European Union (Withdrawal) (No. 6) Bill

Viscount Trenchard Excerpts

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

[Lord Trevethin and Oaksey (CB)]

My Lords, I support the noble Baroness’s amendment. She is clearly right, and I hope that will be accepted around the House. The drafting of the Bill treats the European Council’s response to the request for an extension as if it might take one of two forms, but in fact the position is not binary; there are three possibilities.

The first is that the Council will unconditionally agree to the extension. In that case, pursuant to the Bill, the Prime Minister is bound to accept that. The second possibility, which is different, is that the Council might agree to the extension until the end of January, subject to conditions that may or may not be acceptable to the Government and the people. That is not an unconditional agreement; it is a counter-offer. As a matter of law, a counter-offer destroys the initial offer, which no longer remains open for acceptance, and is a new offer that can either be accepted or not. It is that possibility which has been overlooked by the Bill as presently drafted. That is why the noble Baroness’s amendment is plainly right.

The third possibility is that the Council will make a different type of counter-offer, which is to propose an extension that ends on a different date. That is a separate type of counter-offer, and that, as the Bill is presently drafted, triggers the provision in subsection (3). The noble Baroness’s point, as I understand it, is that the second type of counter-offer should also fall under the scope of subsection (3). She is plainly correct.

[Viscount Trenchard (Con)]

My Lords, I add my support to the amendment in the name of the noble Baroness, Lady Deech, who has set out clearly why the Bill is plainly defective. I think it happens to be a terrible Bill, and all that it will achieve if passed is to kick the can further down the road, which has a huge cost in terms of prolonged uncertainty and putting off decisions to make new investments.

As my noble friend who has just spoken has pointed out, there are different possibilities as to how the EU will react and respond to a request for an extension. Noble Lords will remember what happened at the last request for extension: there was a very long debate in Council, with President Macron seeking to allow us a much shorter extension whereas some other member states wanted to offer a very much longer one, and 31 October was a kind of compromise date. There was also much talk in the Council as to what other conditions should be applied to any acceptance of a request for an extension. That is the reason for the noble Baroness’s amendment.

It is not just on that point that the Bill is defective. I would like to know what is a “Lords sitting day”. There are two instances in the Bill of something called a “Lords sitting day”, which I have never heard defined before, as well as “calendar days” and “days”. So, the Bill is a bit poorly drafted. I have always understood that the role of your Lordships’ House is to scrutinise and improve deficient legislation.

I have another question; I think it is for the noble Lord, Lord Rooker, because he introduced this Bill. Clause 3(3) refers to what happens if the House of Commons has decided not to pass a Motion between two calendar days. It does not say what happens if the House has not decided to pass, or not decided not to pass, a Motion within two calendar days. Also, should “decision” have an upper-case d? If it is intended to signify a formal decision of the Council, it should have an upper-case d. If the decision is made on a Friday, or a Thursday when the other place is not sitting on the two subsequent calendar days, it is quite likely that the other place will not have had an opportunity to decide whether or not to pass such a Motion.

Quite apart from the very harmful effect of this Bill on our country and the current negotiations with the European Union, I think the least your Lordships’ House could do would be to support the noble Baroness in doing something to mitigate its harmful effect by making it a little clearer.

[Baroness Ludford (LD)]

My Lords, I rather echo the puzzlement of the noble and gallant Lord, Lord Stirrup. I would like to ask the noble Baroness, Lady Deech, or other sponsors of Amendment 2, to explain what part of Article 50 gives the EU 27 any power to impose conditions. As I read it, paragraph 3 of Article 50 just says:

“The Treaties shall cease to apply to the State”—


the UK in this case—at the end of the two-year period, or the end of the extended period. Could the noble Baroness explain what is the basis in EU law for believing that the EU 27 have the power to impose any conditions?

--- Later in debate ---

[Lord Lisvane]

I promised pedantry. They are defined in Section 13(16) of the European Union (Withdrawal) Act 2018.

[Viscount Trenchard]

I thank the noble Lord for his clarification, but that does not affect my basic premise that the Bill nevertheless refers to “Lords sitting days”, “days” and “calendar days” in a confusing manner. That also needs to be clarified.

[Lord Goldsmith (Lab)]

My Lords, I said yesterday what a privilege it was to be in this House, but having heard the noble and gallant Lord, Lord Stirrup, the noble Lord, Lord Lisvane, and the noble Lord, Lord Cormack, who is not on the Cross Benches, they have answered the points that I wanted to make on this amendment. The starting point for the context is, obviously, as the noble Lord, Lord Cormack, said, the limitation on time for this House and the other House imposed by Prorogation. We are in circumstances where we might think theoretically about asking the Commons to think again, but there will not be time. There will not be time for ping-pong because, if Prorogation hits, the Bill falls. I believe that that is what this House wanted to avoid, by pushing through and accepting Second Reading yesterday.

Let me come—

--- Later in debate ---

[Lord Mackay of Clashfern]

It seems obvious to me that if you are asked to make an extension, you do not do it just for the sake of doing it; you have some reason for it. I do not think that the European Union, far as it may be from common sense in many respects, is so daft that it provides for an extension to be applied for with no reason on earth why it should be granted. It seems common sense to me that the reason is required and, of course, the Bill contains the reason but has just happened not to put it in the letter. I suspect that what happened may have been a copying of the previous Bill, the Cooper Bill, which did not have the reason in at all, as I pointed out at the time. This Bill is much better and includes the reason. Unfortunately, it is not so good that it has it in the letter as well but, as I say, I do not think that matters. At least, I do not think that ultimately it will matter.

As for my noble and learned friend’s question about the reason, it is quite important that the reason given in the Bill is the reason that has to be given in support of the application for the extension. I would certainly have suggested that it should go in the letter if there had been time, but I fully appreciate that there is not time and therefore we must leave it as it is.

[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.