European Union (Withdrawal) Bill

Duke of Wellington Excerpts

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

[Lord Hannay of Chiswick]

My Lords, I support this amendment, which is in my name, too, and also Amendment 343, which contains more of the same objective. The purpose of the amendment, as the noble Baroness, Lady Hayter, has said, is to remove from the Bill the date of 29 March 2019 for its entry into force. Putting that date in the Bill is neither necessary nor desirable—and that, clearly, was the view of the Government when they tabled the Bill because, as the noble Baroness said, there was no mention of that date in the Bill at all when it was tabled last April. It was subsequently inserted—for reasons that I shall not dwell on, because I do not particularly want to speculate about dealings within the Government’s party; they were clearly something to do with that—only at a later stage, at which point there was a lot of rejoicing from those who believe that leaving the European Union at any cost is a good and noble objective. The formulation was then watered down a bit by the House of Commons before it sent it to us—but I suggest that it should be removed altogether.

The Government have basically dealt with the issue of whether the date is necessary. It is perfectly clear that it is not necessary, otherwise why did they table a Bill without it? But is it desirable? On desirability, I would argue strongly against it, as has the noble Baroness, Lady Hayter. For one thing, it risks closing off one option that exists under Article 50 and will exist all the way through to 29 March: namely, that the EU 27 and the UK might, by common accord, wish to prolong the two-year cut-off date from the time of notification of our intention to withdraw. I do not intend to speculate under what circumstances such a wish might arise, because they are manifold. It could be for a very short period of a purely technical kind due to an absence of time to conclude all the work that needed to be done, or it could be for a longer period, which would obviously have rather more important implications. The Brexit committee in the other House has raised that possibility; it has canvassed it and I do not think that it is wise for us to put in this Bill something that contradicts it.

The point at issue is not whether such a postponement of the two-year deadline might or might not be in the national interest. We will only know that when the debate on it takes place. I argue that to foreclose the option now, so as to make it difficult—probably impossible—to proceed in that way is not sensible; rather, it is irresponsible. I have no doubt that the Minister will tell us that the Government have no intention whatever of making use of the postponement option. Her script can be easily imagined—and it is of course the Government’s entire right and privilege to say that. However, that is different from trying to bind Parliament to say it, which is what they are seeking to do with this provision: to lock us all into the Brexit tower and throw the key out of the window. That is never usually a very good way of proceeding.

So I hope that, on further consideration, the Government will agree. All they are being asked to do is revert to the original form of the Bill which they themselves introduced last July and to have no reference in it to the date of 29 March.

[The Duke of Wellington (Con)]

I support Amendment 334, a cross-party amendment to which I have added my name, and which goes with Amendment 343. As other noble Lords have said, it is a modest amendment which simply restores the original wording of the Bill. As has also been said, here and in the other place, the Bill is about process not outcome. The amendment makes no attempt to delay the date on which we leave the EU. I believe that we will be told by the Government that one justification for putting the date in the Bill is to remove uncertainty. There are many uncertainties ahead of us, post Brexit, but there is surely no uncertainty about the date on which we leave the EU. It is clear that, under Article 50, we leave the EU on 29 March 2019 unless it seems at the time to be in the national interest for the Government to request a limited extension or delay in order to complete the process of withdrawing.

It could be that the withdrawal and implementation Bill has not yet passed through both Houses of Parliament. The European Parliament may not yet have passed it. There could still be matters to negotiate. There could be various reasons, but the point is that it could be in the national interest, at the time, to seek a delay. I am sure that a small delay would be granted by the other 27 member states if we were near the end of the process. I am aware that an amendment tabled in another place by Sir Oliver Letwin gave Ministers the power to change the exit date. However, I believe it is right—this is the fundamental point of the amendment—for this House to ask the other place to think again about the necessity of putting the date in the Bill. Is that necessary? Is it expedient? This amendment and the related amendments are intended to give the Government, and Parliament, greater flexibility. I hope the Government will accepted them in the spirit in which they are intended.

[Lord Adonis]

My Lords, the noble Baroness needs to be very cautious about taking on the noble Duke, of Wellington in a debate. I hope that she will be able to agree with her ducal colleague. There are two key points here: one is fundamental, the other pragmatic. The noble Duke made the pragmatic one, which is compelling. There could be reasons, perhaps to do with the final ratification processes, why it is in the public interest to delay and we should not put obstacles in the path of that. There is also a reason of fundamental constitutional principle why we should not agree to this. We are being asked to agree to a date for leaving the European Union, and to put it in statute, before we know what we will be doing after we leave. Until we have the withdrawal treaty, we will not be aware of what the terms of withdrawal are—

European Union (Withdrawal) Bill

Duke of Wellington Excerpts

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

Moved by

[The Duke of Wellington]

95: Clause 14, page 10, line 40, leave out from “means” to end of line 41 and insert “such day as a Minister of the Crown may by regulations appoint (and see subsection (2));”

[The Duke of Wellington (Con)]

My Lords, this amendment, which I have proposed with the noble Lord, Lord Hannay, the noble Baroness, Lady Hayter, and the noble Lord, Lord Newby, is not the most significant of the various cross-party amendments which this House has passed in recent weeks, but it is nevertheless important. We propose that the wording of the Bill simply reverts to the original drafting. During the debate in Committee on this point, there was near unanimity that the date should be taken out of the Bill.

We have so often been told by Ministers in this House that a certain amendment was unnecessary. Well, it was certainly unnecessary for the Government to amend their Bill during its passage in the other place to fix the date. Article 50 clearly states:

“The Treaties shall cease to apply … two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”.


So we know beyond any doubt that for the purposes of this Bill, we leave the EU on 29 March 2019, but this date should not be defined and specified in the Bill, in case it becomes necessary and in the national interest to agree an extension, as provided in Article 50. Any extension sought by the Government could be limited to only a few weeks, as the European Parliament elections are now fixed for 23 May 2019 and the Parliament will be dissolved towards the end of April 2019.

I have reread the speech given in Committee by the noble Baroness, Lady Goldie. She said that the original drafting of the Bill, which did not include the date, was unacceptable to the House of Commons but, as I am sure she is aware, Members on both sides of the House of Commons were highly critical of the Government’s amendment to write the date into the Bill. Indeed, the Committee for Exiting the European Union in the other place stated that the government amendments will remove flexibility and create significant difficulties if, as the Secretary of State suggested in evidence, the negotiations,

“went down to the 59th minute of the 11th hour”.

Catherine Barnard, professor of European Union law at Cambridge, described the amendments as creating “an artificial straitjacket”. She said:

“In other words … it creates a rod for the UK negotiators’ backs, weakens any UK negotiating position and adds unnecessary pressure to those in the executive trying to deliver Brexit in a coherent, measured fashion”.


In the face of this strong opposition to the government amendment, in the end a compromise was proposed in the other place by Sir Oliver Letwin to give Ministers the power to change the date. This was passed in a whipped vote.

The purpose of this amendment is simply to give another opportunity to the other place to think about whether including the date is really expedient. What is the point of putting the date in the Bill when it may have to be changed in circumstances which we cannot foresee? If there is a case for putting the date in primary legislation—which I do not accept—it might be more appropriate to put it in the withdrawal agreement and implementation Bill, which will come to Parliament later in the year.

As I said on Second Reading, this Bill is absolutely necessary for the good government of the country. Although Ministers have said that they have no intention of seeking an extension to the two-year period, nevertheless, in legislating the process of withdrawal, we should give them a bit more flexibility to secure and obtain ratification of the best possible deal which will do the least damage to the economy and to the national interest. Ministers should recognise that, from all sides of this House, we are trying to help the Government in their negotiations and in no way to thwart the process. I beg to move.

--- Later in debate ---

[Lord Callanan]

My Lords, I thank all noble Lords for their contributions to this debate. Exit day has been discussed at length throughout the passage of this Bill. Set dates such as this are often crucial to the functioning of any legislation, but I would like to take this opportunity to remind noble Lords of the particular importance of exit day in this Bill.

Exit day is the moment in time when the European Communities Act is repealed. It is the point at which EU laws are converted into UK law, when the deficiencies in retained EU law emerge and when a range of other effects are triggered under the Bill. However, I reiterate that exit day within the Bill does not affect our departure from the EU, which is a matter of international law under the Article 50 process, as my noble friend the Duke of Wellington and the noble Baroness, Lady Hayter, made clear. What it does affect, however, is whether we leave the EU in a smooth and orderly fashion.

The definition of exit day, and how it is to be set out, has been amended significantly since the Bill was introduced to the other place by my right honourable friend the Secretary of State for Exiting the European Union on 13 July last year. My noble friend Lady Goldie has previously described the sequence of events which led us to the current drafting and I will not test the patience of your Lordships by repeating the arguments she made in Committee. What I will say, however, is that, crucially, the Bill left the other place reflecting the reality of international law under the Treaty on European Union. I see no reason, therefore, to change the Bill any further. The final drafting also reflected the concerns of Members of the other place who had been on both sides of the referendum campaign. That fact sits at the core of my opposition to Amendments 74, 95 and 99 in the name of the noble Duke, the Duke of Wellington.

As has been stated on many occasions during Report, this House reviews the legislation sent to it by the other place and highlights—often very well—areas where it does not think due consideration has been given. This point was well made by the noble Lord, Lord Grocott, as a leaver from the West Midlands. As a leaver from the north-east, also an area underrepresented in this House, I have considerable sympathy with his arguments. I therefore cannot why these amendments are seeking to restore something like the original drafting of the Bill when that drafting was considered at great length, on many occasions, and was rejected by the other place.

I also do not agree with Amendment 96 in the name of the noble Lord, Lord Wigley. The Bill is designed to provide continuity and certainty in domestic law as we leave the EU. This must be true in a scenario where we have a deal with the EU, but it must also be true in the unlikely event that there is no agreement between the EU and ourselves. While this is not what anybody on either side is hoping for, it would be irresponsible and out of keeping with the remainder of the Bill not to prepare for that unlikely event. In that circumstance, it would be vital that the Bill did not make reference to concepts which are contingent upon a successful negotiated outcome, such as an implementation period. That would prevent the Bill achieving its objective as agreed at Second Reading, because in that scenario further primary legislation would be required to alter exit day and provide for an operable statute book. Even in the Government’s preferred scenario of a successfully negotiated withdrawal agreement, including of course an implementation period, the noble Lord’s amendment presumes that no substantive provisions of this Bill will be required until the end of that implementation period.

While I do not want to be drawn into a discussion about the legal construction of the implementation period, which will be a matter for the withdrawal agreement and implementation Bill—I have no doubt we will have great fun in our opportunity to consider that—I do not think that the noble Lord can be certain in his assumption. This is the real issue with the noble Lord’s amendment: it attempts to use this Bill to legislate for the implementation period. But the Government have been quite clear that the implementation period will be a matter for the withdrawal agreement and implementation Bill once we have agreement. This Bill is deliberately and carefully agnostic about whatever deal we strike with the EU, prejudging neither success nor failure in negotiations.

Of course, we hope and expect to be successful in these negotiations, and our continuing progress demonstrates good movement towards that goal. I hope that noble Lords will reflect the compromise reached by the elected House, and therefore I respectfully ask the noble Duke to withdraw his amendment.

[The Duke of Wellington]

My Lords, I will respond first to the pertinent question from the noble Lord, Lord Butler. I did not mean to imply that, under the Article 50 process, there could not be a longer extension. I just feel that, as a practical matter, it is unlikely to be practical to extend for more than a few weeks, because the European Parliament will indeed be dissolved in late April prior to the European elections in May 2019.

[Lord Butler of Brockwell]

Are we not talking about two types of extension? As the noble Baroness, Lady Hayter, said, the European Parliament will have to approve or disapprove the agreement before it adjourns. But it could agree a deferment of the date on which the UK leaves the EU by a much longer period, could it not? It would be within its power to do that.

[The Duke of Wellington]

With the unanimous agreement of all members of the European Council a delay can be agreed without a term. That is unlikely. I referred to the European Parliament elections because that is a practical deadline in this process. That is the point there.

I agree strongly with the point made by the noble Lord, Lord Grocott, that this Bill must be passed. There is no doubt that we need this Bill for the good governance of the country, as I said earlier and at Second Reading. However, I do not agree that this should be construed as a device to delay Brexit by more than a short period for technical reasons.

I agree with the noble Lord, Lord Cormack. He said that we have a duty to improve this Bill and we have done so in many ways in the 10 or 11 amendments that we have so far passed.

This amendment and the related amendments give the other place an opportunity to think again about the expediency of including a date in this Bill, and it is right that we should test the opinion of the House.

--- Later in debate ---

Moved by

[The Duke of Wellington]

99: Clause 14, page 11, line 38, leave out subsections (2) to (5) and insert—
“(2) In this Act—(a) where a Minister of the Crown appoints a time as well as a day as exit day (see paragraph 19 of Schedule 7), references to before, after or on that day, or to beginning with that day, are to be read as references to before, after or at that time on that day or (as the case may be) to beginning with that time on that day, and(b) where a Minister of the Crown does not appoint a time as well as a day as exit day, the reference to exit day in section 1 is to be read as a reference to the beginning of that day.”

--- Later in debate ---

Moved by

[The Duke of Wellington]

74: Schedule 7, page 48, line 21, leave out paragraph 10 and insert—
“Power to appoint “exit day”
10_ A statutory instrument containing regulations under section 14 which appoint a day as exit day may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”