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.”
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—
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?
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.
We have heard that the Joint Committee is meeting tomorrow. There are many precedents for the Joint Committee to lay its report before the House after its meeting. The current circumstances are far from normal, as the noble Lord, Lord Hunt, has said, and there is a compelling case for this SI and a report on it to have been considered and reported on by the JCSI, which should be done tomorrow. Then, if need be, the Government could bring the SI before this House tomorrow, except in the evening rather than as first business, and all noble Lords would be informed by what our Joint Committee—which otherwise will be labouring to no purpose if we have already debated the matter—has said.
I do not believe that any part of Parliament should be bypassed by an exceptional Motion in that way, nor do I believe that your Lordships should lightly give up these scrutiny protections. Encouraged by what my noble friend has said, I ask her not to press the exceptional Motion, which will provide further precedents for the future, but to await tomorrow’s consideration and report by the Joint Committee and, if need be, we can proceed with the business later tomorrow or on Thursday. I really think it is unnecessary and high-handed to have laid such a Motion in the circumstances that my noble friend has set out when the committee is meeting tomorrow to consider the matter anyway. I beg her to reconsider her Motion and beg to move my own.
My Lords, this is a particular pleasure for me, and people behind me will understand why: I was brought up on Citrine’s ABC of Chairmanship, and we are dealing a lot with Standing Orders and when it is appropriate for them to be suspended. I never thought I would revert to that book in your Lordships’ House.
Standing Orders, by their nature, are not laws of the country. The fact is that they can be suspended exactly because the times are exceptional. I agree with what I think was the implication of my noble friend behind me: the situation that we are in is not of this House’s making but is because of a failure of negotiation by someone else. In fact, the SI we are discussing still does not have one date on it but two, though no doubt we will make those comments when we debate it.
For today, though, there is a different issue before us: the certainty that is necessary, particularly for lawyers and courts but also for businesses, citizens and everyone else. The situation at the moment, as the noble Baroness the Leader of the House said, is that the agreement reached with the EU may not be exactly what the Prime Minister wanted but it does move the date on which we will leave the EU. It was made with agreement because, under Article 50 of the treaty, the change of date can be made only with the agreement of the member state. So it was our Government who agreed to the change of exit date; it is not something that has been imposed on us but something that our Government accepted. The date to which the exit will move will be in either April or May, as is allowed for.
The important issue is that we will not leave this Friday, but at the moment we have an Act of Parliament that will come into effect then. All the statutory instruments we have passed and all the other changes come into effect at 11 pm our time on Friday. If we fail to deal with this, we could have a situation where we will still be in the European Union till at least
The committee may meet tomorrow. The noble Lord, Lord Forsyth, gave a look which asked whether it could alter its meeting. Maybe it could, but it has its rules. It knows the situation and the seriousness of it. The point is, it does not publish until Friday morning. The alternative is that we do not take this tomorrow, but reassemble on Friday, after we get the report, and do it then. That seems one way that we could have input from the committee. If your Lordships’ House really wants to come back on Friday and do it then, it should obviously support the amendment in the name of the noble Lord, Lord True. If the committee, of which he speaks so highly, is content and has not brought representations, it would be completely in order. Our other committee will have done its work this afternoon and we should suspend Standing Orders, as has been recommended. We will not support the noble Lord, Lord True, should he push to a Division.
My Lords, I seem to remember that we had quite a lot of debate in this House about the inclusion of the date of
The noble Baroness, Lady Hayter, for whom I have enormous regard, has suggested that perhaps we should sit on Friday to see the committee’s report. That sounds a bit like the tail wagging the dog. There is an issue under our Standing Orders that we should receive a report from the committee. Reading the Explanatory Memorandum, I note that the United Kingdom sent a letter dated
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
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.
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:
“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.
Is that not another reason why we should have the report from the Joint Committee?
No, because for my part I will be quite satisfied if the Government consider this point. Other noble Lords, including members of the committee, now have notice of this question, and if anyone thinks the point is worth discussing tomorrow, they can have a proper opportunity to do so.
The noble Lord has much greater experience of the law than I and most of the people in this House do. Therefore, could he explain whether there would be any possibility of a challenge to the statutory instrument—which he and I would not wish—if we have not followed the correct procedures, as my noble friend Lord True wishes?
There could be the possibility of a challenge if this point had any substance to it. I am concerned that we do not adopt or approve a statutory instrument without consideration of this point. The alternative would be to have a statutory instrument that specifies
I emphasise that I am not telling the House that this is, in my view, a fatal amendment to this statutory instrument. I am raising a concern that has been expressed by some lawyers about this point. I would welcome it if the Leader were to consider the point—with the law officers if appropriate—and address it tomorrow.
It is not just a question of alternatives, is it? If you look at the text of the first alternative, you cannot determine what the date is by looking at the words in the instrument. Is that the point that the noble Lord is seeking to make?
There are two points. You cannot tell the date on which we are to leave simply by reading the statutory instrument, and that date, on the drafting of the statutory instrument, depends on an external event which is certainly not within our control.
My Lords, I am very grateful to the noble Lord, Lord Pannick, for having spelled out that this is not, in the words of the noble Lord, Lord Newby, a frightfully straightforward, simple little exercise. It is actually a very complex issue which raises serious legal questions. Therefore, the Joint Committee should look at it very closely. It should not be bypassed by the Motion that the Leader of the House put in front of us. The noble Lord, Lord Hunt, says that we should be questioning the Prime Minister on this. I only wish we could. Unfortunately, she does not sit in this House, although I am sure my noble friend the Leader will answer for her.
The fact remains that we are trying to bypass our systems. We are upholders of the constitution of this country, and we should seriously question whether this should happen. The opening remarks of my noble friend revealed that the Joint Committee has been asked to look at this and that it could report earlier. Surely, therefore, she can accept the amendment of my noble friend Lord True. If she does, we can go ahead with it quite straightforwardly. There could be an accelerated process of reporting to the House, and we could then get it all done tomorrow, could we not?
My Lords, I hope that the Leader of the House will respond to the point that the noble Lord, Lord Pannick, has raised. There is an indication which has been referred to today—I think in the Financial Times—that extreme people who wish to leave were raising a legal challenge to the fact that we are not leaving at the end of the month.
My Lords, yesterday the noble Lord, Lord Robathan, made the interesting point that he was rather surprised by the assertion made by the Lord Privy Seal that the decisions of the EU Council trumped UK law. She was asked repeatedly about that, so can she clarify what has changed since yesterday so that she comes forward indicating that it raises some really big issues if we do not deal with that? If that is the case, is it therefore suggested that all these statutory instruments which people have been sweating over in the last few months do not in practice replicate EU law and move it into UK law? If there is a distinction between them, that is precisely what we were trying to establish during many of those debates. I would be grateful for that clarification.
The noble Baroness also said in her remarks a few minutes ago that the Joint Committee on Statutory Instruments usually meets at a certain time and reports on a certain date. Presumably there have been plenty of instances in the past when it has not met on those dates. Why was that not put to the Joint Committee?
My Lords, my noble friends Lord True and Lord Forsyth are of course correct to say that it is not usual practice for the House not to consider SIs until the JCSI has both considered and reported on them. This is indeed an unusual request but I remind noble Lords that the House of Commons asked the Government to seek an extension last week. We have done that and laid an SI on the first sitting day that we could after a decision was made. I accept that noble Lords may not like that, but it is the position we are in, and I thank the noble Lord, Lord Newby, and the noble Baroness, Lady Hayter, for recognising that we are in exceptional circumstances. I have recognised that.
That being said, the practice has in the past been set aside where there is a clear case for an SI to be considered urgently. In this Session we have set it aside twice before, each time making a case on its merits, as I hope I have done today. The first instance was to ensure the continuation of the non-jury trial provisions in Northern Ireland; and the second was to control a substance under the Misuse of Drugs Act 1971. I reiterate to my noble friend Lord Forsyth that while the JCSI has not looked at this in detail, the extension SI was sent in draft to its lawyers at the end of last week to undergo pre-laying scrutiny.
I am surprised that noble Lords are now asking me to dictate the terms of how a committee meets. I do not think that in normal circumstances they would want me, as the Leader of the House, to start dictating what our independent committees do. I just ask that that is considered. The JCSI is entirely entitled to decide when, how and why it meets. I genuinely do not believe that it is for me to say that. If the JCSI reported in the usual way, as the noble Baroness, Lady Hayter, said, we would have to meet on Friday to consider it. I believe that noble Lords would like us to get this SI through, so that as the noble Lord, Lord Newby, said, we can have certainty, which is what we deserve to deliver for the country.
As noble Lords know, the terms of our exit from the EU are governed by Article 50 of the Treaty on European Union. On
I am very grateful to the noble Lord, Lord Pannick, for his comments: we are confident that the instrument is legally correct, but we will of course look in more detail at his comments today and respond to them in detail tomorrow, when, no doubt, we will have a further discussion.
I apologise for interrupting my noble friend, but the noble Lord, Lord Pannick, asked a very interesting question to which I would genuinely like to know the answer. My expectation was that the Government would lay a statutory instrument that would change exit day to
The rationale is that we have two dates agreed with the EU, both now set out in one SI. That means that both situations are covered, which seemed a sensible approach. Again, we will obviously discuss the concerns of the noble Lord, Lord Pannick, and any others that noble Lords wish to raise now that the SI has been tabled, and we look forward to that further discussion tomorrow.
I personally share the frustrations of my noble friends Lord True and Lord Forsyth that we are not leaving the EU on Friday—I know that a number of noble Lords do not—but it is our responsibility to provide legal certainty for the people of this country, and given that the date of our exit from the EU has already been changed I believe it is our duty to take, discuss and, I hope, pass this SI.
I think that what businesses and citizens want is certainty. We have now had a decision between the UK Government and the EU that we will extend the date past
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.
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?
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.
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.
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.
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?
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.
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.