Business of the House

Lord Shinkwin Excerpts

Thursday 4th April 2019 Lords Chamber

I thank our distinguished counsel, clerk and committee colleagues who have pulled out all the stops today to write and agree that report. It has been circulated round our committee and has received majority support. No one has opposed it. About 20 minutes ago, I was handed a draft copy—

[Lord Shinkwin (Con)]

Does my noble friend agree that the failure to consult his committee provides further evidence, if any were needed, that those who most protest their allegiance to parliamentary democracy are actually doing the most to undermine it by ramming this Bill through your Lordships’ House in one day?

[Lord Blencathra]

My noble friend makes a fair point; I will leave him to make his own point in his own way later in today’s proceedings.

I do not wish to read the whole report, although it is very short and I will cut out the introductory paragraphs. The House might be interested if I cut to the chase. If I can do that, then I propose to not press my amendment to a vote.

We say in our report:

“In the Government’s original European Union (Withdrawal) Bill, which became the European Union (Withdrawal) Act 2018 … exit day was wholly a matter for regulations without any named date on the face of the Bill. The regulations were subject to no parliamentary procedure at all, whether of the negative or affirmative type. The Bill allowed Ministers to decide on exit day and set it out in law without recourse to Parliament. We objected to this, arguing for the affirmative procedure, meaning that both Houses were required to debate the regulations before they could be made. The principal reasons were the political and legal significance of the date that the UK left the EU, and the allied public interest in the matter. The Government accepted our recommendation.


The principal justification for clause 2 of this Bill is that it might be necessary to legislate at speed next week to change exit day. The affirmative procedure might cause delays, with the risk that exit day in domestic law might not be aligned with exit day agreed under EU law.


There is some force in this argument, but we are not convinced by it on grounds either of principle or pragmatism. The date of the UK’s exit from the EU remains a matter of the greatest political and legal significance. It is right that the matter be debated in Parliament before the current date of 12 April is changed in our domestic law. The Government have previously changed exit day from 29 March to 12 April, and they did so by a statutory instrument subject to the affirmative procedure. The Government have the time to do the same again, having afforded Parliament the scrutiny required by the 2018 Act. Negative resolution scrutiny is necessarily scrutiny after the event (that is, after exit day has already been changed in law). Scrutiny after the event is best avoided in a matter as significant as this, not least because the consequences of a successful prayer against the instrument would lead to the new exit day being legally invalidated (albeit with prospective effect only) perhaps some weeks after it has taken effect.


Clause 1 of the Bill would, in certain circumstances, give the House of Commons a vote on a proposed exit day at EU level, making it perhaps less pressing for them to have one on the consequential change to UK domestic law made by the relevant statutory instrument. But clause 1 does not apply to the House of Lords, meaning that the House of Lords would be prevented from participating in the process of approving a new exit day at EU level. It is correspondingly more important, therefore, that the House of Lords can scrutinise the relevant statutory instrument before it is made, rather than after the event, again arguing for the affirmative procedure (which is the current position). For the reasons set out above, we recommend that clause 2 should be removed from the Bill, thereby restoring the affirmative procedure to statutory instruments amending exit day”.


There you have it. I therefore urge the House to have Second Reading today, let us all—those in favour of it and those who disagree—study my committee’s report and come back to Committee, or a later stage, no later than Monday. That will give us a chance to table amendments implementing, if the House wishes, what my committee recommends. There is nothing in the Bill that justifies us casting aside the procedures we have followed for 27 years and ignoring the Delegated Powers Committee, which every Member of this House says does an excellent job.

I inherited a committee with an outstanding reputation and, not through any skill of mine, it still has an outstanding reputation. We are on a slippery slope if we decide to cast aside our procedures when we do not have to. Whenever we use the excuse of national emergency or crisis, we inevitably get bad legislation. The Bill may be perfectly okay or it could have unexpected consequences. It gives considerable power to the Prime Minister—in view of her work and behaviour over the last few weeks and months, is the House willing to give her that unfettered power? That is a decision only the House can make. Again, it is not what the Prime Minister says she will do but what the law would permit her to do that worries me and my committee.

Last night in another place, the Secretary of State for Exiting the EU said of the Bill:

“There are problems with the speed of its passage, the constitutional principle of it and the way it will interact with any decision reached by the Council that differs from the earlier decision taken by the House. I hope that the constitutional experts in the other place will address some of the Bill’s flaws”.—[Official Report, Commons, 3/4/19; col. 1146.]


I leave it to others to address the Bill’s flaws, whatever they may or may not be. My concern today is that we follow our normal procedures and give due consideration to my committee’s report and meet tomorrow if necessary, as the noble Lord, Lord Cormack, says. Give us time to study the report; let us table amendments, if that is what we wish to do, to correct the serious flaws in the Bill. I urge the House: let us do our job; let us report in ample time so that the Bill can get Royal Assent next week in ample time for the Prime Minister to go to Brussels on Wednesday.