European Union (Withdrawal) (No. 6) Bill

Lord Rooker Excerpts

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

[The Earl of Courtown (Con)]

My Lords, the Minister for Exiting the European Union is at an important meeting at the moment but will be joining us.

[Lord Rooker (Lab)]

The reality is that this is private Member’s business and the Government Front Bench is on strike again, as I said at the end of yesterday’s sitting. It is as simple as that. That is what it is all about.

The noble Lord, Lord James of Blackheath, made a very important speech, which we listened to with care and attention. He raised a lot of serious and important points, but I turn to the nub of his amendment, which is what we are here to deal with. I think we can be guaranteed that almost any potential Prime Minister will seek to ensure that the sovereignty of the UK is preserved, as it has been all along. Therefore, the noble Lord’s amendment would not really add to the Bill and, with respect, I ask him to withdraw it.

[Baroness McIntosh of Pickering (Con)]

Perhaps the noble Lord will permit me to speak, because my noble friend Lord Hailsham brought up a very pertinent point that I raised at the end of what I realise was quite a long speech yesterday. If our Front Bench is not to reply, I cannot comment, but I find it very unsatisfactory that we could be in a position where my own Government apply for an extension and then, in the course of that process, vote against it. I would like a categoric assurance from our Front Bench today that that will not happen.

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[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?

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[Lord Rooker]

I did note it but I have no comment to make on it.

[Lord Kerr of Kinlochard]

I do not think it is for me to comment on discussions in the European Council. Like the noble Baroness, Lady Ludford, I do not know what happened when President Macron argued for a shorter extension at the last European Council. It is perfectly possible that dialogue with the British Prime Minister might take place, but what is not possible is that there could be a conditional extension. The extension would be unconditional because that is what the treaty says, or rather the treaty contains no powers for imposing a conditional extension.

[Lord Rooker]

That being the entire point, I invite the noble Baroness to withdraw her amendment.

[Baroness Deech]

My Lords, much more heavy weather has been made of this than I intended. I have a couple of opening comments: it is a pleasure to see the noble Baroness, Lady Falkner, over here, and I say to the noble Lord, Lord Kerr, that those who draft law are not thereafter charged with interpreting it. Once they have launched their draft, it is over to others to interpret it. I do not claim by any means to be a European lawyer—far from it—but my point is very simple: if an extension is granted to 30 January, the Commons gets two days to consider it. If an extension is granted to 31 January, it gets no time at all. I have still heard no reason or sense for why that should be so, and I remain convinced that this was some drafting oversight.

No one has clarified either whether the “two days” are sitting days or calendar days. What if an offer comes at the weekend, during the Christmas Recess or some time when we are not here? Since the lawyers, both the noble and learned Lords in this House and those who are clearly just as learned but are mere QCs, have different opinions about this, it is quite possible that something that is a bit tricky may come our way at a time when we are not sitting or when the Act provides no two-day pause for the Commons. So either the Commons should have two days to consider anything or it should not have two days at all. I have heard no logical answer to that.

I sense that it is the will of the House that I withdraw the amendment. However, before Report, I expect to hear some sense from someone. I do not know who gave the draftsmen their orders. I have not yet heard a sensible reason why an extension to 30 January gets two days’ consideration but an extension to 31 January does not.

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[Lord Goldsmith]

No. I want to be clear that there is no certainly commitment coming from these Benches that that is what the Bill requires. If it is passed into law, it contains those words, but it does not constrain what the extension is used for.

[Lord Rooker]

My Lords, there is not much for me to say—although, as I alluded to in the previous debate, Clause 3 is precisely drafted and subsection (4) is there to give flexibility if other circumstances prevail. I had forgotten about where the Cooper/Letwin Bill—which I started off myself in April—came from. In other words, it came from the current Government on strike saying, “Please put it in your Bill”. We are happy to agree to the Government’s original plan to have it in the Bill. The noble Baroness said that this was a probing amendment. I would be very happy therefore if she would withdraw it.

[Baroness Neville-Rolfe]

My Lords, I am grateful for the good legal advice from all sides about what this provision means. It is obviously a helpful provision, and I am happy to withdraw the amendment. I am concerned that this Act has no end date, so it is right to make sure that we understand the provisions and how they would work in the future. I beg leave to withdraw the amendment.

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[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.

[Lord Rooker]

To respond to the noble and learned Lord, Lord Mackay, we spoke outside the Chamber last night, because he raised this right at the end. He has a valid point, but the Bill as it stands is still sufficient, and we are under the Prorogation guillotine. If we were not, we would have some flexibility. It is the Prorogation guillotine that has removed the flexibility from the House to deal with this.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

My Lords, I apologise for forgetting the letter.