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

Lord Keen of Elie Excerpts

Wednesday 27th March 2019 Lords Chamber

[Lord Warner]

I thought that we were discussing the statutory instrument, but this is rapidly turning into an angst and confessional session for the Conservative Party. I wonder whether we might move rather more promptly to the Front Bench to reply on behalf of the Government.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am greatly impressed and relieved that so many Members of this House have expressed an interest in the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019. It appears to have taken us rather more than an hour to arrive at the conclusion that we are all in favour of the instrument and that we understand its purpose and the requirement to ensure that the domestic statute book is not left in disarray—because we are not anarchists and we do not wish to invite anarchy upon our heads.

I will say little about the instrument itself, but I will address some of the points that have been raised by noble Lords—albeit that I do not intend to be drawn into issues about conspiracy theories or about the shape of any party, because it is a case of country, then party, rather than party, then country. Furthermore, I simply wish to draw together the contributions that have been made.

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[Baroness Hayter of Kentish Town]

I just wondered whether the noble and learned Lord was speaking on behalf of the Government, who were threatening that we should be leaving the day after tomorrow with no deal.

[Lord Keen of Elie]

When I am at the Dispatch Box, I always speak on behalf of the Government; that at least is my understanding. I am addressing not the matter of the policy of the Government, but the matter of the amendment and where it would lead us. On that, my respectful view is that it would be a wholly reckless course of action for this House to adopt. I invite noble Lords to consider very carefully the precise terms in which it has been expressed.

The noble Baroness, Lady Ludford, raised a number of issues about the position of the ECA and the matter of its repeal, in the context of the statutory instrument. Indeed, this touched upon points then made by the noble Lord, Lord Pannick: that the 2018 Act had been enacted but a number of provisions had not yet been commenced, having been deferred from Royal Assent. I accept that his analysis of the commencement provisions is, as I understand it, entirely accurate. In particular, there has been no commencement provision in respect of Sections 1 to 7, albeit that there has been commencement provision in respect of a number of other parts of the Act.

I confess that this can lead one into difficulty; certainly, it led me into difficulty on an earlier occasion in this House when I observed, in response to a question from the noble Lord, Lord Anderson of Ipswich, that the provisions with regard to European elections were repealed because that is expressly provided for in the 2018 Act—without appreciating that those provisions had not been commenced. I have some sympathy for the need for a detailed analysis of what has been commenced and what has not. That said, I want to be clear that the reason for not commencing Sections 1 to 7 is that as a general rule such commencement provisions are brought in only as and when the relevant statutory provisions are going to be required, and it is not for the reason suggested by the noble Lord. Nevertheless, I acknowledge that any withdrawal agreement Bill may amend the withdrawal Act provisions with regard to retained EU law to reflect what is or may be agreed in a withdrawal agreement. Therefore the withdrawal agreement Bill may well address a number of features of the existing 2018 Act.

A number of noble Lords, including my noble friend Lord Robathan, alluded to the Prime Minister having expressed the opinion on a number of occasions that we would leave the EU on 29 March 2019. However, as I believe Keynes once observed, “When the facts change, I review my opinion. What do you do?” In light of the facts having changed, it is hardly surprising that that opinion has changed.

A number of noble Lords, including the noble Baroness, Lady Ludford, asked whether the European Council determination was a matter of EU law. It is a decision under EU law but, obviously, one that is recognised at the level of international law. It is therefore a matter of EU law, as an expression of determination that is recognised by Article 188 of the Treaty on the Functioning of the European Union as binding upon any member to which it is directed, but is also a decision of determination that would be recognised at the level of international law. That is why, although we have agreed these dates at the level of international law, having regard to the duality principle we have to ensure that they are also recognised and implemented at the level of domestic law.

There were a great number of other observations but perhaps I can touch upon just two. First, my noble friend Lord Forsyth suggested that this Government had achieved the impossible, and I am obliged to him for his suggestion that we are capable in that regard. Nevertheless I would have to draw back a little from that proposition, which he mentioned in the context of the functioning of the Joint Committee. The point that I simply make is that it is not for the Executive to direct these committees on how they function and discharge their functions. As it transpired, that committee very helpfully, readily and appropriately brought its proceedings forward, but it was not for the Executive to try to bind it to do so.

[Lord Forsyth of Drumlean]

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

[Lord Keen of Elie]

Again, I am very pleased at my noble friend’s acknowledgement that we have achieved something that was otherwise regarded as impossible. It is encouraging that we have such support, at least from our own Benches. [Laughter.] Those opposite are the Opposition, not the enemy. We must do something about knife crime.

Secondly, the noble Lord, Lord Adonis, repeated, as he has done often before, his uncompromising advice on what we got wrong and how to put it right—but on this occasion he did it, as he said, with humility, so some things are beginning to change. The other observations that were made in this invigorating debate really had nothing to do with the instrument or with the Motion that has been tabled. I therefore shall not pursue them at this time of the evening.

I finish by begging to move that the instrument should be approved and again encouraging noble Lords to look carefully at the precise terms of the Motion that is to be moved by the noble Baroness, Lady Hayter of Kentish Town. We cannot have a situation in which the Executive are purportedly bound to any Motion that has not yet passed in the Commons. That way lies chaos, which is the one thing we do not need at this point in time. I am obliged to noble Lords.

[Baroness Hayter of Kentish Town]

That is not fair. How can I follow that? I will say two things to the noble and learned Lord, Lord Keen. He mentioned Robert Peston; of course, when I first came here, his father Lord Peston was sitting behind me. I think he would have enjoyed today’s proceedings, maybe for all the wrong reasons.

I should also say to the noble and learned Lord that using the example of the Baron amendment, which called for a no-deal exit, does not come across well from a Government who have been threatening that we would leave with no deal the day after tomorrow. New paragraph (b) in Regulation 2(2) of the statutory instrument still says that we could leave without a deal at 11 pm on 12 April. That was probably the wrong example to use.

We had some interesting interventions on my amendment from the noble Duke, the Duke of Wellington, and the noble Baroness, Lady Ludford, who reminded us that this was an ideological choice at the beginning. The noble Lord, Lord Hannay, reminded us about the cost of all this, as did the noble Lords, Lord Hamilton and Lord Robathan. From the feed coming through, I understand that the Prime Minister’s resignation will be dependent on getting the deal through, in which case the Conservative Party leadership contest will start on 22 May. I am already hearing about all sorts of cabals going on, but that is not for us.

There were interventions on the SI itself, rather than my amendment, from the noble Lords, Lord Forsyth, Lord Pannick, Lord Warner and Lord Cormack, the noble Viscounts, Lord Ridley and Lord Waverley, and my noble friend Lord Adonis. The noble Lord, Lord Framlingham, also spoke. He told us that he is normally an optimist, but is now nearing despair. In an earlier debate—I think it was when we were doing the Bill—we had Hope, Pannick and Judge. As the hope is rather fading, we are closer to the panic than we were at that stage.

I think my amendment has provided an opportunity for the House to express its concern about the chaotic way we got here and where the blame lies. Even if there was not complete agreement on the last bit of the amendment, I think it served its purpose in allowing the House to express its views, without having to divide. I beg leave to withdraw the amendment.