European Union (Withdrawal) (No. 6) Bill

Lord Lilley Excerpts

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

[Lord Kerr of Kinlochard (CB)]

I had not intended to follow my noble and gallant friend Lord Stirrup’s remarks because he included in them an invitation to some EU constitutional experts. I absolutely do not aspire to the status of an EU constitutional expert, but what he said was absolutely correct. There are two possible statuses: one is the that of a member of the European Union, the other that of a former member. The noble Baroness, Lady Ludford, is absolutely right that there is no provision in Article 50 for qualitative conditions on an extension. Temporal conditions—the length of the extension—are possible. That is what we are talking about.

The point raised by the noble Baroness, Lady Falkner of Margravine, about the European Council decision refers to the treaty rights and responsibilities of a member, one of which is the duty of loyal co-operation. That is set out in the treaty. It would not be possible to withdraw treaty rights by European Council decision. The only way to change treaty rights is by amending the treaty, which requires unanimity, and while we are members we would presumably not vote to limit our treaty rights.

The language in the decision referred to by the noble Baroness relates to the contingency, which sadly has now arisen, that the United Kingdom is not present and voting in all committees and regulatory organisations of the European Union. The United Kingdom has voluntarily decided not to exercise some of its treaty rights. Some of these organisations operate by unanimity. If there is an empty chair there and we are a full member with full voting rights that we have not exercised, decision-taking machinery among the European Union—of which we are a member—being exercised by only the 27 could grind to a halt. That is why that language is in the European Council decision. That is why our Government, though in my view quite wrongly, has decided to operate an empty-chair policy in certain parts of the European Union organisation. They have agreed that the Finnish presidency shall exercise our voting rights as though we were there so that unanimity, where it is necessary for a decision to keep the business going, can still be reached. That is the purpose of the language of the European Council’s decision.

The key point is that paragraph 3 of Article 50 is about only temporal extensions. I say to the noble Baroness, Lady Deech, for whom I have huge admiration—of course, she is a lawyer and I am not—that I believe it is not possible to set conditions to the extension of time under Article 50. I therefore say to her and to the noble Baroness, Lady Falkner of Margravine, that both amendments are unnecessary and should not be pressed.

[Lord Lilley (Con)]

Could the noble Lord clarify whether it would be possible for the European Council to set the condition that the British Parliament, or the British Government, agree to hold a referendum? I agree that it would not be possible for it to set conditions that limited our powers within the period of membership, but surely it is possible for it to do that.

[Lord Kerr of Kinlochard]

That is absolutely out of the question. The treaty language, including in Article 50, is absolutely clear that it is for the member state to proceed under its own constitutional procedures. That is specifically spelled out, including in Article 50. The idea that the European Union would interfere in our domestic decision-taking constitutional arrangements is out of the question.

--- Later in debate ---

[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.

[Lord Rooker]

My Lords, it would appear that everybody in the House is toing and froing to Brussels. I have to make it clear that the last time I was in Brussels, when I was still a Northern Ireland Minister, on the day that the beef ban was lifted I was serving Northern Ireland beef to trade delegations to rebuild that industry. That was my last time in Brussels, so I am not party to any of the discussions.

The point about the amendment, which has been sufficiently answered in a much better way than I could do, is that it is built on an assumption about the unconditional extension of time. It would actually confuse Clause 3. Clause 3 is precise in some ways but subsection (4) gives it flexibility. It is interesting that an amendment has been tabled by the same group of people to knock out subsection (4), because that provision gives the Prime Minister the capacity to agree a different date. That flexibility and precision are built in to achieve the objectives because, at the moment, we are in an unknown area. To be honest, to add the amendment would be confusing.

I am not going to get into disputes with lawyers and drafters of legislation, but the fact of the matter is that I would take the explanation of the noble Lords, Lord Kerr and Lord Cormack, over and above legalistic nitpicking of what is quite a precise clause. In fact, when you look at the Bill, this is probably its best drafted clause.

[Lord Lilley]

Did the noble Lord notice that the noble Lord, Lord Kerr, did not come back to deny that the sort of discussions I suggested could take place, which would implicitly involve conditions?