Business of the House

Baroness Hayter of Kentish Town Excerpts

Thursday 4th April 2019 Lords Chamber

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[Baroness Hayter of Kentish Town]

Further to the resolution of the House of 28 January that Her Majesty’s Government should provide sufficient time for this House to ensure the timely passage of legislation necessary to implement any deal or proposition that has commanded the support of the majority of the House of Commons, that:

(1) Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with to allow the European Union (Withdrawal) (No. 5) Bill to be taken through all its stages this day; and

(2) Standing Order 39 (Order of Business) be dispensed with to enable that Bill to be considered after the motions on Economic Affairs Committee reports in the name of Lord Forsyth of Drumlean.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, unconventional times call for unconventional measures. What are these times? The country faces the possibility of an exit from the EU without a deal; a disorderly exit that nobody wants. The Prime Minister does not want it, business and the CBI do not want it, the TUC does not want it, the House of Commons does not want it, and your Lordships’ House voted against a no-deal exit by a majority of 169. But the eventuality remains a risk, as we are constantly reminded, because that is the default legal outcome unless something else happens. That legal default—a crash-out no deal—would mean no transition period, the immediate introduction of tariffs, complete uncertainty for British citizens living in the EU 27, no European arrest warrants, security concerns and dire consequences for industry, to say nothing of the implications for Gibraltar or the island of Ireland.

We have received a Bill from the House of Commons that makes something else happen, and we are about to give it a First Reading. It would ensure that there is a legal requirement on the Prime Minister to seek an extension to the Article 50 period to prevent that default legal outcome coming to pass. However, the Bill, passed by the elected House, can have effect only if we deal with it today, so that it can receive Royal Assent in time for the EU Council to consider the application for an extension. To fulfil our duty to deal with a Bill sent by the Commons, we have to handle it today.

This is in compliance with the view of your Lordships’ House on 28 January, when we called on Her Majesty’s Government to take all appropriate steps to ensure that sufficient time be provided for this House to ensure the timely passage of legislation necessary to implement any proposition that had commanded the support of the majority of the House of Commons. That Motion was passed with a majority of 152.

The Commons has passed this Bill. It has expressed a clear view that no deal is unacceptable and that the situation is urgent. Regrettably, the Government failed to honour that Motion published by your Lordships. They should have tabled the Motion I am about to move, to facilitate and expedite the will of the elected House. Today, the Government still will not listen to the Commons—or to this House, which has voted to facilitate any Bill from the Commons. That is not leadership. The Government have lost the support of the Commons, and now refuse to follow your Lordships’ Motion.

[Lord Strathclyde (Con)]

My Lords—

[Noble Lords]

Sit down!

[Baroness Hayter of Kentish Town]

I believe the conventions of the House, to which the noble Lord used to adhere, mean that it is my decision whether to give way. I have decided not to.

We, rather than the Government, had to table this Motion, which would allow us to take all stages of the Bill today and add it to today’s agenda. However, it is not just the Government who are failing to respond to the decision of the elected House. We see on the Order Paper seven amendments to my Motion—all, it must be said, from Peers who have been very open and honest about their desire for, or at least their acceptance of, a no-deal departure. However, rather than just voting against my Motion, which is the correct way to halt proceedings if they have support across the House, they have chosen to try to delay the Bill so long that it can have no effect, and so thwart the decision of the elected House.

Some of those Peers have even, at the very last moment, found themselves in absolute need to speak on a really interesting Motion in the name of the noble Lord, Lord Forsyth, on the report Making Tax Digital for VAT: Treating Small Businesses Fairly—the very small businesses, presumably, that wrote to me saying, “Whatever we want, it is not no deal”. But just before 6 pm last night, once they knew this Motion would be here today, they found themselves suddenly seized of the need to add their names to the speakers’ list. I have a list of those who added their names at the very last moment.

What we are seeing today, in addition to those seven amendments and to more people wanting to speak later to put off the Bill, is a small group of unelected Peers in an unelected House trying first to stop us considering the Bill today, and then trying to talk it out. No doubt they are seeking to go through the night to halt the Commons’ desire to prevent no deal. They cannot win this by the strength of their arguments or through support, but only by those tactics.

I and my friends will be here all night. I have discovered that breakfast starts at 7.30 am, and am taking orders now. If that is what it takes to do what the elected House of Commons has asked us, that is what we will do. For the moment, I urge the House to respond to the cross-party Bill which has arrived here, having been passed with urgency in another place, and, in this time of national uncertainty, do what we are appointed here to do—to consider in a timely fashion any legislation sent to us. We should agree to pass it in time for it to have an effect. I beg to move.

--- Later in debate ---

[Lord Strathclyde]

My Lords, the noble Lord, Lord Empey, has spoken with a good deal of sense. My understanding is that the usual channels had formally agreed to finish this Bill on Monday, and that that arrangement was withdrawn yesterday. The noble Baroness is shaking her head. I have 19 years’ experience of dealing with process and procedure in this House. One abiding rule is that once you do not involve the usual channels, it all goes wrong. That is exactly what has happened today.

I know the noble Baroness is about to speak. Can she explain why it is so urgent that we sit virtually all night to pass this Bill? We could do what all the precedents set have done, and have the Second Reading today and finish the remaining stages at the beginning of next week, asking the usual channels—the noble Lord, Lord McAvoy, and my noble friend the Government Chief Whip—to organise it. That would get rid of the nastiness that the noble Lord, Lord Empey, referred to. It would make for a far more rational debate, and the Bill would be completed—I recognise there is a majority for the Bill in this House—in plenty of time for whatever else happens next week.

[Baroness Hayter of Kentish Town]

My Lords, we are actually dealing with the amendment on whether we should have a committee report. I draw the attention of the House to the speech Mr Steve Baker gave late last night in the Commons. I do not know why I should pick on him at this particular moment—

[Lord Newby]

He is here.

[Baroness Hayter of Kentish Town]

Oh! I had not noticed. Mr Baker was looking forward to the Bill coming to your Lordships’ House, in the,

“fervent hope that their Lordships will examine this Bill line by line”,—[Official Report, Commons, 3/4/19; col. 1217.]

and give it good attention. The hope was that we would get on and deal with the Bill, and that is what this Motion is about.

However, I speak now to only the amendment in the name of the noble Lord, Lord True. He asked me why I did not take an intervention from the noble Lord, Lord Strathclyde. I was moving a Motion: normally, you move a Motion, then people stand up and ask questions and points of order, and at the end one comes back with the clarification. That seems to be the correct way to do it.

On the particular issue of whether we should have a committee, we have a committee report on this Bill. Even if we did not, the point of committees is to assist this House, not to stand in the way when something needs doing. Their members are also Members of this House, and can therefore give their very wise—and often learned, in the case of the Constitution Committee —advice directly to the House. We can do it then.

The important thing I want to raise, because I was not able to on the last amendment, is the idea of how awful it was that we were moving this, rather than the Government. As I said at the beginning, it should have been the Government who brought the Bill to the House, because that was what the House had passed before. We are doing it because that was not done. The noble Baroness the Leader of the House said that it is normally the Government who table Private Members’ Bills. Yes, but they failed to do so. We will do it when they do not. The Leader of the House is obviously in a difficult position—

[Lord Robathan]

My Lords—

[Baroness Hayter of Kentish Town]

I think I will continue, if the noble Lord does not mind.

[Lord Robathan]

Again?

[Baroness Hayter of Kentish Town]

Yes, again.

[Lord Robathan]

I have a point of clarification.

[Baroness Hayter of Kentish Town]

I am sure the noble Lord does, but I would like to answer the point that the noble Baroness the Leader of the House made some time ago, which I have not been able to answer. She is in a difficult position; I understand that. She is a member of the Cabinet and of the governing party, but she is also the Leader of the House. In the absence of a Speaker with authority—although we do have a very authoritative Speaker—she also has to consider the whole House’s interests. It would have been her responsibility in that role to have brought forward this Bill as it was voted for before.

We have talked about a “constitutional monstrosity”, “tearing up the constitution” and “constitutional vandalism”. We are asking that this House considers a Bill sent to us by the other House. Is that “constitutional vandalism”? As the noble Lord, Lord Newby, said, this country faces a national crisis. The people in the Gallery—I am sorry that there are some there, because I am quite embarrassed that they are watching us—must wonder what on earth is happening when, at a time of national crisis, we are debating not the content of the Bill or the issues that have been raised by some speakers, but whether we should even consider the Bill today. This is out of order. In fact, I think it is shameful that this is being done. I find it shameful that the Government are helping on this.

[Lord Forsyth of Drumlean]

My Lords—

[Baroness Hayter of Kentish Town]

I think the noble Lord has spoken quite enough. We have heard from him; I think we know his views. We should not still be debating the content of the Bill, because we have not got on to it. We want a Second Reading. We can vote against the Bill if we do not like it; that is the democratic way of dealing with a Bill that you do not like. But to try to talk out the ability of us even to take the Bill is an abuse of process. I will not support the amendment to my Motion in the name of the noble Lord, Lord True.

[Lord Robathan]

Since the noble Baroness does not like taking interventions, I will have to make a speech. It will be a very brief one.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

My Lords—

[Lord Lilley]

My Lords—

[Baroness Hayter of Kentish Town]

My Lords, we have had two speakers in favour of the amendment. I repeat two things I have said before. One is that the best advice is that we should all have a cup of tea. I second that one. The other is that, as I said at the beginning, if Members are against the Motion I tabled that we should hear the Bill today, the correct course is to vote against my Motion. Tabling a series of amendments where every speech has been against my Motion, rather than in favour of the different amendments, just shows that if this is not a filibuster, it is a technique to spin this out. I have great respect for the noble and learned Lord, Lord Brown, who said that it was incorrect of certain people to move the closure Motion. That is partly because the device of having umpteen different amendments was a way of arguing against my Motion rather than the amendments being correct and useful for the sake of the House.

Various people may have moved the closure Motions, but I remind the House—the House does not need reminding because Members were all here—that every one passed by the will of your Lordships’ House, not by that of those who moved the amendments. If noble Lords did not want the closure, they would have voted against it. In fact, the Motions were all passed by 2:1.

On the previous amendment, we heard about the tyranny of the elected House and that we have a despotic majority, all because we want the Bill heard in this House in a timely manner. It is surely best for this House that we do not continue with lots of speeches about all the amendments that are actually only about my Motion. It would be very nice if we could get to my Motion, so that those who really object to what we are trying to do, which is to get the Bill heard in this House, can vote against it. Let us see what is the will of your Lordships. For the moment, I suggest, without moving it formally, that we move to the vote on this amendment, and I urge the House to decline to agree it.

[Lord Lilley]

My Lords, I respectfully follow the noble Baroness, Lady Hayter. The simple truth is that almost everyone who has spoken, with the exception of her, has said that this is purely about constitutional aspects and not about Brexit. I agree with her that it is about both. I am a new boy, so I shall deal briefly with the constitutional aspects of this procedure. As a new boy, I knew one thing about this House: it has the power to make the other House think again. I have enormous respect for that power, and it is a power exercised only after due consideration.

As Secretary of State for Social Security for five years, I used to introduce a lot of legislation. Almost invariably, it would get through the lower House with very little amendment or change. It would come to this House and the next day, my officials would come to me to say, “Very sorry, Secretary of State, the Lords have gone and amended your legislation”. Initially, I tended to be shocked, horrified and angry, until I looked at the changes which this House had made. I cannot recall a single occasion when I did not, on inspecting those changes, accept them either in whole or in part, in spirit or in letter. This House does a good job in making that House think again, but it can do that only if it takes time to consider things and brings all the available expertise it can provide itself and acquire from outside.

It seems that the one reason we should not take this all in one day—the reason we have not taken Bills all in one day in the past—is that, by taking it over two or three days, we give time for outside experts to make representations to us. I know this House brings to bear enormous expertise, but it also has enormous contacts outside, which it draws on in that interlude between Second Reading and Committee and between Committee and Report. If we deny ourselves those interludes, we deny ourselves access to that expertise and the ability to make the high-quality changes, reforms and suggestions to the other House to make it think again, which I certainly found enormously valuable when I was down there. That is the central issue that I hope the noble Baroness, Lady Hayter, as acting Prime Minister for the day, will respond to in due course.

By way of exculpation, I will also explain why I endeavoured to raise a point of order with our Lord Speaker. I was referring to paragraph 29 of the Standing Orders of this House, which says:

“No speaking after Question put … When at the end of a debate the Question has been put, no Lord is to speak save on a point of order”.


I have since discussed it with the clerks and the Lord Speaker, and they are inclined to think that that needs rectifying, since elsewhere it says that no points of order are allowed. Perhaps in ancient times, when this was first written, “point of order” had a different meaning. I have not been here long enough—I was certainly not here in 1674, when this rule was first adumbrated—to know why. Of course, the whole rule that there should be no debate after a Question has been put was adumbrated back in 1674, so it may be that in rectifying this we will find that there can be a little debate, discussion or explanation as to why a noble Lord should want to truncate and prevent debate in this House, the whole purpose of which is debate. I put that forward to explain that I was not endeavouring to be out of order but to follow the rules of the House, as they had been drawn to my attention.

But this is not about just constitutional issues; it is about Brexit itself, as the noble Baroness, Lady Hayter, pointed out. She said that the only justification for doing what we are doing—for not abiding by our normal procedures, allowing proper discussion or allowing expertise from outside to be drawn into it—was that prolonging it increases the risk that we leave in what she calls a no-deal Brexit: on WTO terms, with all the mini-deals that have been agreed between us and the EU. She considers that a disaster. I consider that a far greater disaster would be to set aside the will of the people, as solemnly requested in a referendum, with a promise repeated by all the leaders of all the parties and all our former Prime Ministers that, whatever the decision, they would implement it.

[Lord Lilley]

I entirely agree. It is quite reasonable to have a referendum every 45 years, which is the time we had to wait before this second referendum. People’s opinions change over time. Back in 1975, I campaigned for us to remain in the EU. I was young and inexperienced. I was recruited for the campaign to keep Britain in Europe by a particularly beautiful girl, who is now my wife, so I plead that one’s opinions can change—as hers and mine have—with experience. We all have more experience now than we had three years ago of the sort of organisation we are dealing with in the European Union. As the noble Lord, Lord King of Lothbury, the former Governor of the Bank of England, has said, that is what we should be thinking about far more than the niceties of a withdrawal agreement.

One thing is certain. During the referendum campaign no one asked, “Would you like to vote to ask permission to leave?” That is like a primary school child putting up their hand in the classroom and saying, “Please, miss, may I leave the European Union?” That is a nonsense. We voted to leave. The Prime Minister of the day said that if we left, we would leave on WTO terms. I want to argue that that is not too frightening. On the contrary, although it is not the best thing—

[Baroness Hayter of Kentish Town]

Is the noble Lord addressing himself to the words of the amendment?

[Lord Lilley]

I am—just as she did. Initially she said that she was addressing all the amendments with the argument that if we did not leave now, there would be a problem. I am arguing that if we—

[Baroness Hayter of Kentish Town]

I said that we should deal with this Bill in time for it to have effect. That was the point I made—that if we did not deal with the Bill before we ran out of time, there was no point in having it. I did not go into the issue of Brexit.

[Lord Lilley]

On the contrary, the noble Baroness is rather forgetful, because I noted down the five points she made about what would happen if we did leave with no deal. They were about citizens’ rights, tariffs and industry; I have forgotten the other two.

--- Later in debate ---

[Lord Hunt of Wirral (Con)]

My Lords, I declare my interest as a member of the Constitution Committee. I would like to make a brief intervention. Thanks to the sterling efforts of the committee, our learned clerk and our legal adviser, Professor Mark Elliott, overnight we were able to produce a brief report, which I want to refer to, because it is mentioned in this amendment.

The report was very much a rushed attempt. In the early hours of this morning I sought to rewrite parts of it, but the clerk explained to me that, sadly, my rewriting had been blocked by the spam filter on his machine. Therefore, I thought I better just add a couple of words to explain. The Constitution Committee has always sought to advise the House on fast-track legislation. Indeed, there are one or two Members of the House who served on the committee when it produced the 15th report in the 2008-09 session, Fast-track Legislation: Constitutional Implications and Safeguards. I would like to see a little more reference during the course of this debate to the fact that we warned people that fast-tracking should take place only in exceptional circumstances. It behoves everyone in this place to demonstrate that these are exceptional circumstances.

We also sought to emphasise the need for effective parliamentary scrutiny. We set this out in our report. However, as a member of the Select Committee, I would have preferred far more time to get into more detail. I therefore refer the House to a brilliant analysis of this Bill by Professor Mark Elliott, Public Law for Everyone. Before we proceed any further, we should be aware that this is, in a number of respects, a defective Bill, and we have to be very careful how we proceed.

It was acknowledged in the other place by Oliver Letwin—the previous acting Prime Minister, before the noble Baroness, Lady Hayter, took on the role—that there were drafting difficulties. He explained that it did not really matter very much because these would be dealt with and considered,

“in the Lords stages of the Bill”—[Official Report, Commons, 3/4/19; col. 1064]

Therefore, we must ensure that we have enough time to look into those defects. Trying to take all the stages of this Bill in one day, which is what the noble Baroness would have us do, may lead to us enacting defective legislation.

I am very grateful to the Printed Paper Office for making available our report, Fast-track Legislation: Constitutional Implications and Safeguards. I hope noble Lords will look at it before we proceed very much further with the Bill. It is necessary reading if we are to undertake this unusual attempt to fast-track a Private Member’s Bill.

We identified a key constitutional principle, as set out on page 8:

“The need to ensure that effective parliamentary scrutiny is maintained in all situations. Can effective scrutiny still be undertaken when the progress of bills is fast-tracked, even to the extent of taking multiple stages in one day?”


We went on to say that another fundamental constitutional principle was:

“The need to maintain ‘good law’—i.e. to ensure that the technical quality of all legislation is maintained and improved”.


We then asked:

“Is there any evidence that the fast-tracking of legislation has led to ‘bad law’”?


We as a House have to ensure that we do not enact bad law as a result of fast-tracking. That is all I wanted to say.

As I explained in a previous debate, I object to the idea that there should be a second referendum when it was the second referendum that created this problem in the first place. I do not want to stray too much, but I was the chairman of the Conservative Group for Europe in 1975, and I fought hard in the first referendum and fought hard again in the second referendum. I say to every Member of the House, whatever their strong feelings on this issue, for heaven’s sake, please do not let us have a third referendum. Let us get this sorted out. Let us respect the result of the second referendum but make sure that we do so by passing good legislation.

[Baroness Hayter of Kentish Town]

I think it was in about 1975 that the noble Lord, Lord Hunt, and I first met, which just shows how long we have both been around.

[Lord Kinnock (Lab)]

And you haven’t changed a bit.

[Baroness Hayter of Kentish Town]

It’s the way he tells them.

Two interesting and different things have just been said by the noble Lord, Lord Hamilton, who very honestly confessed that he hoped the Bill would never reach the statute book—let us be clear; that is what all this is about—as opposed to the noble Lord, Lord Hunt, who says, “I want it done properly”. To some extent, the noble Lord, Lord Hamilton, may achieve his aim without having to put his amendment to the vote. His amendment says only that we should not go into Committee,

“until at least 24 hours after”,

the Select Committee on the Constitution has published its report. That was done at 11 am today. Given the way we are going, I think we are going to meet his target: it will be 11 am tomorrow before we go into Committee, so he may have achieved that without having to put it to the vote.

What we know is that no matter how much we want, ideally, to have time to do this legislation properly—in the “as normal” sense—we are not in normal times. It is simply no good putting this off so that by the time we get through it, and have had very clever people getting it right, it is too late. I hear what the noble Lord, Lord Hunt, says about there being things in the Bill that we may want to alter but spending time now on whether we consider the Bill, and how we deal with it and the need for corrections, makes it less likely that the Bill will end up in a proper state. Without having to do so officially, I hope that we can move to vote now on the amendment from the noble Lord, Lord Hamilton. I think we can reject it because it actually will be 11 am before we get into Committee.

[Lord Foulkes of Cumnock]

My Lords, I beg to move that the Question be now put.

--- Later in debate ---

[Lord Forsyth of Drumlean]

My Lords, I appreciate that the hour is late and the House is anxious to get on with Second Reading. This is the first and, I suspect, the last time that I shall say, “God bless the usual channels”. I think that this is a sensible arrangement in the circumstances, since the debates on my committee reports would certainly run to two hours; with apologies to those who put their names down to speak in them, the Chief Whip, in a moment of weakness, promised me a decent slot as a replacement in the future. I therefore withdraw my Motions so that we will have time for Second Reading.

[Baroness Hayter of Kentish Town]

My Lords, I thank the noble Lord, Lord Blencathra, and my noble friend Lady Taylor for their reports. We may feel that we have worked hard in this Chamber today, but a lot of work went into those and into making them available to the House. I also thank the 250 Members of this House who have, again and again, turned up to support this Bill and give it what we should give it, which is a Second Reading. Also, for reasons that a lot of people behind me will know, I record particular thanks to my noble friend Lady Smith, who is here today and has just voted for us. We can explain that to others afterwards, but it is particularly good that she is here today. With that, I beg to move my Motion.

[Lord Foulkes of Cumnock]

My Lords, in the Statement that the Chief Whip just made, he said that he expects subsequent stages to be concluded on Monday. Given the proceedings we have seen all day today, is he giving a guarantee on behalf of the Government that they will be concluded on Monday?

[Lord True]

My Lords, if I intervene perhaps I might help the noble Lord, Lord Foulkes. My interventions in this debate, as they were last week, were simply on procedural grounds. I hope that the noble Baroness will withdraw her Motion so that we do not have a precedent for such a Motion on the Order Paper. We have an agreement in the usual channels. We have an undertaking that we will complete Second Reading today and all other stages on Monday. I can speak only for myself, but I welcome the agreement in the usual channels. It is how we should have proceeded from the start. I will not table any amendments on the Order Paper for Committee or Report, in the spirit of co-operation that there is in the House. I ask the noble Baroness to consider, in these circumstances, whether she should not withdraw her Motion so as not to create the precedent of a Motion being forced, because I would feel obliged to divide the House on principle against it. I thank the usual channels and those wise heads on all sides of this House who have come to this agreement. Let us get on with Second Reading and, as we have just heard, consider the Bill properly on Monday. Everybody will want to get this Bill considered with dispatch. Looking around the House, I do not see any noble Lord dissenting from that. So I ask the noble Baroness to withdraw the Motion.

[Baroness Hayter of Kentish Town]

I think the noble Lord was trying to be helpful. Unfortunately, without my Motion we would remain unable to deal with more than one stage; we would have to use the normal intervals between them. Therefore I am afraid that we do need my amendment to the Standing Orders to do that. Therefore I wish this Motion to be put to the House.

[Lord Foulkes of Cumnock]

My Lords, Back-Benchers have a right to speak as well on this matter. I have sat through every minute of today’s debate and have seen the filibustering tactics of some of the Members opposite. The Government Chief Whip said that he expects the subsequent stages of the Bill to be concluded on Monday. As he knows, they have to be concluded by a certain time. Is he giving a guarantee that they will be concluded by that time? Otherwise, we will be double-crossed again.