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.