Business of the House

Lord True Excerpts

Tuesday 26th March 2019 Lords Chamber

Moved by

[Lord True]

To leave out from first “that” to the end and to insert “this House declines to consider the draft European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019 until a report from the Joint Committee on Statutory Instruments on the draft Regulations has been laid before the House, as it is not in accordance with the practice and traditions of the House to consider significant affirmative instruments laid by Her Majesty’s Government without prior consideration by that Committee.”

[Lord True (Con)]

My Lords, I thank the Leader of the House for what she has said and, if I may, I will respond to that in my opening remarks, rather than at the end. For the avoidance of doubt, I must make it clear that I do not have any intention of using this amendment to either extend or not extend our stay in the European Union. Noble Lords who have followed our debates know my view. I deplore the fact that we are not leaving on Friday, but I recognise the circumstances that the Leader of the House has referred to; I personally will not make, recommend or participate in any attempt to talk out that statutory instrument, and I know of no proposal to do so. Therefore, any such suspicion is completely unfounded and it is no pretext for the Executive to evade the normal procedures of Parliament on these highly significant regulations that we will debate tomorrow.

Having set that aside, perhaps I may get on to the fundamental point that I want to make. I speak as someone who spent 13 years in the usual channels of this House and who has been a Member in the nine years that have followed. I have come to understand that there is no greater protection of this House, or indeed of Parliament as a whole, than the freedoms that your Lordships enjoy in procedure and the duties that are laid on the Executive. It is the flexible freedom that we have, and the demands that we are able to make of the Executive, that have enabled this House to become the undoubted master of scrutiny.

In these troubling constitutional times I submit that, wherever we stand, it is more important than ever that the House should protect its working procedures. If the Executive is incoherent and not consulting Parliament soon enough—or not consulting it enough—and if the other place now collectively purports to act as the Executive, then who provides the scrutiny if not this House and its committees?

The Joint Committee on Statutory Instruments is not a committee of this House but of both Houses. It exists to protect both Houses against the inappropriate exercise of powers by the Executive. We have in our Standing Orders something the other House does not: a requirement that a report is laid before Parliament by that committee before an important matter is debated. This Standing Order is a protection not only for this House but for the other.

The Joint Committee does a remarkable job. Over the last 18 months it has almost invariably met weekly on Wednesdays; we have heard my noble friend the Minister confirm that it will be meeting again tomorrow—I imagine at 3.45 pm, as always. Since November 2017, it has produced 56 reports, drawing 163 statutory instruments to your Lordships’ attention. Anyone who follows its work knows its importance.

I will not concern myself with the merits of the statutory instruments that might—and will—be considered by the Joint Committee. Neither will I consider this particular statutory instrument, which is not before us today. What is before us is an exceptional Motion from the Executive to set aside our Standing Orders and potentially defeat the need for a report on this very important SI by your Lordships’ Joint Committee before we debate this momentous matter.

In the Explanatory Memorandum just one reason is given. Paragraph 3.1 says that,

“there will be insufficient time for the Committee to report on this instrument in the normal manner”.

I ask your Lordships to hold that phrase, “in the normal manner”, in mind. The Leader of the House says that we have to vacate Standing Order 72. I will come back to the question of time, but let me draw your Lordships’ attention to the exceptional nature of the Leader’s Motion before us: to bypass the requirement for a report from this key parliamentary committee for both Houses. The clerks have told me—I am grateful for their advice—that there have been four such Motions this century—just four. One of those was last October when the Joint Committee was not even in existence.

This underlines the exceptional nature of a Motion to set aside our Standing Orders requiring the Joint Committee report to be laid before the statutory instrument is moved. I do not believe that this vacation of the duty of the Joint Committee to report can be justified, particularly as my noble friend the Minister has confirmed that the Joint Committee is meeting tomorrow to consider the matter. I do not accept the plea that there was no time. My noble friend the Minister has told us that the Joint Committee was informed last Friday. Its guidelines say that it is normal for the Joint Committee to take five working days to consider a matter, but equally the guidelines make provisions for it be done more expeditiously. I have no doubt—

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am having some difficulty in following the noble Lord’s line of argument. I would have thought that his remarks would be better directed at the Prime Minister. After all, it is she who has prevaricated about letting the House of Commons make the decision in this regard and then twice ignored its views. With the greatest respect to him, given the dire situation that we are in, what alternative do we have but to take this SI as soon as possible?

[Lord True]

My Lords, the noble Lord makes a political point.

[Noble Lords]

Oh!

[Lord True]

I was seeking to make a procedural point on behalf of your Lordships’ House. Our normal procedures are not there to protect the Government, let alone to protect them from any criticism, but to protect Members of your Lordships’ House and of the other place to allow them to make representations and for us to hear a considered report. I believe that that is the procedure that we should follow.

--- Later in debate ---

[Baroness Evans of Bowes Park]

I have said that this is an unusual situation: that is why I am here asking the House to agree that we can do this. It is only right to do that. This has been done on a number of occasions. I am not saying in any way that this is a usual situation; I have tried to set out the timeline that has led us to this and I say again that I believe that, for the country, our discussing this SI tomorrow and—I hope—passing it will mean that this House has played an important part in providing certainty to our citizens and businesses so that we can move forward and leave in an orderly fashion. On that basis, I hope that my noble friend will consider withdrawing his amendment.

[Lord True]

My Lords, before I respond, will my noble friend comment on one thing? She said that it is not for her to ask a committee to sit on a certain day. The guidance from the JCSI to government departments states at paragraph 3:

“If, in exceptional circumstances, a Department wishes an affirmative instrument … later than the normal deadline to be considered at a particular meeting, a letter from the relevant Minister to the Chairman of the JCSI will be required setting out the reasons why expedited consideration is thought necessary and why the instrument was not laid sooner”.


Did the Government send such a letter to the chairman of the JCSI?

[Baroness Evans of Bowes Park]

I understand that my noble friend has written to the JCSI, but I repeat that it is for that committee to decide when it sits and to decide its programme of business. As I said, we have given a preview of the SI to the committee. I trust its judgment and I fear that, no matter what the pushing, I am not going to dictate what that committee does.

[Lord True]

I am afraid that that means that the Government have refused to accept an open offer from this committee to all government departments for expedited procedures—an extraordinary decision in the case of one of the most significant statutory instruments ever to be laid before Parliament, whichever side of the argument you are on.

The logic of what we have heard from my noble friend, whom I greatly respect, is this. Tomorrow, your Lordships’ House will be asked to meet and start considering this statutory instrument. A few minutes later, somewhere in this House, the Joint Committee will start deliberating, as we have heard, on its significance and potential impact. Your Lordships will be invited to take a decision; the poor old Joint Committee will reach some conclusions and your Lordships and the other place will never be advised of them before the decision is made. This is an absurd position. In any sense, it cannot be right.

We are talking here of printing. We live in the 21st century. Are we really saying that a committee that deliberates tomorrow afternoon cannot print a report and have it before your Lordships’ House by Friday? It could be put on pieces of paper like those in my hand.

[Lord Trefgarne (Con)]

I apologise for not having been present for all of this consideration. I have to tell my noble friend Lord True that the Select Committee on statutory instruments of your Lordships’ House has met and prepared a report that will be available to your Lordships tonight.

[Lord True]

I am grateful for the intervention from my noble friend. However, the position in our Standing Orders and constitutionally is that the Joint Committee on Statutory Instruments—a Joint Committee of both Houses, not just your Lordships’ House—considers important affirmative instruments and presents a report. My noble friend’s committee’s report will be immensely valuable but it cannot have the authority of a Joint Committee, which will have authority and distinction in both Houses.

[Lord Hunt of Kings Heath]

My Lords—

[Lord True]

I have given way to the noble Lord before.

[Lord Hunt of Kings Heath]

I want to say something about the intervention we have just heard from the noble Lord, Lord Trefgarne. He is chairman of the Secondary Legislation Scrutiny Committee of your Lordships’ House, which has to be distinguished from the JCSI. I thought it would be helpful to have that acknowledged.

--- Later in debate ---

[Lord True]

I am so grateful; that was a procedural point from the noble Lord, not a political one.

This is a sensible, grown-up House; we do not need to deal with these things by Division. Is not the sensible thing for the usual channels to take this away and for my noble friend not to press her Motion, which creates a precedent for the future? If this type of Motion becomes normal, it will have a chilling effect on future Oppositions and Governments as time goes by.

The sensible thing would be for the usual channels, in discussion with the Joint Committee, to take this away, have some discussions, not press this measure and report to the House tomorrow, before we can lay a document. In fact, they can lay a document while the House is still sitting this evening, or let us know by making a Statement. Then, we can decide whether it is necessary to go ahead with the farce of considering this tomorrow, while the Joint Committee is meeting down the Corridor. We could still then take the business later tomorrow or on Thursday. I do not accept the argument about printing. Will my noble friend consider having consultations with the usual channels and Cross-Benchers?

I was going to make the point that the noble Lord, Lord Pannick, made. I am not a lawyer and I said I would not go into the merits of the statutory instrument. As a lay man, it seems to me astounding that it was not the date—that it must be open to challenge. The other thing is the potential effect of a charge on public funds which might arise from staying in the European Union, which the Joint Committee also looks at.

It would be safer for this House and the other place to have the benefit of a considered report to which representations can be made. I urge my noble friend to take it away, consider it in the usual channels with interested parties and bring it back later tonight or tomorrow. If she will do that, I will reflect on what she said and decide whether I wish to divide the House, which I would rather not do. It is not my intention to do so in any circumstances and is not conditional on what she says. Will she consider that proposal?

[Baroness Evans of Bowes Park]

I am afraid I cannot give my noble friend that assurance. We have discussed this through the usual channels. This is an important SI that we need to see through and I hope I have explained the reasons why. I acknowledge that these are unusual circumstances—I have accepted that and said so quite readily at the Dispatch Box—but for the sake of the country we need to look at and discuss this SI tomorrow, as the House of Commons will. I hope my noble friend will withdraw his amendment, but I am afraid I cannot accede to his request.

[Lord True]

My Lords, I regret to say I find that a highly unsatisfactory response and not in the spirit of co-operation across the House. But I see no point in dividing if my Front Bench and the Labour and Liberal Democrat Front Benches are not interested in debating with the benefit of the Joint Committee on Statutory Instruments. There is very little a mere Back-Bencher can do, so I beg leave to withdraw my amendment.

Amendment to the Motion withdrawn.