Northern Ireland (Executive Formation) Bill

Lord Forsyth of Drumlean Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

As indeed does the Labour Party. I understand the rationale behind the amendments. We are in the holiday season—marching season. There is no Prime Minister, there could well be a new Secretary of State and Brexit looms over everything. It is not exactly the best time to try to come to an agreement. I understand the logic, but my fear—expressed by other Members of the Committee—is that there is a problem of drift.

The noble Lord, Lord Trimble, referred to the Good Friday agreement; he will remember when Senator Mitchell said that he was going home on 10 April. He had had enough and put down a deadline. It was ultimately because of that deadline that the political parties and Governments in Northern Ireland eventually came to a conclusion. If we take away a deadline, we take the pressure off the parties and the Government.

The parties obviously have a huge responsibility in trying to ensure a resolution. As I said at Second Reading, the issues that they have to resolve in Belfast at the moment pale into insignificance compared to those that had to be decided 22 years ago. There is nothing preventing this happening other than basic mistrust. I worry that the whole thing will inevitably drift towards direct rule if we keep on extending.

[Lord Forsyth of Drumlean (Con)]

I can see the logic—and, indeed, the power—of the noble Lord’s argument about a deadline leading to a resolution. But can he explain why he is not taking exactly the same view on Brexit?

[Lord Murphy of Torfaen]

That is because we are not dealing with Brexit at the moment, but with Northern Ireland. Had we resolved the Northern Ireland situation over the past two years, we would possibly have resolved the backstop issue. Had we done that, Brexit could have been much easier. However, the Government have not been negotiating well on either issue.

I do not hold huge confidence in our new Prime Minister—assuming it will be Mr Johnson—or his interest in Northern Ireland. However, I hope that the Secretary of State, whoever that might be, will be able to concentrate on the issues in front of us. The Irish and British Governments are joint guarantors of the Good Friday agreement. They must therefore do an awful lot more over the coming weeks to ensure that these dates are met.

We have suggested, for example, that there should be an independent adjudicator or chairman such as George Mitchell, and all-party meetings—not just meetings of the two parties—to resolve these issues. Above all, there must be constant pressure on the two Governments, who must constantly be present, at the highest levels in Belfast to resolve this situation. There is always a reason why we cannot come to a conclusion in Northern Ireland—there always has been: elections for this, elections for that, marching season or whatever it might be. We cannot go on like this. Of course, the Bill as it stands means that we can go on to January, though I hope we will not have to do so. But Parliament is losing patience in all this.

Decisions must be made in Northern Ireland by Ministers of one sort or another. I would be utterly opposed to the reintroduction of direct rule. As a former direct rule Minister, I always felt that I should not be taking those decisions. But we cannot go on like this. That is why the Opposition will support the Government on this issue and not, I fear, the amendment of the noble Lord, Lord Cormack, and his noble friends.

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[Lord Anderson of Ipswich (CB)]

My Lords, Clause 3 already provides for the publication of regular reports on progress towards the formation of an Executive in Northern Ireland, and for those reports to be laid before Parliament—one by 4 September and another by 9 October, with further reports at intervals of no more than 14 days. Amendments 6 and 7, which have support from all parts of the House, require those reports to be debated in both Houses, pursuant to Motions to be moved within five calendar days of each report being laid. I hope that there will be as few of those reports as possible, because when they stop it will be because the Executive have finally been formed. I hope also that the debates that these amendments provide will help to keep up the pressure for that long-overdue development.

However, let there be no doubt about the main purpose of the amendments. They are defensive fortifications against the possibility—unlikely, no doubt, but pointedly not disavowed by the leading candidate—that the next Prime Minister will advise Her Majesty to prorogue Parliament for the express purpose of achieving a no-deal Brexit to which Parliament is opposed. I am no enthusiast for procedural gambits—today of all days, we should be wary of anything that is not cricket—but to my mind these amendments are abundantly justified by the extraordinary gravity of what is apparently being contemplated.

This would not be a standard prorogation of Parliament. The purpose of the prorogation extending beyond 31 October would be to bring about an irreversible change not just to our trade relations but to our central political and economic alliance, without putting anything in its place. If the House of Commons were to give its democratic approval to such a momentous step, of course it must happen—nothing in these amendments would impede, or is intended to impede, that—but for Parliament to have its voice removed precisely because of its anticipated opposition would be astonishing, unconstitutional and without precedent in recent times.

I accept of course that prorogation has attracted controversy in the past. A technical use of it was made in 1948 to fulfil the requirement in the Parliament Act 1911 that a Parliament Bill be approved by the Commons in three successive Sessions. In that case, though, a clear majority of MPs desired the legislation to pass and were in favour of prorogation for that purpose. That episode pales into insignificance when compared to what it seems is now so casually contemplated: a direct assault on the sovereignty of Parliament itself, aimed at circumventing its will irrevocably on one of the central questions of our time.

[Lord Forsyth of Drumlean]

My Lords, is the noble Lord right to describe what happened in 1948 as a technical matter? It was moved by a Labour Government to impose their nationalisation of British steel, which was opposed by this House, and to remove the ability of this House to delay the legislation. How can that be described as a technical matter?

[Lord Anderson of Ipswich]

What happened in 1948 was a prorogation to give effect to the provision of the Parliament Act 1911 that approval of the Commons was needed in three successive Sessions. The key distinction between that situation and what is proposed now is that it was a course that the House of Commons desired and was prepared to see go through.

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[Lord Newby]

My Lords, I am extremely grateful to the noble Lord, Lord True, for taking up my invitation to speak before I did. Apart from enlivening proceedings, it has given me the chance to respond to some of the things he said. I congratulate him on having a very acute and astute understanding of the policies of the Liberal Democrats when it comes to Brexit. These are not exactly secret, but he got them to a T.

One thing, however, that I think the noble Lord was wrong about was the suggestion that because we want the people to decide on Brexit, and we would prefer it if they decided they did not want Brexit, we are saying—far from it—that there should be no vote in September in the Commons about a no-deal Brexit. I would welcome such a vote. This amendment, this procedural gambit, is necessary only because we believe it is reasonable to take precautions against the new Prime Minister preventing the Commons having a vote. The only reason for it is that everybody in your Lordships’ House knows that, if the Commons votes on a no-deal Brexit, it will vote it down. The only way you get that outcome is by some kind of chicanery: the chicanery of proroguing Parliament purely for that political purpose. We believe, as does the noble Lord, Lord Anderson, and the other signatories to the amendment, that that would be an improper use of Prorogation.

The noble Lord, Lord True, said that this Session has gone on far too long. Perhaps it has. I should be delighted to have Prorogation on 1 November, but Prorogation requires a Prime Minister with a plan and a Queen’s Speech with some substance. If the incoming Prime Minister has such a plan and such a speech by 1 November, the entire country will be delighted. We fear that there is nothing but vacuity where there should be a programme and that Prorogation will continue far beyond 31 October or 1 November because the Government do not know what to put in a Queen’s Speech.

It is extraordinary that your Lordships’ House is having to resort to a procedural gambit in order to try to prevent a Prime Minister subverting the constitution. That sort of thing happens in tinpot dictatorships. We go around the world saying, “Of course, it does not happen here because we are so much more grounded in constitutional principle. No, it could not happen here”. The truth is that the incoming Prime Minister has not ruled out such a thing. It would have been very easy for him to have said, “Of course, I would never contemplate such a step because I know that it would be a constitutional impropriety and shameful for our democracy”, but he has refused to say that. What are we expected to do? Just sit on our hands and trust in the good sense of the incoming Prime Minister? There may be some people in the Conservative Party prepared to do that, but it does not extend much beyond that.

That is why we have an amendment which is a procedural gambit in a Bill about Northern Ireland: because it is all we have. We have seen no other way to put something on the statute book to prevent the constitutional principles of this country being ripped up. It is of course unsatisfactory to do that, but it is because we are in an extremely unsatisfactory position. That is why we strongly support the amendment.

[Lord Forsyth of Drumlean]

My Lords, I support my noble friend Lord True in his amendment and congratulate those noble Lords who have spoken against it and in support of Amendment 7—I note that quite a few of them are lawyers—on their honesty in admitting that this is some kind of trick or gambit to frustrate the will of the British people, who voted overwhelmingly for us to leave the European Union, and to frustrate the law and the decision taken by both Houses of Parliament. I know that there is a difficulty in the House of Commons in so far as three times as many Members of Parliament voted to remain as voted to leave, but the fact is that Parliament passed the legislation to require people to take that decision and the Government of the day gave an undertaking that that decision would be respected. I am happy to give way to the noble Lord.

[Lord Newby]

My Lords, the Government had a date to do that: 29 March. That date has been put back. To claim that the possible missing of the date of 31 October is a huge impropriety to people who voted to leave in the referendum rather overlooks what has been happening in recent months.

[Lord Forsyth of Drumlean]

We have just heard speeches from the other side of the House against the amendment of my noble friend Lord Cormack, which sought to extend the deadline in respect of the Bill, that it would be foolish to do so because it would take off the pressure and would mean that we were kicking the can down the road. At the same time, it is perfectly clear that the mover of the amendment is passionately determined to prevent us leaving the European Union. That is what this amendment is about.

I wish to make a more general point about the Bill as a whole. The noble Lord, Lord Pannick, welcomed the fact that my noble friend is to join the Constitution Committee, whose report on the Bill is extremely damning. I have never seen a bigger Christmas tree than this Bill—all sorts of things have been added. The Bill has been fast-tracked, which means that there is no opportunity to consider many of the important matters in detail. I do not blame the Government for that. The House of Commons has chosen to add a range of issues and the whole thing is going to be fast-tracked through this House. To my mind, when added to a device to try to frustrate the elected Government implementing what the people voted for in the referendum, that is deeply worrying.

[Lord Cormack]

I accept the result of the referendum, as my noble friend knows only too well, but the people did not vote to leave without a deal. The amendment would make sure that if the country leaves without a deal, it leaves without one but with parliamentary approval. That is the substance of the amendment.

[Lord Forsyth of Drumlean]

I turn to the use of the phrase, “leaving without a deal”. Deals have already been made on citizenship, flying planes and access to ports. There is no deal. If my noble friend is saying that we must defend parliamentary democracy by voting for a deal in the form of the withdrawal agreement, which was overwhelmingly rejected, I think that he has got himself into something of a tangle. It is totally inappropriate for this amendment to be added to a fast-track Bill about Northern Ireland. The amendment would pursue some will-o’-the wisp notion that Parliament will somehow need to be prorogued so that we can leave the European Union on 31 October. Parliament has already voted overwhelmingly for us to do that and 31 October is the deadline which has been set by the European Union.

I give way to my noble friend. We have all the usual suspects in this debate.

[Baroness Altmann (Con)]

The point that my noble friend is skirting around is that Parliament—both this House and the other place—has voted against leaving the EU without an agreed deal. That is why we are so disturbed that one of the potential leaders of the Conservative Party and the future Prime Minister has refused to rule out using what would be a parliamentary gambit to prorogue Parliament with the express purpose of frustrating the votes in both Houses which say that we should not leave without a deal, as that has been shown to be damaging to the economy in all the official publications.

[Lord Forsyth of Drumlean]

Does my noble friend agree that there was an overwhelming majority to pass a law which states that we would move Article 50 and leave the European Union? Parliament may have voted on Motions on one thing or another, and it may vote on Motions between now and 31 October. However, if Parliament wishes to change the law, it needs to pass the necessary legislation. What I am objecting to is the undermining of our parliamentary procedures by amendments such as this. I object to people seeking to manipulate what Parliament has already decided. If we wish to change the law, we have to have a Bill that will be passed by both Houses. The law of the land says that we will leave on 31 October and all the people who are now raising this straw man of a prorogation of Parliament are to my mind ignoring the fact that Parliament has already determined by a huge majority on the vote on Article 50 that we will leave.

[Lord Bruce of Bennachie (LD)]

Does the noble Lord recognise that if we leave without a deal at the end of October, we will leave with no legal basis whatever on which to operate? We do not have a legal agreement. In order for no deal to be agreed, Parliament should have the right to vote for no deal.

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[Lord Forsyth of Drumlean]

I do not recognise that but I can understand why, as a member of the Liberal Party, the noble Lord continues to make that kind of argument, just as he and his party have sought to create unwarranted scare stories throughout the whole debate because they do not want us to leave the European Union. I am simply making the argument that a majority—17.3 million people—voted to leave the European Union and Parliament voted overwhelmingly to pass a law which moved Article 50 which means that we will be leaving on 31 October. That is the case unless the Government seek a further extension and, I think rather remotely, the European Union agrees to provide one. That is not going to happen.

All this stuff about prorogation is yet another example of people kicking up dust, wasting the time of this House and Parliament and diverting the Government from what they should be and are doing: making the necessary preparations so that we have in place a series of arrangements that will enable us to leave the European Union and to continue to build a prosperous nation, in line with what the British people voted for.

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[Baroness Jones of Moulsecoomb (GP)]

I am so sorry to interrupt the noble Lord, but he may know that I voted to leave the EU—and, if asked again, I would do the same thing—but I did not vote to leave with no deal. There are thousands and thousands of people like me, so it is only right that Parliament gets another say on this. A no-deal option is not what a lot of us voted for.

[Lord Forsyth of Drumlean]

I am most grateful to the noble Baroness for the support she has given to what the majority of people in this country wanted to see happen, but I point her to the opinion polls, which show that hers is a minority view. Most people in our country now want this matter finished, so that we can get on with attending to the biggest issues we face—whether social care, education, taxation or anything else—and that is what we should be getting on with.

I make one last point, which arises from what the noble Lord, Lord Pannick, said when he wrongly implied that my noble friend was attacking a particular individual; he mentioned Gina Miller. I pay tribute to Gina Miller; she has done a brilliant job. Had it not been for Gina Miller, we would not have been forced into passing the legislation that, by law, requires us to leave on 31 October. I say to the noble Lord moving this amendment: beware of Gina Miller and the law of unintended consequences. By seeking to frustrate the wishes of the people, you will put the reputation of Parliament and the standing of this House in jeopardy.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, before the noble Lord resumes his seat—I see he already has—could he just explain why, if the matter is as straightforward as he puts it to us, it has been so difficult for his right honourable friend Mr Boris Johnson to make it clear that it does not require prorogation to achieve the outcome he is looking for—that we leave the European Union on 31 October? So far Mr Johnson has refused to make that clear. Can the noble Lord suggest why that might be?

[Lord Forsyth of Drumlean]

Yes. I voted for Mr Johnson —I look forward to him becoming Prime Minister—because he seems to understand that the first rule of negotiation is not to make any concessions in advance of carrying out the negotiation. It is a foolish person who asks, “Will you make this or that concession?” and agrees to it along the way.

The very fact that this amendment is before us indicates that he is up against a Parliament in which some three to one in the House of Commons wish to reverse—or certainly voted against—the decision of the British people. I believe he will go into these negotiations from a position of strength, whereas I regret to say that his predecessor went in offering money before there was anything in return. The withdrawal agreement is an agreement to have a further negotiation about a whole range of things, including fishing, trade and other matters. We will be in good hands with Mr Johnson if he becomes leader of the Conservative Party. His approach to negotiations is entirely correct.

[Baroness McIntosh of Hudnall]

My Lords, with great respect to the noble Lord, I do not think he has answered my question. In the light of what he has just said, does he believe that the use of Prorogation to bring this matter to a close is part of the incoming Prime Minister’s armoury and should therefore be retained in that position? If he believes that, does he think the use of Prorogation in such circumstances appropriate?

[Lord Forsyth of Drumlean]

I recall hearing complaints not so long ago from the Front Bench of the noble Baroness that this Parliament should have been prorogued earlier because not enough opposition days were being provided and it had gone on too long. When Parliament should be prorogued is a matter for the Executive of the day. This amendment and debate are a distraction from the main issue we should be concerned about; in the case of this Bill, Northern Ireland and our Brexit negotiations, putting in place the necessary preparations—

[Viscount Hailsham]

Will my noble friend give way?

[Lord Forsyth of Drumlean]

May I just deal with one point first?

[Viscount Hailsham]

Of course, I am so sorry.

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[Lord Forsyth of Drumlean]

We should be dealing with the series of arrangements that will need to be made when we leave the European Union on 31 October. I still believe it entirely possible that those people in Europe—we now have a new, slightly odd gang there—faced with the reality of a Prime Minister who is determined for us to leave, will perhaps see common sense and we will be able to get a negotiation. It would be a foolish person indeed who answered the question of the noble Baroness in the context of the forces we face.

[Viscount Hailsham]

My noble friend has not addressed the very question asked by the noble Baroness: that is, what does he think about the motive behind this? If Mr Johnson is proposing to prorogue Parliament to prevent the House of Commons challenging the decision of Ministers, does he think that is right?

[Lord Forsyth of Drumlean]

I do not think for a moment that he is, and I do not think that the House of Commons is able to challenge our leaving on 31 October unless it and this House pass the necessary legislation to do so. If this House is worried about the timetable and the opportunity to do so, that is a much bigger problem than the timetable for any Prorogation.

[Lord Carlile of Berriew]

My Lords, it is always a pleasure to follow the noble Lord, Lord Forsyth, who is one of the most persuasive debaters in this House, as he was in the other place. However, I am concerned by what he said a moment or two ago. He seems to have forgotten that we do not have an executive form of government in this country. If it is Mr Johnson who becomes Prime Minister, that is what he becomes—Prime Minister, not president of the United Kingdom. The role of the Prime Minister is surely to face Parliament, the House of Commons in particular, persuade it if he can and serve it if he retains its confidence. If he loses its confidence, it becomes his duty to resign, which could happen more quickly than some, particularly Mr Johnson, think.

[Lord Forsyth of Drumlean]

If I may respond to that point, what the noble Lord says is absolutely right, but the Prime Minister also has a duty to obey the law. The law is that we are leaving on 31 October. If Parliament does not like what the Prime Minister does, it can pass a Motion of no confidence, and then we will have a general election. If we end up with a general election in those circumstances, I am not sure the noble Lord will get what he wished for.

[Lord Carlile of Berriew]

The noble Lord chided the number of lawyers taking part in this debate. I have certainly practised law, but, if I may say so, and with great respect, what he has just said shows how little he understands the law of which he has complained.

To turn back to the thread of what I was going to say, I have spent 34 of the past 36 years of my life as a Member of one and then the other of these two Houses of Parliament. I listened to the eloquence of my noble friend Lord Anderson with great attention. I must tell him that I am extremely reluctant to vote for his amendment because, as a parliamentarian of 34 years, I do not like to see the rules of the two Houses of one of the most distinguished Parliaments in the world used as part of a parlour game—as devices.

But then I listened to the noble Lord, Lord True, and, with great respect to him, I realised that the true democrats in this debate are the noble and learned Lord, Lord Goldsmith, the noble Lords, Lord Anderson and Lord Newby, and the noble Viscount Lord Hailsham, who tabled this amendment. My reluctance is overcome by my wishing, as they do, to sustain the law and sustain—I use that word advisedly because I am not ashamed of using it—the traditions and democratic role of this Parliament, including the role played by your Lordships’ House.

I fear that what is being advised to the Committee by the noble Lord, Lord True, and what appears to be in the mind of Boris Johnson, is to drive a carthorse through parliamentary procedure and simply leaves the debris as an acceptable part of what occurs. It shows that they do not understand the fundamental constitutional nature of the referendum and the process that followed it. It was not the duty of this Parliament simply to leave the European Union just like that. It was the responsibility of this Parliament, having been advised by the population in the referendum to attempt to leave the European Union in a way that did not destroy the economy or the political structure of this country. In my view, that requires the attention of Parliament to the very end, not the frustration of the law.

If I have to, I will reluctantly vote for the amendment, but it could all be resolved so simply. All Mr Johnson has to do is to pick up the telephone—with a witness or maybe several witnesses present, I hasten to add—and say to the noble Lord on the Front Bench, “I have been very badly misunderstood. I give a clear undertaking that I will not prorogue Parliament so as to frustrate the very purpose for which it exists”. Then I would not have to vote reluctantly for something that I do not really like.

[Lord Adonis (Lab)]

My Lords, the critical issue, which the noble Lord, Lord Forsyth, would not answer in my noble friend’s question, is whether he actually favours Prorogation. It is important that we get to the substance of the issue, which is very clear. Is it a responsible or legal act, in the view of the two Houses of Parliament, to ban Parliament from meeting to discuss the affairs of the nation in September and October? That has never happened before. The noble Lord, Lord True, said that there have been Prorogations in October. But there is a long-established convention to this effect. Prorogations are for a few days before the new Session of Parliament. The Library has produced a note that lists them all. They are of five days, six days or three days. In one case, it overlapped with the Whitsun Recess and was for 20 days. They have been of 12 days, seven days and three days—always for the purpose of preparing for a new Session of Parliament.

The noble Lord referred to the supposed controversy of 1948. There was no controversy in 1948. The two Prorogations to create the additional Session required by the Parliament Act 1911 lasted one day each. There was no controversy about the Prorogation. Of course, as the noble Lord, Lord Forsyth, said, there was controversy about the nationalisation of iron and steel. That was because the Conservatives did not want it and Labour did. It had been in the Labour manifesto and Labour sought to implement it. But there was no controversy about the terms of the Parliament Act 1911.

[Lord Forsyth of Drumlean]

The noble Lord, Lord Pannick, laid much emphasis on motive. The motive was to prevent the House of Lords blocking the nationalisation.

[Lord Adonis]

The motive was to pass a new Parliament Act amending the Parliament Act 1911 under its own provisions. An absolutely legal procedure was followed. It was pursued on the instruction, no less, of a huge majority in the House of Commons because it followed the 1945 election.

All these points are entirely spurious. The issue that the Committee needs to address is whether it is acceptable for Parliament to be banned by the Government from meeting in October when there are urgent affairs of state to be debated; namely, Britain’s membership of the European Union and what policies will be pursued in that regard. I am absolutely amazed that any parliamentarians think it appropriate to ban Parliament from meeting as a way of overriding what might be the will of Parliament if it does meet.

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The arguments being put forward are entirely spurious. I do not think the noble Lord himself agrees with the suspension of Parliament in October. He has an opportunity to rise and say that he does. He is very noticeably not rising to say that. Let me put words into his mouth: I do not think he agrees with his own proposition. Let us be clear. He does not agree that Parliament should be banned from meeting in October. He is too much of a parliamentarian himself, having been a Member of both Houses, to subscribe to that part of the Charles I proposition.

[Lord Forsyth of Drumlean]

The noble Lord is talking nonsense. I do not believe that Prorogation is an issue. He is quite right when he says that Parliament can change the law, but I do not believe there is either a majority or the time to change the law before 31 October. In doing so, many people would lose their seats, just as he failed to win his in the recent election because of his position.

[Lord Adonis]

That is a very silly debating point if I may say so. The key issue is that he said that he did not think Parliament meeting in September and October was a concern. In that case, what on earth are we arguing about anyway? The noble Lord, Lord Anderson, is seeking to establish in law that Parliament must meet in September and October. If the noble Lord agrees with that, why on earth are we having this argument in the first place?

The only other point that needs to be made—Boris Johnson is clearly considering this, otherwise these stories would not be running and we would not be in this situation—is that it would be a grave constitutional crisis if a Government were to ban Parliament from meeting for two months, for the whole of September and October. That is what would be involved. There is no modern precedent for that happening and no precedent in the past century for Parliament not meeting in October.