Business of the House

Lord Goldsmith Excerpts

Wednesday 4th September 2019 Lords Chamber

[The Lord Bishop of Leeds]

My Lords, I strongly endorse what the noble Lord has said. It seems to me that we have to be realistic. I speak as a Lord spiritual with an obligation to engage in what was called “high politics” earlier, as a Member of this House, noting that the Lords spiritual cannot be whipped and that we are not a party. It seems to me that we have to be realistic and say that this prorogation has been disingenuously propagated as being just a little extension to recess, when we know that it is of a completely different order. We have prorogation on one side and these procedural objections about closure and guillotine over here. The reality is that we are going to carry on with the sort of spectacle we have had thus far unless the Front Benches come to some agreement and conclusion. It would be grown-up to do that. I do not suspect, from what I am hearing, that anyone in this Chamber wants to spend day and night going through these Motions to achieve very little other than irritation, so I add my endorsement to what the noble Lord has said and encourage the Front Benches to do as he requested.

[Lord Goldsmith (Lab)]

My Lords, from this Front Bench I thank the noble Lord, Lord Cormack, for what he said, which was in good tone and wise. The important thing is that he called on both Front Benches. Noble Lords will recall my noble friend Lady Smith, the Leader of the Opposition, saying at the beginning of the debate that if we could be clear that the Bill could get through in time—that means before prorogation, because otherwise we know what would happen—then she did not see her Motion as necessary. I am not in a position to make promises on her behalf and certainly not in a position to say anything about general elections—that is way above my pay grade—but on the point about whether the Front Benches can agree a business Motion, as it were, to get the Bill through in time, that is something that I understood my noble friend to say she would welcome. At that time, the Leader of the House was saying something different. I am not going to put her on the spot, but if we knew that both Front Benches were saying that, that would be a very different matter and it would be welcomed by the House. I understand the House and the noble Lord, Lord Forsyth, to be accepting the proposition of the noble Lord, Lord Cormack. I am not going to say anything more, since I cannot, but I give way to the noble Lord, Lord Forsyth.

[Lord Forsyth of Drumlean]

The noble and learned Lord is being very constructive, but he has left out the key point. There needs to be a commitment from the Opposition that they will allow the Prime Minister to take his case to the country. I find it quite extraordinary that the Opposition do not want to fight a general election.

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[Lord Goldsmith]

I have made it very clear that this is way above my pay grade, but I understand that what has been said is not that we are against a general election but that we are against a general election before the Bill has passed and we have clarified the position in relation to the possibility of crashing out without a deal. I am not going to say anything more, because some of this may be taken as an official statement from the Labour Party, which it is certainly not.

[Lord True]

I will not ask the noble and learned Lord to go further, but the fundamental point is that we cannot do the whole thing in this House. I endorse fully what has been said by others. We should have an arrangement and understanding between the three parties. It has also to involve the Front Benches in the other Chamber. If that can be achieved, that would be a good way to proceed.

[Lord Naseby]

My Lords, I speak as a former Chairman of Ways and Means and Deputy Speaker who took the Maastricht Bill in another place. I remember meeting opposition spokesmen across all parties in my room as Chairman of Ways and Means and discussing that Bill. There is nothing to prevent discussions on a Bill taking place, but the Motion before us this evening is not really necessary for a subsequent Bill, the likes of which we do not know in any detail. The noble and learned Lord opposite shakes his head—perhaps he does know, but I do not, and I am quite sure that 90% of Members here do not, either.

We have already passed an amendment that this House will in the future have the opportunity to guillotine any Bill that comes. I take some objection to the Liberal Whip insisting from a sedentary position on putting the Question when a privy counsellor gets up. He must have known, or should have known, that I took the Maastricht Bill—all 26 days of it, all three whole-night sittings and all 600 amendments. The noble Baroness shakes her head, but that was quite a long Bill—but at least there was no filibustering on it. There was a lot of discussion. There have been subsequent Bills on Europe which have been much shorter.

None of us here this evening has any idea what is in that Bill. So I put it to this House that it is up to the two Front Benches to get together, talk about the Bill that is coming and, when it comes, reach some agreement. However, to change the whole procedures of the second House for a Bill that the country as a whole is divided on is not a procedure that should be welcomed by anyone. I look at the amendment that my noble friend has moved. Are we really saying that we will get rid of all the Standing Orders on how we operate in this House? That these notices, where you have precedence of notices of orders relating to public Bills, measures, affirmative instruments, negative instruments and reports from Select Committees of the House, can be varied on any day if the convenience of the House requires it—are we going to throw those procedures out of the window in the future? That cannot be a sensible way forward.

I say to noble friends on all sides of the House, and to the noble Baroness in the Chair, that I sat in the other place when a great argument was taking place. Good decisions were made in the end. This evening we should forget about this Motion. It is a pariah of democracy and, quite frankly, should not have been put forward. I understand the emotion behind the Labour Party putting it forward. I sat in a marginal seat with majorities of 179 and 142, so I do understand these things. So I ask the two Front Benches to come together and say, “Right, we’ll pull this Motion on condition that there is discussion on the future Bill”.

[Lord Goldsmith]

To be clear, is the noble Lord proposing this on the basis that there will be an agreement to get the Bill, when it has actually been published, through in time before Prorogation? If so, that is very helpful.

[Lord Hope of Craighead (CB)]

I will just make my position clear on behalf of these Benches in returning to the point made by the noble Lord, Lord Cormack. I am very much in sympathy with the points made by the right reverend Prelate the Bishop of Leeds. All I will say is that I am willing to play my part as the leader of these Benches in trying to reach an accommodation as to how we resolve these proceedings without having to go through all the amendments one by one. However, I stress that this will happen only if those on the Government Front Bench are prepared to engage with, no doubt, the Bishops’ Benches, myself and the Opposition. It will not work without the willingness of the Government Front Bench.

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Earlier, the American states had joined together to forge a new democratic identity in a rather similar way. The world flocked to the United States to become American and to find wealth. The rights of states were set out with admirable clarity in 1791 in the 28 words of the 10th Amendment to the American constitution. It was not until 200 years later, in the EU Maastricht treaty in 1991—30 years after the signing of the treaty of Rome—

[Lord Goldsmith]

I understand the points the noble Lord is making, but the amendment proposed is to add some words to the Motion to make a political statement that can be made without that appearing in the Motion. I wonder whether the noble Lord might agree that it does not advance the debate in this House to consider the addition of these words. We should be considering whether the House will finish consideration of this Bill, when it arrives, by the end of Friday. That is the real point before us. I wonder whether the noble Lord would agree that that is what we should be considering.

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[Baroness Noakes]

A great start, but not necessarily the finish, to getting the right balance in your Lordships’ House. I believe that this House and the other place need to think very carefully when acting so out of line with the result of the referendum. Through that referendum, Parliament ceded control of the decision to the people—the people are the ultimate source of authority in the country—but has been trying ever since to take it back, both in this place and the other place. We run the risk of doing serious harm to the institutions of Parliament.

[Lord Goldsmith]

My Lords, the issue before the House is whether or not to agree the amendment moved by the noble Lord, Lord Marlesford. I suggest first that the noble Lord withdraws it, but I suspect that that is not going to happen, and, secondly, that the House does not accept the amendment. The reasons are those that have been given already. It does not add to the point about the programme Motion, which says that the Bill, if it reaches us, should be dealt with in accordance with a procedure which would give two clear days for it to be dealt with. I respectfully suggest, as was the point of my intervention on the noble Lord, Lord Marlesford, that it is not helped by adding this statement, whether ironic or political. The real question ultimately is whether or not the programme Motion should be agreed. On that basis, I invite the noble Lord to withdraw the amendment. If not, we will oppose it.

[Lord True]

Does the noble and learned Lord not think that the public are entitled to understand what the motivation is? Is he unhappy about the lending of the girdle of honesty by this amendment to the motivation for the Motion before us?

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[Lord Goldsmith]

The motivation is very clear and has been clearly expressed. What we are trying to avoid is a situation in which the United Kingdom crashes out of the European Union without a deal. That is what the Bill, which has been published, does. It requires that there should be either a vote of the House of Commons approving exit without a deal or an agreement that is approved. That is what it does, and the British people can see that. No doubt the noble Lord and others might say that there is a different reason for it. They are fully at liberty to make that point however they want, but it does not need to be stated in legislation.

[Lord Framlingham]

The noble and learned Lord used the words “crashes out”, which is the slogan of remainers, day after day, everywhere you look. Does he accept that “crashing out” is an opinion?

[Lord Goldsmith]

I am not going to engage in this debate; we have had it so many times. We have seen it so many times in predictions, and most recently in the Yellowhammer report. Whether or not the noble Lord likes my language, I am making the point that this amendment should not be accepted. That is what I invite the House to do.

[Lord Cavendish of Furness (Con)]

The noble and learned Lord talks about the feelings of the people. Something I want to endorse from my noble friend’s intervention is that, since 1910 or thereabouts, your Lordships’ House and the people have walked hand in hand. “The Peers and the people” has been an expression that had real meaning. I fear that that is not the case any longer and my impression, as an inhabitant of the north-west of England, is that people are beginning to question the point of your Lordships’ House if it ceases to be on their side. This particular Motion would put paid for ever to the respect that this House has among the people.

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[Lord Marlesford]

I very much echo what my noble friend says. It is a disgrace that the closure Motion is constantly moved, and on one occasion—after the brilliant speech of the noble Baroness, Lady Deech—before anybody else had any chance of commenting. The Liberal Benches did it; they have not apologised and they should. Then, to make it all worse, the noble and learned Lord, Lord Goldsmith, took it upon himself to tell me what I should and should not say in my speech.

[Lord Goldsmith]

I may have given the noble Lord advice, but I did not expect him to take it.

[Baroness Noakes]

Noble Lords should have got the understanding that we are not trying to debate the Bill but the Motion, and therefore the mechanism of achieving the Bill. We do not believe that it is right and proper to use the guillotine Motion. We believe that the House should look at that extremely carefully before ever contemplating it. To come back to my amendment—I am sure noble Lords opposite would like me to return to my amendment, although I am happy to take any other interventions—

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[Lord True]

I made my comments on Sir John Major’s action in a speech in this House a month or two ago and I do not need to repeat them. I am trying to avoid referring to these proceedings, perhaps unwisely. If the noble Lord, Lord Warner, wishes to google “Major” in my speeches, he will find my opinion of some of the actions we have seen lately.

I do not want to prolong this speech. I am just interested to know how the Opposition, which is leading and pressing on this, sees this range of legal actions fitting in to what it plans and proposes. They are purporting to run the business of our House. Have they given any consideration to what may be happening in the law courts? As I have said, that is where the power is. We do not have the power. In a spirit of inquiry, perhaps the noble and learned Lord, Lord Goldsmith, will tell us whether he has given any consideration to any litigation. He has certainly referred to the Scottish matter in putting forward this draconian guillotine.

[Lord Goldsmith]

As the noble Lord invites me to speak, I have a question for him. I notice that there are three amendments—one relating to the English courts, one relating to the Scottish courts and one relating to the Northern Irish court—all in his name. All are otherwise identical with the same principle—do we consider the Bill before that litigation has concluded? Does he intend that those should all be dealt with separately, one after the other, taking the time that that undoubtedly will? If that is what he intends, does he not agree that is a clear case of wasting the House’s time and delaying getting on to the legislative business?

[Lord True]

That is an extraordinary intervention from the noble and learned Lord. I try to avoid lawyers as much as possible. As human beings, I regard them as friends, but as professionals I try to avoid them. I thought that the English court system, the Scottish court system and the system in Northern Ireland were separate systems and they went on separate tracks. There is a separate political establishment in Scotland as well. The litigation in Scotland has been concluded whereas in England, as I understand it, it has not been started. I am amazed that a lawyer of the experience of the noble and learned Lord, Lord Goldsmith, can come to this House and suggest that three jurisdictions and three separate tracks should be wrapped into one. It is perfectly legitimate to inquire of him and the Opposition whether he has any regard for the other jurisdictions. Perhaps he is not interested in the results in Scotland because the case has not come out in the way that he wanted. Perhaps he does not want my noble friend Lady Noakes to talk about it. I do not accept his criticisms.

I do not know whether the noble and learned Lord was in his place earlier when we were trying to come to a point when we did not need to do this. The only reason we are here is because an exceptional, unprecedented, draconian, repugnant guillotine Motion was put down. Those opposite have the power. The only power that the minority have in Parliament is the power to resist; we still have that freedom. The right of Members to put down amendments is precious in this House and should not be criticised. The impatience of power which one hears from the noble and learned Lord, Lord Goldsmith, is unattractive, however charmingly he puts it, as he always does.

For my part, I am totally unrepentant, but I cannot speak for others. I hope there will be an agreement and do not believe that this is the way to do business in the House. In any conflict, everyone says, “They started it”, but in this case, they did start it. Any extreme action provokes a counterreaction, and the counterreaction here is to defend the liberties of this House. The moment that the noble and learned Lord, Lord Goldsmith, stands up to withdraw the guillotine Motion, I will scrub every amendment in my name. I cannot speak for others, although I see my noble friend Lord Forsyth nodding, because it is entirely down to them. Until then, we will advocate and speak for those freedoms. Perhaps we could be enlightened on how the Opposition, who are leading this, view the interrelation between the court cases and what they are doing on this Bill. I beg to move.

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[Lord Strathclyde]

My noble friend has moved his amendment. It would be normal, when discussing an amendment to a major Motion, for somebody from one of the Front Benches to reply to him. In this case, the Motion was moved by the noble Baroness the Leader of the Opposition, so one would assume that someone from the Front Bench would wish to intervene. They do not have to but it is entirely normal practice. It adds to the flavour that something ugly is happening in this House when the Opposition refuse to interact in the debate. I put this to them: suppose that, on another occasion, there is a Bill before the House sponsored by the Government and noble Lords opposite make impassioned speeches and my noble friends on the Front Bench simply sit there, happily. Would that be okay? I assume that it would. For those reading this in Hansard, Members of the Opposition are nodding their assent.

[Lord Goldsmith]

I am surprised. The noble Lord, Lord Strathclyde, who I admire enormously, heard the intervention I made on the noble Lord, Lord True, which made it very clear what the position is on this amendment. It is a filibustering amendment, which is shown by the fact that the same amendment is proposed to be made three times.

[Lord Henley (Con)]

The noble and learned Lord says that the same amendment has been put down three times. As my noble friend pointed out, the amendments deal with three completely separate jurisdictions. If the noble and learned Lord opposite is not prepared to answer the various questions put by my noble friend, obviously he will have to come back to this again and again, as he has the opportunity to do when we come to the later amendments. It might actually speed up the process if the noble and learned Lord took the trouble to answer some of the points that my noble friend has made. In that case, when my noble friend gets to those later amendments, whenever that may be, he might not feel it necessary to intervene on them. It would assist the House if the noble and learned Lord gave us the views of the Opposition Front Bench on this amendment.

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[Baroness Noakes]

My Lords, Amendment 2E in the name of my noble friend Lord True was going to be moved by my noble friend Lord Forsyth. However, as our business has not progressed as quickly as we expected, he is on his way to catch the sleeper train to Scotland. I can tell that the House is disappointed that he is not taking part in dealing with this amendment.

I am pursuing what my noble friend Lord True started with the previous amendment: trying to find out how those who have tabled this Motion see the interaction between it and the proceedings taking place in the various courts mentioned. My noble friend Lord True dealt with the English court action. Amendment 2E deals with the proceedings relating to Prorogation in the Scottish courts.

The temporary interdict, as I think it is called in Scotland—those of us who learned our law elsewhere call it an injunction—was not granted. We had Lord Doherty’s judgment today. He said:

“This is political territory and decision making which cannot be measured against legal standards”.


He also said that accountability should rest with,

“parliament, and ultimately the electorate”.

From the point of view of those initial proceedings—this was in response to those taken by a number of MPs and noble Lords—that seems to be settled. However, as I understand it, there is a possibility of that decision being appealed.

Putting it more directly to the noble and learned Lord, Lord Goldsmith—who I believe is answering on the Front Bench at the moment—since the original action has now been settled against those seeking an interdict, if the decision is appealed and it is determined that Prorogation should not take place, does that affect how the Motion is put together? Given that many noble Lords said earlier today that they believed they were forced into this action because of the nature of Prorogation, it seems to me that the need for this Motion falls away if Prorogation falls away.

These amendments have been drafted to establish the interconnection between the Motion and whether Prorogation is allowed to remain in place or is defeated by the various legal actions. I am trying to find out Her Majesty’s Opposition’s position on this from the noble and learned Lord, Lord Goldsmith. I beg to move.

[Lord Goldsmith]

My Lords, it is hard to resist an invitation put by the noble Baroness, Lady Noakes, but the position is quite straightforward: legislation is one thing, litigation is another. At the moment, Prorogation is going to take place; no court has said that it will not. In those circumstances we are faced with the ultimate guillotine, if your Lordships like, of seeing the business in this House stopped. That is why we want to agree the Motion moved by my noble friend Lady Smith of Basildon: to make sure this House has a full opportunity to deal with the Bill, which has now arrived from the other place. It arrived during the debate and we will, we hope, be taking it. As it stands at the moment, as I said, Prorogation will take place.

[Lord Strathclyde]

The noble and learned Lord helpfully mentioned the Bill that has just arrived from the House of Commons. Can he or a member of the Front Bench tell us when it will be published in the form in which it was passed by the House of Commons, so that we will be able to look at it, table amendments to it and see whether indeed any amendments were made to it in the House of Commons?

While I am on my feet, I will share an interesting thing that has happened. The noble Lord, Lord Foulkes of Cumnock, who adorns the Back Benches on the other side, used to be my Member of Parliament. I remark that this is the first time I can ever remember that the noble Lord has not spoken on a matter to do with Scotland. I hope this is the shape of things to come.

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If we are suddenly going to change Standing Orders, it is not unreasonable that the House should have it explained why this change is necessary, what effect it might have and what the advantages and disadvantages are. That has not yet been done. It is not unreasonable that that should be done now. The House should have it explained why this change is required, as it would be deeply inconvenient to have changes where none of us really understood what they were for or why they were needed without having them explained. We should be reasonably confident that they are for the better management of business in this House and not to the detriment of it.

[Lord Goldsmith]

My Lords, when my noble friend Lady Smith introduced the Business Motion this morning, she explained that the purpose behind it was to ensure that the House would have adequate time to consider the Bill, which has now arrived from the other place. To do that, certain things needed to be done, including making sure that other business could not be slotted in to displace your Lordships’ consideration of the Bill.

Time, as we all know, is short. The reason it is short is that we have Prorogation hanging over us. We believe that we cannot afford to find a situation in which this House cannot complete its consideration of the Bill, which has come today from the other place. To do that, the Bill needs to take priority over other business. We need to make sure that we can get through the different stages. Amendments are put down and there needs to be time. To ensure that that can happen, one thing that has to be done is making, for the purposes of this Bill and in these circumstances, these changes to the Standing Orders. That is the purpose behind the Motion. I hope that that helps the noble Lord and the House.

[Lord Cavendish of Furness]

My Lords, I regret to say that I feel the noble and learned Lord has been negligent, and not for the first time today. Surely, as my noble friend Lord Mancroft has said, it is only reasonable to explain the rationale for a part of the process. Again, the noble and learned Lord has failed to do so, so the House needs to look for a proper explanation of this part of the Motion.

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[Baroness Noakes]

My Lords, I had already arranged with my noble friend Lord True that I would speak to Amendment 2K. It is similar to Amendment 2J, which I moved on behalf my noble friend. It relates again to Standing Order 40. Paragraph 1 of the Motion tabled by the noble Baroness, Lady Smith, dispenses with Standing Order 40(3) to 40(9). This amendment would dispense with Standing Order 40(3) and 40(5) to 40(9) but would leave in place Standing Order 40(4), which says:

“On all sitting days except Thursdays, notices and orders relating to Public Bills, Measures, Affirmative Instruments and reports from Select Committees of the House shall have precedence over other notices and orders save the foregoing”.


As I said when I moved the previous amendment, we should play around with Standing Orders only when it is absolutely necessary. I do not think that we had a convincing explanation from the noble and learned Lord, Lord Goldsmith, as to why these parts of Standing Order 40 have been chosen to be dispensed with to speed up the Bill that has come from the other place.

Standing Order 40(4) says that,

“On all sitting days except Thursdays”,

these notices and orders are important. Of course, the Motion relates only to Thursday and Friday, which is not a normal sitting day. It is open to question why the preparers of this Motion have decided to eliminate Standing Order 40(4). We should override Standing Orders, which are there to help us to do business efficiently and properly on a regular basis, only when we completely understand why they are being removed. Amendment 2K is designed to ensure that Standing Order 40(4) remains intact despite the Motion proposed by the noble Baroness, Lady Smith of Basildon. I beg to move.

[Lord Goldsmith]

My Lords, the answer on this amendment is the same as that on the last amendment. The Motion tabled by my noble friend Lady Smith of Basildon has been drafted to ensure that this House will have the maximum time to consider the Bill that has come from the other place if the Motion is passed and be able to complete the Bill before Prorogation. The need to avoid that problem is at the heart of all this. Those who are experienced in the procedures of the House know that there are ways in which time can be taken and things can be undermined so that the House will not have the time to consider the Bill. That is what this is all about.

I have to say to the noble Baroness that this is no different from the previous amendment. She has seen what the House thought of that. It was rejected overwhelmingly. In those circumstances I respectfully suggest that the noble Baroness have the courtesy to accept that that is what this House will do on this amendment—and indeed the subsequent amendments which are in exactly the same form—and withdraw it.

[Baroness Noakes]

My Lords, I understand that the noble and learned Lord, Lord Goldsmith, wishes to curtail discussion on this Motion. However, I do not think that he has explained why we should dispense with Standing Order 40(4) and I wish to test the opinion of the House.