European Union (Withdrawal) (No. 6) Bill

Lord Goldsmith Excerpts

2nd reading (Hansard): House of Lords
Thursday 5th September 2019 Lords Chamber

[Lord Callanan]

The reason I used that form of wording is that one of the original proposals was that we would guarantee that it would receive Royal Assent. Obviously, we cannot speak on behalf of the Palace so we merely said that we would enable it to be sent for Royal Assent. I think the original guarantee that we were asked for was that it would receive Royal Assent by Monday evening. We could not give a guarantee because obviously that depends on the ability of Her Majesty, so we will send it for Royal Assent if it becomes an Act.

[Lord Goldsmith (Lab)]

But of course it would be open to Her Majesty’s Ministers to advise her to give Royal Assent, and I assume that is what would happen. Can that be confirmed?

[Lord Kerr of Kinlochard]

May I repeat to the Minister the question that Mr Marr put to Mr Gove? Will the Government act on the law of the land if this Bill becomes an Act and receives Royal Assent?

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[Lord Goldsmith]

My Lords, I agree with the noble Lord, Lord Kerr, who said that it is a privilege to be a Member of your Lordships’ House and to participate in debates such as this. I would make the point that I have said that before, but I am worried about being accused of dementia by the noble Lord, Lord Patten of Barnes, for repeating my previous speeches. To listen to this debate today and the contributions from such distinguished former civil servants—we have heard from the noble Lords, Lord Wilson, Lord O’Donnell and Lord Butler of Brockwell—has been extraordinary. The quality of contributions has been inordinately high, as has the thoughtfulness of the debate. We have been debating this now for six hours. Over 40 speakers, without any form of compulsion or even a speakers’ list, have been able to make contributions. That is a very adequate way to allow this House to consider the Second Reading of the Bill. In light of what was said yesterday, that is important to note.

The Bill is simple but necessary. It essentially stops no deal, but not altogether. I want to make that clear. I can see the noble Lord, Lord Callanan, shaking his head enthusiastically at this prospect, because it allows no deal if the House of Commons can be persuaded to pass a Motion in support of that. Let me come back to that. The Minister will obviously add what he wants to on it. It is necessary, because there is a real concern, referred to by a number of your Lordships, over a lack of trust in the Government and that, unless they are constrained, the Government will allow us to crash out never having approved a final deal or it not having the approval of the House of Commons.

A number of your Lordships referred to the dangers of crashing out without a deal, and we have talked about this on a number of previous occasions in this House. On the whole, this House has clearly indicated its view that leaving without a deal would be detrimental. Today we heard the noble Baroness, Lady Bull, and the noble Lord, Lord Bilimoria, on the risk to the economy. On security and the union, we heard powerful and compelling speeches on Northern Ireland from my noble friends Lord Mandelson and Lord Hain and the noble and learned Lord, Lord Mackay of Clashfern, and on important aspects from the noble Lord, Lord Empey, and others. On Wales, we heard from the noble Lord, Lord Wigley, and others. As to the risk to young people and disadvantaged persons, we heard from the noble Earl, Lord Listowel, and the noble Baroness, Lady Bull.

These are the risks that we want to see avoided. The criticisms of the Bill from the noble Lord, Lord Howard of Lympne, in particular, are that it distorts our normal process of the separation of powers. I think he has a rosier view of the separation than I do, but let us be clear; this does not prevent the House of Commons, which is the legislature, giving its approval or non-approval to an event, but says that that is necessary before we could leave without a deal—or that an agreement has been reached.

It is also to be noted, given what has been said about hampering the Prime Minister in his negotiations, that the Bill is clear that not until after the European Council meeting on 17 October does the moment come when, if he has not reached a deal or obtained the consent of the House of Commons, he has to ask for an extension. Clause 1(3) does not trigger the need to ask for an extension until 19 October. In those circumstances, that particular element of concern is met.

I return to a point made by a number of noble Lords: the lack of trust in the Government, which has resulted in a Bill which is more constraining than one might have hoped to see. I must say, as many other noble Lords have, that what has happened on Prorogation is deeply concerning. It was deeply concerning when it was said that Prorogation had nothing to do with Brexit when it was plain to all of us that it had everything to with it. We did not need to see the documents that have been revealed in the Scottish case to know that. Now that we have seen them, however, we know that completely.

What is more, we know that the decision was made in the middle of August, at a time when it was not revealed to the House of Commons, this House or the public—or, apparently, to the Cabinet. Maybe I am wrong to see a sinister approach in that, but that sort of concern means that this House is entirely justified. The other place, whose Bill we are following, wants in the light of that lack of trust to make sure that this does not happen without either an agreement or the other House giving its approval.

It has been said that this will not solve the problem a number of noble Lords have raised. That may well be right, but it solves an immediate problem: the risk that we will find ourselves with a clock tick-tocking down to 31 October, not actually having a deal or even seeing any negotiations for a deal going on. That worries a lot of us as well. I think it was the noble Lord, Lord Krebs, who first raised the point in an intervention that the Prime Minister had said that he needed, or was happy to have, 30 days to come up with alternative arrangements. The clock tick-tocked, and we did not see what those arrangements were. We still have not seen what they are. In those circumstances, to say that Parliament is right to insist on a clear set of rules for what will take place seems absolutely what we should do.

One of my few regrets about the debate concerns what happened yesterday, partly because we spent a lot of time with bitterness and rancour, which we do not want to see in this House. However, particularly due to the efforts of my noble friend Lady Smith and the Government Chief Whip, we came to an agreement that we can all be happy with. That is important.

I was a little saddened because, at the beginning of that debate, there was confusion between me and my noble and learned friend Lord Falconer of Thoroton. Normally, it is extremely flattering to be confused with him—I make that clear—but statements were made in the context of complaining that I had previously said things that I now appear to be disagreeing with by having made strong statements against the kind of Motion that was being put forward. I was cut by that—but not quite as cut as I was by a young French waitress recently when I was on holiday with my family, my children and their friends. They wanted to know, because there was a casino attached, what the age limit for the casino was and the young woman said to me, “There’s no maximum age limit”. Your Lordships may be relieved to know that that reassured me and I can provide the address of this excellent establishment, if noble Lords would like, afterwards.

The fundamental point is that we support the Bill. We are grateful to the other House for having sent it to us and to my noble friend Lord Rooker for putting it forward. We will have Committee, Report and the remaining stages of the Bill tomorrow. It would be good if the noble Lord, Lord Callanan, when he winds up for the Government, could repeat the assurances he gave during the debate that the Government will accept the Bill and make sure that it is in a position to get Royal Assent. As I suggested in an intervention, I hope they will advise Her Majesty to give Royal Assent. I accept that they cannot promise what Her Majesty will do, but they can give advice. We all know that the convention is that if advice is given, the monarch will follow it. I also hope that, as one noble Lord suggested, they will follow the spirit. We do not want to see any tricks, any shifting, any dodging about—whether that comes from Mr Dominic Cummings or anyone else—to get around this. If this House and the other House have said, “This is what should happen; this should be the Bill”, I hope that will be enforced and respected in the letter and in the spirit.

Given the length of the debate—I apologise that I have not referred to the excellent contributions of a number of other noble Lords—I urge my noble friend Lord Rooker to ask the House to give this Bill a Second Reading, and we will support that.

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[Lord Goldsmith]

I am just thinking through the implications of what the noble Lord has been saying. I have been hearing and reading that the Prime Minister has said he is negotiating and that the negotiations are going very well. I took that to mean that something was being discussed that he thought might be acceptable, not just the existing withdrawal agreement, and he jumped at the idea put to him by Angela Merkel of coming up with alternatives in 30 days. Is he now telling us that if the Bill passes, the Prime Minister will decline to negotiate any further? Is that the Government’s position?

[Lord Callanan]

No, that is not what I said at all. I am saying that it makes the Government’s position very difficult to persuade the EU to do any kind of alternative deal because all the other options remaining on the table are perfectly acceptable to it. In our view, as I said, the Bill would wreck any prospect for a renegotiated deal ahead of 31 October. It clearly would not honour the referendum result. It would be another pointless and harmful delay and would continue to contribute to the rancour we are experiencing in this House and in the public debate generally. It will come as no surprise to noble Lords whatever that the Government cannot support the Bill. I urge all noble Lords across the House who are committed to leaving the EU and to respecting the referendum to therefore vote against it.

European Union (Withdrawal) (No. 6) Bill

Lord Goldsmith Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 6th September 2019 Lords Chamber

[Viscount Trenchard]

I thank the noble Lord for his clarification, but that does not affect my basic premise that the Bill nevertheless refers to “Lords sitting days”, “days” and “calendar days” in a confusing manner. That also needs to be clarified.

[Lord Goldsmith (Lab)]

My Lords, I said yesterday what a privilege it was to be in this House, but having heard the noble and gallant Lord, Lord Stirrup, the noble Lord, Lord Lisvane, and the noble Lord, Lord Cormack, who is not on the Cross Benches, they have answered the points that I wanted to make on this amendment. The starting point for the context is, obviously, as the noble Lord, Lord Cormack, said, the limitation on time for this House and the other House imposed by Prorogation. We are in circumstances where we might think theoretically about asking the Commons to think again, but there will not be time. There will not be time for ping-pong because, if Prorogation hits, the Bill falls. I believe that that is what this House wanted to avoid, by pushing through and accepting Second Reading yesterday.

Let me come—

[Baroness Butler-Sloss (CB)]

I thank the noble and learned Lord very much for allowing me to intervene. Has not the noble Lord, Lord Kerr, given us the answer? Does it not just simplify entirely the amendment before us?

[Lord Goldsmith]

The noble and learned Baroness is absolutely right about that, which is why I particularly complimented and thanked him for his intervention and observation. The conditions referred to by the noble Baroness, Lady Deech—such as the monetary issue, us being required to have a new Prime Minister, and a referendum—are not, in my view, things that the European Union could impose on this country. We have said this before and I say it again: although the noble Lord, Lord Kerr, is not a lawyer, he drafted Article 50 and so knows something about what its conditions contain.

[Lord Trevethin and Oaksey]

Perhaps I may assist the House by addressing this point, which arises out of the observations of the noble Lord, Lord Kerr. He indeed drafted Article 50. It is drafted in terms that do not expressly confer a right to withdraw an Article 50 notification. However, according to his views, it has now been held that such an entitlement impliedly exists. It is not difficult to argue for an implication that it is legitimate for the European Council to seek to impose conditions to our request for yet another extension, which is a request for an indulgence. Can the noble and learned Lord assist on that?

[Lord Goldsmith]

I beg to differ from the noble Lord. The Committee will also bear in mind that anything the European Council does, or seeks to do, is itself subject to the requirements of the treaties. If it does something which is thought to be outside the treaties, that is justiciable in the courts of this country—we now know very well that they can do that—but also in Brussels and Luxembourg. I do not see a problem with that. I do not see the difficulty that is raised. The Bill is clear that, if we get the answer, “You can have this extension to this date”, the Prime Minister has to act. If the date is different, that is a different consideration, and will have to be considered by the Commons. However, if we were to make an amendment now to deal with something that we are being advised the European Council could not do, we would be defeating the Bill because we would be sending it back to the Commons, which would not be sitting to receive that amendment and deal with it. I therefore respectfully invite the noble Baroness to withdraw her amendment. If she does not do so, certainly we will oppose it.

[Lord Lilley]

My Lords, I am not a lawyer but, from what I have heard, I believe that this amendment carries considerable weight. I am not persuaded, even by the noble Lord, Lord Kerr, that conditions could not in practice be imposed. We know that that has been talked about frequently by the leaders of our partners in Europe and by European Commissioners. Are noble Lords able to tell me what would happen if, when we asked for an extension, those in the EU asked what it was for? They have repeatedly asked us that. What if we said that we did not know, and they then told us that we could therefore not have an extension? Or what if we told them that we were going to have a referendum, and they then said that we could have an extension? Is the noble Lord, Lord Kerr, saying that that process of discussion and dialogue could not happen? It seems to be quite compatible with paragraph 3 of Article 50, which says:

“The Treaties shall cease to apply to the State in question from the date of entry into force of the … agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned”—


implying that there may be a range of things to be agreed—

“unanimously decides to extend this period”.

What I originally wanted to ask was this. To my mind, this amendment raises a rather more fundamental question about Clause 3(1), which begins:

“If the European Council decides to agree an extension”.


It can decide only by unanimity. Once it has decided, its decision is European law and binding upon us. There is therefore no possibility of coming back to the House of Commons and overruling that decision. We were told that in March, when the Prime Minister went to the Council and agreed an extension. When she came back, people in the House of Commons wanted to have a vote on it and were told, “You can have a vote if you like but it is law anyway”. The assurances we have been given that Parliament itself could overrule an agreement, or not agree to a decision made by the Council, if we did not like its length or any terms that might be implicit in it are, as far as I understand it, simply not true. Now, I am not a lawyer —those were my opening remarks—but if a lawyer is prepared to stand up and say that a decision of the European Council is not binding in European law, and therefore not binding on us before we have left, my objection falls. If not, we have found a very major weakness in the Bill.

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[Lord Goldsmith]

This provision was put into the Cooper/Letwin Bill very much at the insistence of the Government at the time. I am not trying to make a point against the Government—the reason for it was to preserve the prerogative of the Government to accept an amendment. At that stage it was thought possible that the European Council would offer an extension at a Council meeting and there was the question of whether the Prime Minister would be able to accept it. After consideration of that, it was put into the Cooper/Letwin Bill that the Prime Minister should in fact be able to accept. This Bill, in Clause 3(4), says again that nothing will,

“prevent the Prime Minister from agreeing to an extension”—

it does not allow him to refuse an extension—

“of the period specified … otherwise than in accordance with this section”.

So he does not have to go through the procedures if he wants to accept it. That is a way of preserving the prerogative, or privilege, of the Government to make agreements at an international level, but on that specific basis.

That is the reason for it, and it is appropriate to have it in this Bill too. The time for it to arise is limited and, if I understand correctly what Mr Johnson said about ditches, there will be no question of his agreeing to anything unless he is constrained by the Bill. So it is an interesting question and I think it is entirely academic. In those circumstances, I hope that answers the noble Baroness’s question and we can move to complete Committee.

[Lord Wigley (PC)]

Will the noble and learned Lord explain, if the Prime Minister is faced in a Council meeting with the question of a change along those lines—if there were conditions placed upon it in the meeting—how will this subsection address that possibility?

[Lord Goldsmith]

Given what the Prime Minister has said, it is not going to happen. But the prerogative of the Prime Minister is retained under this provision—as it is in the other Bill.

[Lord Mackay of Clashfern (Con)]

This simply keeps free from constraint the prerogative of the Prime Minister, notwithstanding this Bill. This Bill simply deals with requiring the Prime Minister to apply for an extension; if he manages to get one anyway, it does not matter. That is what is preserved. There is no question at that stage—if we accept the proposition of the noble Lord, Lord Kerr, about the nature of extensions—about conditions, except temporal conditions. Therefore, what the Prime Minister is allowed to do here is what, apart from this Bill, he would be able to do. This Bill is an additional requirement on him when it is activated.

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[Lord Goldsmith]

No. I want to be clear that there is no certainly commitment coming from these Benches that that is what the Bill requires. If it is passed into law, it contains those words, but it does not constrain what the extension is used for.

[Lord Rooker]

My Lords, there is not much for me to say—although, as I alluded to in the previous debate, Clause 3 is precisely drafted and subsection (4) is there to give flexibility if other circumstances prevail. I had forgotten about where the Cooper/Letwin Bill—which I started off myself in April—came from. In other words, it came from the current Government on strike saying, “Please put it in your Bill”. We are happy to agree to the Government’s original plan to have it in the Bill. The noble Baroness said that this was a probing amendment. I would be very happy therefore if she would withdraw it.

European Union (Withdrawal) (No. 6) Bill

Lord Goldsmith Excerpts

Report stage (Hansard): House of Lords
Friday 6th September 2019 Lords Chamber

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

Perhaps it would be helpful for the Committee if I said a few words about the amendment. Both my noble friends Lord Forsyth and Lord True are essentially correct, except in one important detail. I should say to my noble friend Lord True that even if the rest of the Committee does not want to hear from him, I do, because he speaks a lot of good sense on these issues.

It is true that initially, during the fast-moving events at a late hour on Wednesday evening, it was our intention to ask the House to remove this amendment. However, since then we have looked at it further. My noble friend Lord Forsyth said that the Government do not support this Bill and do not favour it. We think it is flawed and that this Kinnock amendment tries, but does not succeed, to make it even worse. The amendment is confusingly drafted, is contradictory to the aims of the rest of the Bill and its deficiencies are such that its effect is rendered pointless.

I always hesitate to disagree with my noble and learned friend Lord Mackay but my strong advice is that this amendment is legally inoperable. It appears contradictory with other parts of the Bill because it requires an extension to pass legislation to implement a deal, when, under this Bill, the extension is being sought only because no deal has been agreed.

For all those reasons, as I have said, we think it is inoperable and largely pointless. I am happy to say that it was our original intention to take it out—we had discussions to that effect and so my noble friend Lord True is correct, as always—but since then we have looked at the matter further.

[Lord Goldsmith (Lab)]

My Lords, I am grateful to the Minister for helping the Committee at this stage by explaining the Government’s position. We do not support the amendment. In short, given that the Minister has said the Government’s view is that the Kinnock amendment is legally inoperable, it does no harm to keep it in the Bill. I do not know why noble Lords are laughing because the critical point, which was made by the noble Lord, Lord Cormack, is that the Bill has to pass. We do not have time to send it back to the House of Commons given the guillotine of prorogation imposed by the Prime Minister.

[Lord Rooker (Lab)]

My Lords, in principle, the noble Lord, Lord Forsyth, makes a seductive case—in principle. The noble Lord, Lord Cormack, made the point that the House of Commons might want to look at it again. I do not see any contradiction in the fact that they have rejected the agreement three times. It is their choice—the meaningful vote is theirs, not ours—and it is a soft Brexit. It is Brexit in name only—there is no question about that. They are free at any time they want in the Commons to fix their business to do it. It is nothing to do with us because we are not part of the meaningful vote process. It is not our job to manipulate the way they organise their business on an issue that we have nothing to do with.

It grieves me that we cannot do our proper scrutiny. There is a breakdown of trust because the Government say that there will be time in the Commons on Monday to deal with this Bill. Any amendments sent down there can be amended and something in lieu can come back. Forget the idea that this is a sound deal. Trust has broken down; the prorogation guillotine is there; we have no choice. I therefore ask the noble Lord, Lord Forsyth, to withdraw his amendment.

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[Lord Forsyth of Drumlean]

Oh my goodness. I have to say to the noble Lord, Lord Rooker, for whom I have great admiration, that I am struggling with that response because the words say that a letter should be sent by the Prime Minister requesting an extension in order not just to debate but to debate and pass a Bill. He has to send a letter saying he wants an extension because he is planning to pass a Bill to implement the May agreement, which has been rejected three times—the noble Lord, Lord Rooker, is absolutely right—and put in place the results of the discussions, on which I do not have information, other than what I have read in the newspapers. That is anticipating the decisions by the House of Commons.

My noble friend Lord Cormack said that he supported the May deal and that there are many people who supported the May deal, but the May deal was rejected by the biggest vote ever in the other place. The noble Lord, Lord Brooke, made a very good point about the political agreement and having discussions. He may be right in his criticism that not enough has been done to take that part of the thing forward. Taking out this defective part of the Bill does not prevent discussions taking place.

My noble friend Lord Hamilton made a crucial point that if this provision is deficient—and everybody agrees that it is deficient—what is this House for if not to deal with those matters? The noble Lord, Lord Rooker, said there is a matter of trust. I am most grateful to my noble friend Lord Callanan for his honesty and transparency. We were under the impression that the deal agreed between the Front Benches would result in this matter being taken out—he has confirmed that—and we are now being told that it is not being taken out because the legal advice is that it would not fly anyway, so we put into the Bill something which is legally deficient; that is okay, and that is what this House has come to. We do that because we do not believe that the Government will be as good as their word when the people who were on the other side of the agreement have not been as good as their word. I hope that the Government are rather better than that. We have a duty to pass legislation which is proper. I am not a lawyer, but the noble Lord, Lord Marks, told us that it would have no legal effect whatever, and my noble and learned friend Lord Mackay of Clashfern—not Drumlean —gave us the opposite advice, so it would appear that there is at least some doubt about whether it would have legal effect.

My noble and learned friend Lord Mackay said it was not meaningless and the noble Lord, Lord Marks, said he agreed that—I hope I am not pushing too far here—it should not be there but because it is meaningless, it could stay there. The noble Lord, Lord Jones, told us that the entire country is sick to death of all of us. On that, I am sure we can all agree.

[Lord Goldsmith]

I am going to ask the noble Lord this question because he has questioned the comments that have been made about trust. In that context, does he want to comment on what the Prime Minister said this morning, which was that he will not seek an extension even if it is passed in law? Does that change his view on whether a question of trust is at play here?