Business of the House

Lord Newby Excerpts

Tuesday 26th March 2019 Lords Chamber

[Lord Forsyth of Drumlean]

That comes from the author of Article 50; he has a brass neck. It may sound like a pedantic point, but at the other end of this building, the House of Commons has now become the Executive—or, at least, it will be tomorrow. If the House of Commons is now the Executive, how does Parliament hold the Executive to account? The responsibility lies in this unelected House if the House of Commons has now become the Executive.

Although we have no written constitution and I have never been in favour of our having one, I am beginning to change my view. Our constitution consists of all these little rules and conventions. If we no longer have collective responsibility in Cabinet or people respecting the Standing Orders of this place and the other place, and we have a Speaker who behaves in a way that is unconventional by the traditions of the other place, our constitution itself is being undermined. My noble friend Lord True makes a really important point: we have to respect our Standing Orders because that is what lies between us and tyranny. It is absolutely essential that we take account of that.

I cannot resist making one point. I put down a Written Question, which was answered by my right honourable and noble friend Lord Young of Cookham, asking how many times the Prime Minister had told the House of Commons that we would be leaving the European Union on 29 March. Like every other Question, it is best to know the answer before you ask it, but I was not sure of the answer. I knew it was more than 100 times. The reply I got back was that this information is not collected centrally. I do not blame my right honourable and noble friend for that Answer—I suspect it was written elsewhere—but it is very important that the Executive remain accountable to Parliament. My noble friend Lord True makes a very convincing case. While we have such disorder at the other end of the building, it would be very good if we could maintain our traditions, respect our Standing Orders and operate in a civilised manner that sets an example to the other place.

[Lord Newby (LD)]

My Lords, over recent months a number of quite extraordinary claims have been made about the consequences of actions relating to Brexit. The claim of the noble Lord, Lord Forsyth, that all that separates us from tyranny is whether we take this statutory instrument before or after a committee has expressed a view on it seems up there with the most extraordinary.

This House has been considering statutory instruments that are some 650 pages long. In this case, we are looking at a statutory instrument that is of minuscule length, the meaning of which is absolutely clear and the purpose of which is not disputed by anybody. Therefore, it seems that if ever there were a case where we could do without the normal rules with no jeopardy to the future of the state, this is it. Who in this House thinks we will not pass this statutory instrument? Who thinks that there is any ambiguity in its wording? The sooner we have certainty on a whole raft of Brexit issues, the better. This is one straightforward, easy bit. I suggest we deal with the easy bit tomorrow and then start worrying a bit more about the harder bits.

[Lord Pannick (CB)]

My Lords, I support the Motion in the name of the Leader of the House, but when she moves the Motion tomorrow relating to the substance of this statutory instrument, could she address a question not of tyranny, but of legality? A number of lawyers have expressed concern about the legality of this statutory instrument. The concern is that it sets out two alternative exit days: 12 April or 22 May. The power of Ministers to vary exit day is contained in Section 20(4)(a) of the EU withdrawal Act 2018, which says that a Minister may by regulations,

“amend the definition of ‘exit day’ … to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom”.

The legal concern which some lawyers have expressed is that a power to specify the day and time when the treaties are to cease to apply is not satisfied by identifying two possibilities; it is not possible, if this SI is enacted, to identify exit day simply by reading it.

I emphasise that I am not adopting this argument but simply drawing attention to it. I ask the Leader, before tomorrow, to consider this point; to consult, if necessary, with the law officers; and to give an assurance to this House that the Government have considered the point and are satisfied that this statutory instrument is a valid one. Whatever one’s views on the politics of this difficult situation, I hope we can all agree that it would be complete disaster to adopt an invalid statutory instrument on such an important point.