votes in the elected House, which might be a bit of a problem for them anyway, if Robert Peston is correct. He reports that the Cabinet Secretary and the Attorney-General informed Cabinet that if, at the end of the Letwin process, MPs passed a Motion mandating the Prime Minister to pursue a new route through the Brexit mess, whether a referendum, a customs union or another option, then the Prime Minister and the Government would be in breach of the Ministerial Code and the law if they failed to follow MPs’ instructions. The impression created by the Prime Minister that she could ignore the results of the indicative vote process is not true if those Ministers who briefed out of the Cabinet are to be believed. Perhaps it is because those briefings are right that the Government down the other end have just tried, shamefully, to end the indicative vote process, although they lost that vote. It is that reluctance to heed the views of MPs that makes the last part of our amendment so important, even if, as I said, it might be unnecessary should the law indeed require the Government to follow the outcome.

[Lord Pannick (CB)]

Could the noble Baroness say what law is applicable here? I understand the political argument, but what law would compel the Prime Minister to comply with the House of Commons’ view?

[Baroness Hayter of Kentish Town]

Indeed, I am as questioning on that. That apparently, from very good leaks, was what the Attorney-General said to the Cabinet. Unfortunately, I do not have access to it. It may not be the case, but that is what was being briefed—I do not think that the Attorney-General will be speaking utter nonsense, which is what I think I heard from the other side of the House. It is what Robert Peston says.

[Noble Lords]

Oh!

[Baroness Hayter of Kentish Town]

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

[Lord Forsyth of Drumlean]

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

[Baroness Hayter of Kentish Town]

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

[Lord Cormack (Con)]

Is not the lesson that the Cabinet should cease to talk about Cabinet meetings to anybody outside of Cabinet?

[Baroness Hayter of Kentish Town]

I certainly share that view, although just occasionally it is very useful. The real point is, of course, the political one: the Government briefing that they will not go along with the MPs’ choices and then, just now, trying to defeat the Business Motion so that the indicative votes do not have to take place seems to suggest they do not want to heed what elected Members say. It is for that reason that the last part of the amendment has become more significant than when we originally drafted it.

I hope the House will support the amendment and regret the shambles that got us here from not listening to the noble Duke, therefore causing some of this uncertainty for business and citizens. Of course, we agree that the instrument is necessary to ensure we have clarity on our statute book. As the Law Society of Scotland says, it is,

“essential to ensure consistency in the operation of UK law with that of EU law”.

Without it,

“there would be great uncertainty and confusion in the operation of UK law”.

We agree with the instrument, but we do not agree with the method that got us here. I beg to move.

--- Later in debate ---

I notice that the first Motion selected for voting this evening in the House of Commons is that of the honourable Member John Baron, to leave the European Union without a deal on 12 April. I wonder whether we are supposed to embrace that in the event that it passes the Commons. I wonder where this is supposed to be going. Clearly, no Executive can simply accept such indicative votes not knowing what their consequences will be. We have a responsibility as a Government and as a Parliament to ensure that we take those steps that we consider to be in the public interest at the end of the day. The noble Baroness wishes to intervene.

[Baroness Hayter of Kentish Town]

I just wondered whether the noble and learned Lord was speaking on behalf of the Government, who were threatening that we should be leaving the day after tomorrow with no deal.

[Lord Keen of Elie]

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

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

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

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

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

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

[Lord Keen of Elie]

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

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

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

[Baroness Hayter of Kentish Town]

That is not fair. How can I follow that? I will say two things to the noble and learned Lord, Lord Keen. He mentioned Robert Peston; of course, when I first came here, his father Lord Peston was sitting behind me. I think he would have enjoyed today’s proceedings, maybe for all the wrong reasons.

I should also say to the noble and learned Lord that using the example of the Baron amendment, which called for a no-deal exit, does not come across well from a Government who have been threatening that we would leave with no deal the day after tomorrow. New paragraph (b) in Regulation 2(2) of the statutory instrument still says that we could leave without a deal at 11 pm on 12 April. That was probably the wrong example to use.

We had some interesting interventions on my amendment from the noble Duke, the Duke of Wellington, and the noble Baroness, Lady Ludford, who reminded us that this was an ideological choice at the beginning. The noble Lord, Lord Hannay, reminded us about the cost of all this, as did the noble Lords, Lord Hamilton and Lord Robathan. From the feed coming through, I understand that the Prime Minister’s resignation will be dependent on getting the deal through, in which case the Conservative Party leadership contest will start on 22 May. I am already hearing about all sorts of cabals going on, but that is not for us.

There were interventions on the SI itself, rather than my amendment, from the noble Lords, Lord Forsyth, Lord Pannick, Lord Warner and Lord Cormack, the noble Viscounts, Lord Ridley and Lord Waverley, and my noble friend Lord Adonis. The noble Lord, Lord Framlingham, also spoke. He told us that he is normally an optimist, but is now nearing despair. In an earlier debate—I think it was when we were doing the Bill—we had Hope, Pannick and Judge. As the hope is rather fading, we are closer to the panic than we were at that stage.

I think my amendment has provided an opportunity for the House to express its concern about the chaotic way we got here and where the blame lies. Even if there was not complete agreement on the last bit of the amendment, I think it served its purpose in allowing the House to express its views, without having to divide. I beg leave to withdraw the amendment.

Amendment to the Motion withdrawn.