European Union (Withdrawal) (No. 6) Bill

Lord Mackay of Clashfern Excerpts

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

[Lord Mackay of Clashfern (Con)]

I did not realise that we were coming near to winding up. I was asking what the proper time to end was: I wanted to speak near the end so that I would hear the wisdom of others rather than my own.

I want to talk a bit about the history of this matter in the House of Commons and then say a word or two about the Bill. Obviously, the question arose immediately after the referendum of whether the result should be implemented. The referendum itself did not contain, as the Supreme Court pointed out, any mechanism for implementing the result; therefore, it was for Parliament to find a way of implementing the result. The Prime Minister of the day, who took over from David Cameron, undertook to implement the result of the referendum and set about doing so, indicating principles by which she would be guided, sometimes called red lines. I want to mention one aspect of that. The customs union and the single market were particularly important, but as I understand the present rules of the single market and the customs union, they forbid a member state making contracts for trade with others. Therefore, part of the desire in the referendum was to open up trade for the United Kingdom to other jurisdictions. Therefore some modification, but only some, to the customs union and the single market was necessary.

I want to particularly mention Northern Ireland, because I believe that to be fundamental: as far as I am concerned it is the most important problem. As far as I can see, and I have tried to think about it as much as I could, it can be solved properly only by having the same basic rules on both sides of the border. If not, there is bound to be a hard border and I think I am right in saying that the European Union rules require that the boundaries of the European Union are set by hard borders. It therefore seems that if we are to leave without a deal there is bound to be a hard border in Northern Ireland. That would be a disaster, because the arrangements there are extremely tender, very important and vital to securing the peace of Northern Ireland. So far as I am concerned, that is a vital point; it has been from the beginning and remains so.

Eventually Mrs May managed to get an agreement with the European Union, and she put that before Parliament on more than one occasion. I venture to suggest that one way of dealing with that problem was that if somebody wanted to change any detail, any part or indeed the whole of that, they should put forward an amendment to the Motion to approve it. That would seem to be the reasonable way in which such a thing could be done, but so far as I know that has never happened and the only amendment to the arrangement suggested that an alternative should be found to the Irish backstop. Of itself, that does not change the arrangement. You have to answer that and find the alternative; my noble friend indicated the possibilities, and these are quite difficult to completely understand. I do not think that so far they have been completely accepted by the Government for negotiation. I sincerely hope that these matters will be brought forward if the Government are to proceed with the negotiations.

The result has been a lot of discussion in the House of Commons about various matters. The important thing to remember is that the withdrawal agreement is a legal document and has legal effect. Added to that is the political declaration. That is a document of intention, not legally binding in the same way as the withdrawal agreement, and I understood that the European Union had said it wanted the withdrawal agreement to be fixed before it had substantive discussions on future arrangements. One of the aspects of the present arrangement that Mrs May negotiated was a period of two years’ transition. That is an important safeguard against the sort of cliff edges we have been hearing described in the course of this interesting and in some ways extremely saddening debate.

The result is that nothing has really happened to change that proposal. It has been turned down, but without any explanation of how it could be improved. I honestly think that the House of Commons has lost an opportunity in that respect. Noble Lords will remember that it had some debates and indicative votes about what it wanted. Most of these indicative votes, so far as I remember, were concerned with the political declaration. Indeed, the discussions that took place after the then Prime Minister opened them up with Mr Corbyn were of that kind—that is to say, they dealt mainly with the political declaration. Agreement on that is not essential to the withdrawal. I believe it is important to try to distinguish between the two.

That brings me to this Bill. It asks that the Prime Minister should write to the President of the European Council asking for an extension. I remember pointing out—I hope humbly—when this appeared in the earlier Bill that no reason was given for the extension. Well, this Bill has a reason given for the extension, and a very interesting reason it is. It says the extension is made,

“in order to debate and pass a Bill to implement the agreement between the United Kingdom and the European Union under Article 50(2) of the Treaty on European Union, including provisions reflecting the outcome of inter-party talks”,

in relation to the political projection.

That suggests to me that the proponents of this Bill believe that the agreement that presently exists, and is the only one as far as I know, is to be implemented after it has been further discussed with a supplementary point about the political declaration. If that is correct, this Bill goes a very great distance towards securing what is required in the way of a withdrawal agreement, which is not no deal without an agreement, but an agreement that has already been passed by the European Union and which the House of Commons has dissented from so far. It looks as though this promises that it will be passed. In that sense, if I am right about that, it is quite a considerable Bill. It suggests the possibility of very substantial progress towards a deal for taking us out of the European Union. On that interpretation, I believe that a good deal of the talk that we have had about no deal is set aside by this in a direct and constructive manner.

--- Later in debate ---

[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.

[Lord Mackay of Clashfern]

Just before my noble friend sits down, could he say what he understands is meant by,

“the agreement between the United Kingdom and the European Union”,

referred to in Clause 1(4) of the Bill?

[Lord Callanan]

I do not have a copy of the Bill in front of me. Obviously we are not the sponsors of the legislation. My noble and learned friend is a distinguished lawyer, and I will decline the opportunity to clarify exactly what I think the proposers of the clause mean. It is not our Bill. I would be happy to write to him with an opinion on it.

--- Later in debate ---

[Lord Rooker]

My Lords, I am very grateful to everybody who has contributed. I am merely the messenger for the elected House because we are dealing with unique legislation from the elected Commons to try to deal with the uncertainties. I appreciate that my noble and learned friend Lord Goldsmith and the noble Lord, Lord Callanan, are probably the only two Members who have spelled out that while the purpose of the Bill is to stop us crashing out without a deal, it contains a mechanism for any Prime Minister who can pack the Commons to take us out without a deal. That is in the conditions in Clause 1. I have no doubt that that will be raised in Committee.

I have two brief points. I have picked up from the debate that it would be a very high level of political immaturity for leaders in the other place to buy an election before 1 November. It is quite clear that trust has broken down. It would be absolutely barmy.

My final point—and I am sorry that it is a bit of a domestic policy issue—is that this is a Private Member’s Bill. It is bit like the Cooper-Letwin Bill in April. At that time, because the Bill was a Private Member’s Bill, the Government Front Bench, who basically regulate the Chamber when things break down, went on strike. They removed themselves and it caused a degree of chaos in our administration. Today, we have had a Second Reading without a speaker’s list, and it has gone great because everyone could see that there was enough time to get in to speak. We have a day on this tomorrow. After the events of April, as the Member in charge of the Bill, I complained to the Procedure Committee that when a Private Member’s Bill that the Government do not agree with is in the House and the Front Bench go on strike, the power to regulate should be given to the chair so that the chair could say “That is wrong” or “This is wrong”. I have had no acknowledgement or reply from the Procedure Committee. My complaint has just been dismissed.

We are going into Committee and Report tomorrow and I have no idea about any amendments being tabled. I do not want any chaos deliberately caused by the Front Bench abdicating their responsibilities if help with regulation is needed. It is quite clear. Earlier today there were three hours when there was hardly anybody on the Front Bench. Nobody took any notice of any breaches of procedure, and there were quite a few—only one was picked up, by my noble friend. I hope that, tomorrow, the Government will live up to their responsibilities. Irrespective of whether they agree with the policy or the legislation, the Government Front Bench have the power to regulate the House. If they are not prepared to exercise it, they should give it to the chair for the day. I beg to move.

[Lord Mackay of Clashfern]

I think the noble Lord said that there would not be time in the Commons to deal with amendments and that therefore, on the whole, he would prefer not to have any. Did I pick that up correctly, or is that wrong? I would like to see the purpose referred to in Clause 1(4) in the letter.

[The Lord Speaker (Lord Fowler)]

The question has been moved.

European Union (Withdrawal) (No. 6) Bill

Lord Mackay of Clashfern Excerpts

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

[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.

[Lord Brown of Eaton-under-Heywood (CB)]

I ask the Committee’s forbearance. Noble Lords on all sides are entirely agreed that the extension which the Bill demands that the Prime Minister seek is for one purpose only—look at the Kinnock amendment in the second part of Clause 1(4)—which is to try to get something like the May deal finally agreed. Heaven knows, I strongly support it and have long suggested that it should be agreed. However, having got such an extension, it would be quite unlawful for anybody to then say, “Ah, but we must use it instead to retract the Article 50 notice”—or seek a referendum or anything like that. Are all noble Lords happy and agreed on that?

--- Later in debate ---

Debate on whether the Schedule should be agreed.

[Lord Mackay of Clashfern]

I would like to say something about that. This is the text of a letter that the Prime Minister is required to send under the Bill. If there had been time, I would have proposed that the letter included a reason. After all, it is to the European Union that the reason is to be expressed. As I understand it, the European Union says that, if it is asked to grant an extension, it wishes to have a reason. In the ordinary course of events it would be right to have the reason in the letter. Unfortunately, time prevents that happening. That would have been better, but I am sure the initiative will be sufficient for the reason to be communicated to the European Union, even though it is not stipulated in the letter. The terms of the Bill say that this is the letter, so there may be a risk in adding to it—but that may be a risk that should properly be taken.

[Lord Forsyth of Drumlean]

If the noble and learned Lord is arguing that the letter has to have a reason in it, does that not mean it is conditional?

[Lord Mackay of Clashfern]

The condition is obvious: to give the reason why you are applying for an extension. As the noble Lord, Lord Kerr, said, the important point is about time, and the EU wants to know how this time is to be taken up. That seems to me a perfectly sensible idea.

[Lord Forsyth of Drumlean]

The noble and learned Lord is far smarter at this than I am, but the noble Lord, Lord Kerr, argued that it was not possible for any conditions to be applied. So why is it necessary for us to give a reason?

[Lord Mackay of Clashfern]

It seems obvious to me that if you are asked to make an extension, you do not do it just for the sake of doing it; you have some reason for it. I do not think that the European Union, far as it may be from common sense in many respects, is so daft that it provides for an extension to be applied for with no reason on earth why it should be granted. It seems common sense to me that the reason is required and, of course, the Bill contains the reason but has just happened not to put it in the letter. I suspect that what happened may have been a copying of the previous Bill, the Cooper Bill, which did not have the reason in at all, as I pointed out at the time. This Bill is much better and includes the reason. Unfortunately, it is not so good that it has it in the letter as well but, as I say, I do not think that matters. At least, I do not think that ultimately it will matter.

As for my noble and learned friend’s question about the reason, it is quite important that the reason given in the Bill is the reason that has to be given in support of the application for the extension. I would certainly have suggested that it should go in the letter if there had been time, but I fully appreciate that there is not time and therefore we must leave it as it is.

[Viscount Trenchard]

My Lords, beside what my noble and learned friend has just said about the letter and its deficiency in not including a reason, do your Lordships not think it would be much better if it also made clear what the parties are supposed to ratify? It simply says:

“If the parties are able to ratify before this date”,


but there is no object of the sentence, so there is no object to ratify. It is clear that it refers to a withdrawal agreement—I understand that—but it is very sloppy drafting and it could be argued that it refers to the ratification of something else.

European Union (Withdrawal) (No. 6) Bill

Lord Mackay of Clashfern Excerpts

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

[Lord Jones of Birmingham]

So tolerant of democracy.

I support the amendment suggested by the noble Lord, Lord Forsyth, for one reason only: there is not a small business woman or small business man in this land who has not had it up to here with this place and the other place. They just want everybody to get on with it and give the businesses of the land—which generate the profit, pay the tax and build the schools and hospitals—the chance to get on and make money, employ people and pay tax. They hold us all in very high disregard at the moment—all of us. The political class has let down this country and business, and that is not a partisan point. We should all, of every party in both places, look into our souls about what we have done to this country in so many ways. If these people, who hold us in such high disregard, thought we spent a Friday afternoon accepting the fact that we just knocked through on the nod something factually inaccurate, they would think we were even worse than they do right now.

I thought the point made by the noble Lord, Lord Brooke, was excellent. The chance of coming together and healing—he used that word, and I thought it was excellent—has a lot of merit in it, but we surely cannot knowingly vote for something that is factually wrong. On that basis I support the amendment—I do not think it would hold up anything on Monday—but after this debacle is over we ought to go from this place and just start trying to respect the optics: the businesses, the businesswomen and businessmen, the good people of this country, have had enough of us. If we do not start communicating with them as to why we are on their side, God help us.

[Lord Mackay of Clashfern (Con)]

This amendment proposing to delete what is in the Bill strikes me as rather unnecessary, apart from the fact that we have difficulty with time. In my view, the amendment proposed by Mr Stephen Kinnock—a distinguished member of a distinguished family—was perfectly in order. The fact that, though the procedures of the House of Commons, it went into the Bill and is in the Bill we read for a second time, passed in Committee and are now considering on Report strikes me as perfectly in order. It makes the important distinction, which I tried to make yesterday, between the withdrawal agreement and the political declaration.

It has always seemed to me that the Irish backstop has the character of a future relationship. What is objected to is the fact that it is said to be permanent and so on. That is part of the future relationship, and therefore I have always felt that the backstop itself is not an objection to the withdrawal agreement as such. There may be other objections but, so far as the backstop is concerned, the aspect of it to which objection has been taken is as part of the future relationship. I would therefore welcome the idea of the House of Commons having a discussion separating out these two, which the Kinnock amendment does with complete accuracy. I do not for a minute believe that it does not make sense; it is perfectly readable and understandable, even for lawyers. In my view, therefore, this should stay in.

My noble friend says he expected the Government to object to it. The Government are not for the whole of this Bill. The whole thing is a Private Member’s Bill by a group that was not part of the Government as such. It may have included Members who were previously in the Government, but at any rate it is not a government Bill. The Government therefore do not care for it at all, so I do not know why they should have to propose an amendment to part of it. It is perfectly right that they had not done so. I understand they have been advised that it is meaningless. I do not agree with that, and I do not think anybody who reads it will think it is meaningless; it is perfectly clear what is wanted. It is the basis on which an extension is asked for.

According to the formulation of the noble Lord, Lord Kerr, no conditions are attached. However, if you apply for an extension the European Union will require a reason—which seems to be common sense—and, if you give a reason, good faith suggests that that is the reason, and therefore it promotes the likelihood that something may suddenly emerge which distinguishes between the political formulation and the withdrawal agreement, which is the vital thing to get through in time.