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

Lord Forsyth of Drumlean Excerpts

Wednesday 27th March 2019 Lords Chamber

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, first, I express my gratitude to the House for agreeing to suspend Standing Order 72 so that we can debate this statutory instrument today. I am also thankful to the Secondary Legislation Scrutiny Committee for its report, produced yesterday. In addition, I express special thanks to the other excellent committee, the JCSI, which met only this afternoon but has very helpfully released its view on the instrument and has not found any reason to draw it to the special attention of the House.

There was an important discussion yesterday about why the Government had asked the House to agree to take the debate without having a guaranteed report from the JCSI. Taking that decision was, in my view, the right thing to do and we should all be grateful to the JCSI for being prepared to do its work so quickly and thoroughly. I am sure that that has been of great assistance to the House.

[Lord Forsyth of Drumlean (Con)]

I am most grateful to my noble friend but, given that this has happened, surely it was not necessary to suspend our Standing Order.

[Lord Callanan]

Maybe not, but we did not know when the committee would be considering the report. It made special arrangements to sit—but I take my noble friend’s point.

Although the Motion approved by the other place on 14 March to seek an extension is not legally binding, the Government made it clear in that debate that we would seek an extension if that was what the House voted for. The other place then voted to approve a Motion to seek to extend the Article 50 period. An extension has therefore been agreed with the EU and the Government are now committed to implementing that extension in domestic law.

This is a vitally important instrument with a simple but crucial purpose. It will make sure that our domestic statute book reflects the extension of Article 50 that was agreed with the EU on Friday 22 March. As the House will be aware, the decision adopted by the European Council and agreed to by the UK provides for two possible durations. Should the other place approve the negotiated withdrawal agreement this week, the extension will last until 22 May. If it does not approve the withdrawal agreement this week, the extension will last until 12 April.

These regulations, laid under the European Union (Withdrawal) Act 2018, therefore cater for an extension in either scenario by redefining exit day to ensure that the day and time specified in that definition is 11 pm on 22 May or 11 pm on 12 April, depending on whether the other place approves the withdrawal agreement.

I note of course that the noble Baroness, Lady Hayter, has tabled an amendment to today’s Motion which I am sure she will speak to in a moment. As ever, my noble and learned friend Lord Keen stands ready to respond to that in his closing speech.

I take this opportunity to respond directly to a question put yesterday to my noble friend the Leader of the House by the noble Lord, Lord Pannick. I assure the House that the Government have considered carefully the vires under Section 20(4) of the 2018 Act and are satisfied that they have the power to make these regulations under that section. Section 20(4) provides that regulations may be made to,

“amend the definition of ‘exit day’ … to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom”.

That power applies only where the day and time specified in the definition of exit day differ from that when the treaties will cease to apply.

Following agreement with the European Council last Friday, the day and time that the treaties cease to apply do now differ from that contained in the definition of exit day. However, the European Council decision identified two possible dates when the EU treaties will cease to apply. Consequently, the amendment to exit day reflects those two dates, applying the same condition, and, in doing so, ensures that the day and time specified in the definition are the day and time that the treaties cease to apply to the United Kingdom. Only one day and time will apply at any given time.

It would be contrary to a natural reading of the words in subsection (4) to suggest that the power may not be exercised in this way to reflect the conditionality in the extension agreed with the EU. I would also draw attention to paragraph 21 of Schedule 7 to the Act, which puts beyond doubt that the powers in the Act may be used to deal with supplementary matters.

The effects of the instrument will apply across the domestic statute book, so it is important that I set out the details of what it will do and why. Currently, major changes to the domestic statute book reflecting our exit from the EU are due to take effect on exit day, which is defined in the European Union (Withdrawal) Act 2018 as 11 pm on 29 March 2019, despite the extension terms that have now been agreed at the international level. These changes apply across a huge number of policy areas, from emissions trading to Europol. All the changes are designed so that our statute book works when we leave the EU. However, because in many cases they amend EU regulations they are inconsistent with the situation in which we remain a member of the EU for a couple more weeks or months.

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[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.

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[Baroness Ludford (LD)]

My Lords, we on these Benches support this statutory instrument as a necessary measure to prevent confusion and uncertainty, although, as the noble Baroness, Lady Hayter, and noble Duke, the Duke of Wellington, have said, if the Government had listened to this House when it advised against putting in a fixed date, life would have been considerably easier. Both 29 March and the constant reiteration of the commitment to no extension were ideological fixations. Now, two of those are down out of three. I am looking forward to a Government U-turn on a people’s vote. That would make the trio.

We are sympathetic to the sentiments in the amendment in the name of the noble Baroness, Lady Hayter. I cannot improve upon what she said about the unfortunate way in which the negotiations have been conducted. This is not the place to go on at length about that, but the mess we are now in was predictable and, indeed, predicted. We agree that it would be very odd if the Government said that while they felt instructed by the people, they defied the will of the House of Commons, and indeed, as we have had cause to say before, they refuse to get an update on the will of the people from 2016—which, of course, amounted to only 37% of the people. All the indications are that views have evolved.

The Government have allowed themselves multiple bites at the cherry, as MPs have, but will not allow the people even one chance to rethink. That is very arrogant. We on these Benches would of course want to add to the amendment of the noble Baroness, Lady Hayter, by ensuring that whatever version of Brexit comes out as the top preference of MPs should then be put back to the people, for them to have the final say on whether they support it or wish to opt to remain.

The noble Lord, Lord Forsyth, who is having some fun today, expressed himself astonished yesterday that,

“the Prime Minister can go to a meeting in Brussels and, suddenly, what is in statute is completely irrelevant”.—[Official Report, 26/3/19; col. 1719.]

It is not quite like that. MPs voted for an extension to Article 50 and, for once, the Prime Minister did what the House of Commons told her to. She requested an extension, which became the European Council decision of 22 March. Since we are therefore still in the EU until at least 12 April, EU law is supreme over domestic law. That is how it works. I felt an intervention coming somehow.

[Lord Forsyth of Drumlean]

The point I was making was that the Prime Minister went to Brussels and made a request, which was refused. She was offered two dates and signed away the effect of the legislation without coming back to Parliament and asking it to express a view. I am sure the noble Baroness agrees that that is an extraordinary constitutional position.

[Baroness Ludford]

I think the noble Lord’s quarrel is with the Prime Minister.

[Lord Forsyth of Drumlean]

Yes.

[Baroness Ludford]

It is that, rather than with anything I have said.

I noted that while on Monday there was an insistence from the government Benches that this decision by the European Council represented international law, at least by yesterday things had moved on somewhat when the noble Baroness the Leader of the House referred to EU and international law. I am, however, puzzled by her insistence that the European Council decision and the UK’s agreement to it constitutes a binding agreement in EU and international law. It seems to me that that decision is simply a binding legal act under EU law, to which the UK is now and at least until 12 April subject. It just seems to be difficult for the Government to straightforwardly acknowledge this, presumably for political reasons.

I am sure that the noble Lord, Lord Pannick, will speak to the issue that he raised yesterday about the legality of the two alternative exit dates and I will leave that to him. From these Benches, we can accept the convenience of needing only one statutory instrument, and not potentially two, to cover both the scenarios envisaged in the European Council decision.

Finally, I want to ask about the position on the European Communities Act. I cannot remember whether I asked this yesterday or the day before. The Explanatory Memorandum to the present regulations says:

‘“Exit day’ is the day by reference to which provisions of the 2018 Act, including the repeal of the European Communities Act 1972 … take effect or come into force”,


but that is not my understanding. The European Union (Withdrawal) Act says that the repeal of the European Communities Act takes effect on exit day. My understanding is that an SI is needed to bring that into force; indeed, the briefing from the Library says:

“This provision of the EUWA”—


namely, the repeal of the European Communities Act—

“has not yet been brought into force”.

So even beyond exit day, unless there is an SI to bring into force the repeal of the ECA, the ECA will continue. Can someone explain how that interacts with these regulations? Even if you change exit day, do you still need an SI to bring in the repeal of the European Communities Act? I look forward to the clarification which I am sure the noble and learned Lord, Lord Keen of Elie, who is looking impatient, will be able to give me.

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[Lord Forsyth of Drumlean]

I cannot resist responding to the most extraordinary speech that I have heard since the noble Lord, Lord Kerr, said that the British people would come to heel on this matter. The noble Lord, Lord Hannay, said, “You had better get used to having your laws made by people who are not accountable”. As we know, the change in the date was made over dinner by people who are not accountable. The noble Lord, Lord Pannick, said with zeal: “If only they’d listened to me and our advice here”. The Act was passed by an overwhelming majority in the House of Commons, the elected House.

Turning to the noble Duke, the Duke of Wellington, I could not help but think, seeing the mess we are in today because Parliament is stuffed full of people who have deliberately set about trying to frustrate the result of that referendum, of what his very great ancestor said—that nothing except a battle lost can be half as melancholy as a battle won. There are no victors here, and the losers are the millions of people in our country who took the Prime Minister at her word when she said that we would leave the European Union on 29 March, as she told the House of Commons on more than 108 occasions.

I thank my noble friends on the Front Bench for having had the courtesy to listen to someone who has not, so far—I do not believe he will—entered this debate to say, “I told you so”. That is my noble friend Lord True, who yesterday pointed out to the Government that they should not subvert our due process by suspending Standing Orders to bring this statutory instrument before the House. The Government are to be thanked and congratulated on the fact that they did today what yesterday they said was impossible: they got the Joint Committee to look at the SI, and the Joint Committee miraculously found a printer who was able to print the results of its deliberations, and the House has been suspended so that we can see what the committee had to say on this important matter. It had nothing to say at all.

It had nothing to say at all because this is a stitch up—a fait accompli. The Prime Minister went to Brussels and signed up to this extraordinary proposition —I agree with many of the points made by the noble Lord, Lord Pannick—with these two dates, where people who are not accountable to our voters imposed conditions.

[Baroness Ludford]

Does the noble Lord accept that the Prime Minister went to Brussels because the House of Commons, which is accountable to the people, voted for an extension?

[Lord Forsyth of Drumlean]

Indeed, it suggested to, or instructed, my noble friend the Prime Minister to go to Brussels and ask for an extension, but we got two dates and diktat about what we had to do about them. That is a completely different proposition. I do not suppose that we will get another coalition Government but I must say something to the Opposition Front Benches, which may take pleasure in what is happening in the other place. A group of Conservative MPs has, extraordinarily, handed power to Jeremy Corbyn and the Scottish nationalists and worked with the Speaker of the House of Commons, in breach of convention. Today, at the other end of the building, the Executive is the House of Commons. Indeed, such is its enthusiasm for this new state of affairs that it has extended this situation until Monday—and there is nothing to stop it doing so until Tuesday or Wednesday. Moreover, it is reported that that same Speaker—again, against convention—is preventing the Prime Minister bringing her deal before the House of Commons again because it has been considered before, yet the Cooper-Boles amendment gets presented again and again. I rest my case: we find ourselves in an unpleasant place, which has come about because of a conspiracy by remainers.

[Lord Warner (CB)]

My Lords—

[Lord Cormack]

My Lords—

[Lord Forsyth of Drumlean]

I will give way in a second. There has been a conspiracy where Members of both Houses have sought from the beginning to frustrate what 17.4 million people voted for. I agree entirely with my noble friend Lord Robathan that this has done huge damage to Parliament and people’s trust in politics. In this unelected House, some Members glory in the fact that they have been able to undermine what a huge majority in the House of Commons voted for in asking us to accept our fate of being told what to do for the next two years against what people voted for in a democratic vote.

[Lord Warner]

Can the noble Lord explain to the House why, after she was requested to seek an extension, the Prime Minister decided of her own motion on the date of 30 June without, as far as I can see, any consultation with the EU? On the question of why the EU did or did not agree with her, it was because it was not prepared for that and so chose an alternative date to the one she offered. I thought that the noble Lord would be rather pleased with a shorter timetable than the one the Prime Minister asked for.

[Lord Forsyth of Drumlean]

I am unable to assist the noble Lord. I have no idea why the Prime Minister has done a whole load of things throughout this process. It has brought us to a very poor position.

[Lord Cormack]

My noble friend is waxing eloquent about conspiracies. What about the conspiracy of the ERG, which sought to take over the Conservative Party in another place?

[Lord Cormack]

Oh yes it is. My noble friend has supported the ERG throughout, as far as I understand it. He has always ignored those of us who have totally accepted the result of the referendum. If he had read a single one of my speeches in these debates, he would know that we want a seemly Brexit that recognises the interests of the 16 million people concerned about a decision they thought was mistaken. Where is my noble friend’s allegiance to democracy in all that?

[Lord Forsyth of Drumlean]

My noble friend described members of the ERG as being involved in a conspiracy because they sought to ensure what every single Conservative Member of Parliament stood on—a manifesto that said we would leave the single market and the customs union. I describe that as an act of integrity—of keeping their word to the people who elected them. For my noble friend to suggest that he has always been in favour of this and has been working assiduously to deliver what they stood for election on is beyond parody.

[Lord Framlingham (Con)]

My Lords, I am normally quite an optimistic man, but now I am really very close—at least in parliamentary terms—to despair. I despair for the Commons, I despair for your Lordships’ House and the way we have behaved over the past two years, and I despair for the British people who are being so appallingly governed. As an ex-Deputy Speaker, I am really saddened by the way our long-understood and cherished parliamentary rules are being thrown aside by people who should know better in their reckless campaign to stop us leaving the EU. As my noble friend Lord True explained to the House yesterday, it is vital that we differentiate clearly between the issues that may divide us—however important—and the structures and mechanisms that allow us to decide these matters in an orderly way. In stormy seas, it is important to cling to the structures that have served us so well in the past. Without a firm and settled framework in which to work, we will descend into chaos—indeed, perhaps we already have.

This leads me on to the pantomime taking place in the Commons today: a circus, with the Speaker as ring- master and the Prime Minister and Government as mere onlookers. What nonsense: indicative votes. All these suggestions and countersuggestions—second referendums, Norway, customs unions, hard Brexit, soft Brexit—have only one thing in common: they are all designed to prevent us leaving the European Union. That is what it is all about; it is a very simple matter. There is a pretence of accepting the referendum result, and I have heard it again in the Chamber today. How many people start their remarks by saying, “I completely accept the referendum result”, and then go on in their speech to indicate quite clearly that they have not, do not and never will? They call it improving the Bill or a better deal for the country. The truth is that they want to stop us leaving and to stop happening what the majority of the people in this country voted for and still want.

We have been told times without number by the Prime Minister that we leave on 29 March. I need not remind noble Lords that that is the day after tomorrow. If only we had had the honesty and courage to keep our word, get on with it as the country is urging us to do and remove the uncertainty, as people are crying out for: no more haggling deals; start trade talks; keep our money. What about all those companies that have planned for 29 March and are now told it is not happening—all those companies and people who believed the Prime Minister and planned to leave on that date? I do not believe that the Prime Minister should have agreed to extend the departure date in the way she has. This statutory instrument and the need for it are highly questionable. Although I would not want to damage British business or all the institutions, I find it absolutely intolerable that we have been put in this position by a Prime Minister who simply could not or would not keep her word.

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[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 Forsyth of Drumlean]

If my noble and learned friend checks Hansard, he will find that I said the Government had achieved the impossible by finding a printer who was able to print the result. His boss, the Leader of the House, told us that that was one of the things that it would not be possible for this Government to achieve.

[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.