European Union (Withdrawal) (No. 5) Bill

Lord Hannay of Chiswick Excerpts

2nd reading (Hansard): House of Lords
Thursday 4th April 2019 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, it is always a pleasure for me to follow the noble Lord, Lord Howell, who is the chair of the International Relations Committee on which I sit. Even when I do not always agree with him in every respect, I always learn a lot from what he says.

I shall pursue my noble friend Lord Pannick’s theatrical image. Sitting here this afternoon, I had a vague presentiment that there was a similarity to the occasion when President Lincoln was assassinated at the theatre and somebody said to Mrs Lincoln afterwards, “And how did you enjoy the play, Mrs Lincoln?”. I think this afternoon’s events might have produced a pretty large raspberry to that, and I find it pretty shameful that not one of the people who kept us here all afternoon in an absolutely obvious filibuster has found the time to participate in the Second Reading of this Bill. Oh—I am sorry; I did not see the noble Baroness, Lady Noakes. I apologise. But one swallow does not a summer make.

[Baroness Noakes (Con)]

There are two swallows.

[Lord Hannay of Chiswick]

My noble friend Lady Deech did not move an amendment; nor did the noble Lord, Lord Howell. I am talking about noble Lords who moved amendments. That is what I said, and I think it is rather shameful that none of them, apart from the noble Baroness, Lady Noakes, is here.

I will support the Bill. I think that it is both necessary and urgent. I think the reasons for it are the need to send, ahead of the meeting next Wednesday in Brussels, a very clear message to our 27 European Union partners—and they are still our partners. When this Bill becomes an Act, it will send a useful message to them ahead of that meeting. It would have been much better if we could have passed it through all its stages today, but I do not believe that Monday is too late to pass a useful message, and I hope that we will do that in due course.

What is the message that we are passing? First, as other noble Lords who have spoken have said, it is that this House does not share, the other place does not share and the whole British Parliament does not share the view that no deal is better than a bad deal. That appalling mantra, which dominated the negotiations for so many months, even years, is, I think, being laid to rest by this indication—and about time too is all I would say.

The second message we are sending is that both Houses of this Parliament need more time and space to work on a new course for our relationship with the EU in future, whatever that might be. That is a useful message to send. I do not think that we ought to be too specific about how long it will take. It may be that some rather flexible formula can be found in Brussels next Wednesday to cover that, but the idea—

[Lord Framlingham (Con)]

For the sake of the record, would the noble Lord confirm to the House that he is doing all he possibly can to keep our country in the European Union?

[Lord Hannay of Chiswick]

I am sorry to say that some of the noble Lord’s friends this afternoon did not even have the courtesy to give way when I tried to speak, so I have no intention of answering his intervention, which is nothing whatever to do with what I have said. I said that we should set a new course in our relationship with the European Union.

The question of the European Parliament elections cannot be completely discounted at this stage, but I do not think that we should allow that complication to be an impediment to a longer extension of the Article 50 period. There is no harm at all to be found in our participating in those elections. Obviously, should we definitively leave after the elections, the result would not be followed through. I would be grateful if the Minister, when he replies to this debate, could confirm reports that I have seen that the Government are in fact making the necessary preparations to hold a vote on 23 May if we are still in the European Union on that date. It would be really helpful to have that point made clearly, because we could then stop fussing too much about it.

I do not think that the issue of a consultation with the electorate will go away. It is not part of this legislation and therefore I will not go into great detail about it. I will say merely that so much has changed and so much is different from what was put to the people in 2016 that it would be little short of shameful if we did not consult them again. Of course, they might give the same answer as they gave before. So be it, if that is their answer—but they ought to be given the opportunity, I hope that in the not too distant future, when there is a clear picture of what Brexit means—not just “Brexit” but what it means in detail—they will have a chance to have their say.

--- Later in debate ---

[Lord Callanan]

My Lords, as this is not, of course, a government Bill, I am sure noble Lords will be delighted to know that I can keep my remarks brief. Legislation has been debated, scrutinised and passed by this House since July 2016 to prepare for our exit from the EU, including many statutory instruments that noble Lords have scrutinised thoroughly to ensure that in any scenario, our statute book will function properly and appropriately. At the most recent count, more than 500 statutory instruments have been considered by the SLSC and more than 200 SIs debated by this House under the affirmative procedure. However, the Bill before us today in the name of the right honourable Member for Normanton, Pontefract and Castleford offers little but constitutional ambiguity and greater, not less, uncertainty. The Government strongly oppose the Bill.

I agree with many of the criticisms of the noble Lord, Lord Howarth, my noble friends Lord Howard of Lympne, Lady Noakes and Lady Neville-Rolfe, and the noble Baroness, Lady Deech. The approach to this Bill risks setting an unhealthy and constitutionally irregular precedent for this and future Governments. The noble Baroness, Lady Deech, asked me a simple question: do we need this Bill at all? The simple answer is no. Most importantly, the fundamental flaws in its drafting not only undermine what it seeks to achieve but may even increase the risk of an accidental no deal next week. I also note the Lords Constitution Committee’s report and thank it for its efforts to produce its report so quickly.

Noble Lords will recognise the ambiguity that would arise should the Bill pass, particularly regarding the royal prerogative and the long-established convention that the Government of the day lead on our international negotiations. Heads of Government are able to enter into international agreements without preconditions set by the House that constrain their ability to negotiate in the national interest. This Bill not only calls that ability into question, it does nothing to provide any clarity on what we should, in fact, seek.

The other place has consistently demanded greater certainty for businesses and for citizens. Despite this, noble Lords will no doubt be very alive to the risk that the conditions imposed by the Bill bring to life the very real possibility that we cannot agree an extension in time, a point well made by the noble Lord, Lord Pannick, by my noble friend Lord Cathcart and at the end by the noble and learned Lord, Lord Goldsmith. This is because the Bill creates a new parliamentary process whereby any counteroffer on the extension of the Article 50 period by the EU must be put to Parliament and agreed on the day after the offer is made by the EU. As we saw at the European Council on 21 and 22 March, when the original extension was agreed, it requires a request by the UK, a decision by the 27 EU member states and then agreement from the UK.

I am pleased to say that yesterday the other place approved a government amendment to the Bill to change the parliamentary scrutiny procedure that applies to an SI, amending the definition of “exit day” from affirmative to negative.

The Bill creates processes that increase the risk of us being timed out, but, even if agreement were possible in time, we would still need to ensure that any extension agreed in international law was reflected in our domestic statute book. The Government considered it prudent to seek to amend the Bill to make the SI needed for this purpose subject to the negative procedure to ensure that our statute book reflects international law.

However, I regret that the other place did not pass the amendment that the Government put forward to address the dangerous constitutional precedent set by this Bill overall. It would have protected the Government’s ability to reach an agreement with the EU on an extension to Article 50. In doing so, it would have clarified the position on the royal prerogative to ensure that nothing in the Bill would prevent the Government being able to seek and agree an extension.

The Bill therefore remains fundamentally flawed. It could tie the hands of the Government and bring about a situation contrary to the purpose expressed by its movers. This legislation is not a sensible or desirable approach to take and I urge noble Lords not to support it.

[Lord Hannay of Chiswick]

Before he sits down, could the Minister answer two questions? I asked the first earlier, and I would be grateful for an answer. Have the Government taken the necessary steps to prepare for a European election should the extension go beyond 23 May? Secondly, I found missing in his remarks any recognition that the elected House had actually taken a decision—that it had adopted this Bill and sent it to us. If we adopt it on Monday, is he seriously saying that the Government consider themselves to be somehow above decisions taken by the two Houses? If so, that is a very peculiar constitutional suggestion.

[Lord Callanan]

Of course we do not. I can answer both his questions with the same statement. The Government will abide by the law of this country in all circumstances—both European Parliament election law and any law made by this Parliament—in the appropriate fashion.