Lord Forsyth of Drumlean:

Moved by Lord Forsyth of Drumlean

That the House do now resolve itself into Committee.

My Lords, I beg to move that this House resolves itself into a Committee on the Motion in the name of the noble Baroness, Lady Hayter of Kentish Town, pursuant to Standing Order 62.

This has nothing to do with Brexit. It has to do with the procedures of this House and of our constitution. I am very disappointed. The noble Baroness, Lady Hayter, is held in very high regard in this House, and we have—I will not say “enjoyed” but we have had good-humoured discussion over and over again on issues arising from Brexit. But this is about how the House operates and how our constitution is carried out.

As I listened to the noble Baroness, I had a look at her CV. I see that she contributed to a book entitled Prime Minister Portillo and Other Things That Never Happened. Obviously she is doing one on Brexit at the moment, judging by the contribution she has just made. I am very surprised indeed that she of all people, and the Opposition, should be joining the insurgents in the House of Commons who have sought to undermine the process and procedures of the House of Commons.

If that sounds an exaggerated point, I will quote from what the putative Prime Minister in the House of Commons, my friend and former colleague Oliver Letwin, had to say—I do not know whether he had a word with the noble Baroness, Lady Hayter. He said in response to a colleague in the other place:

“My hon. Friend can rest assured—although this may not be of any comfort to him—that those of us who are promoting this course of action have taken the trouble to identify Members of the House of Lords who are well able to carry the Bill forward in the House of Lords.

My hon. Friend may also wish to know, although I fear that it will also be of no comfort to him, that there is overwhelming support in the House of Lords for this measure, and that we therefore anticipate that it will, in all probability … pass through the House of Lords very rapidly. To that end, the House of Lords has in fact already passed a motion that provides for the expeditious consideration of exactly this form of Bill … My sense, for what it is worth, is that although the House of Lords procedures are arcane and it is impossible to determine from the outside the time that will be taken, there is very substantial support for the Bill there, and it is therefore very unlikely that anything other than technical amendments, which might be wholly welcome, would come back, and they would therefore be accepted. I do not think that is an issue we … face”.—[Official Report, Commons, 3/4/19; cols. 1067-71.]

To describe our role as a House in protecting the constitution and reforming our legislation as “arcane procedures” shows an extraordinary arrogance, which is matched only by the way in which he and others have sought to turn the House of Commons into the Executive and to prevent the House of Commons and indeed the Government carrying out their proper duties.

My Lords, I am sorry for intervening on my noble friend, but I find it utterly extraordinary that we have just listened to a Motion being moved by a leading Member on the Opposition front bench who simply would not take an Intervention. This debate can be solved so easily. Over the last two or three decades, the House has developed an extremely successful practice for dealing with urgent Bills. We do Second Reading on one day and we take Committee and the remaining stages either the next day or the day after that. I understand that the Bill is urgent, but there is absolutely no reason to have all stages taken on one day.

My Lords, the noble Lord is not making an Intervention, which means a short question—he is making a speech. I wonder whether he would look at the Companion and see what it has to say.

I am happy to give way to my noble friend if he wishes to finish his point, but I think he made it pretty clearly. The noble Countess suggests that this has all got to be done today. Why? We could sit tomorrow or we could continue on Monday. There is no reason at all why it should all be done today.

I am very grateful to the noble Lord for giving way. I really want to respond to the noble Lord, Lord Strathclyde.

Will the noble Lord give way?

No, I am making an Intervention. It is not for me to give way to the noble Lord, much though I am sure we will be happy to hear from him in due course. The point I want to make to the noble Lord is that this House has dealt with emergency legislation in one day. I refer him to the Human Reproductive Cloning Bill, which I took through this House on 26 November 2001, with a Second Reading and Committee in one day. It was to stop a scientist from another country who was coming to the UK to carry out human cloning, and legislation was needed urgently. We took it in one day. This legislation is needed urgently because we do not have a functioning Executive, we have the most critical situation this country has faced in decades and the Commons has had to do what it did. That is why it is urgent. Surely the noble Lord can see that.

I am surprised that the noble Countess did not intervene, given the length of that Intervention from the noble Lord. He will recall that the Bill that he referred to was agreed by the usual channels, which is the normal way in which we proceed. I realise that because I was in the House of Commons I may have got used to its procedures, but I have been used to Bills being presented with the name of the sponsor. There is no sponsor on this Bill. The noble Baroness said that it was being presented for its First Reading, but the Bill appears to be an orphan. Who is the sponsor for this Bill?

I am.

That is very alarming, because I thought that the noble Lord was a very good House of Commons man. When the noble Lord, Lord Hunt, said that in the House of Commons there was no functioning Executive, that is because, according to Sir Oliver Letwin and some of his friends in the other place, they are now the Executive. His remarks in the Commons were extraordinary. He said that,

“when this House comes to legislate, as I hope it will and fear it must, it will be, so to speak, a Cabinet. We will be making real-life decisions about what happens to our fellow countrymen—not just legislating in the hope that many years later, subject to further jots and tittles, the law, as administered by the system of justice, will work better. We will be making a decision about the future of this country. How can we possibly make those decisions unless we are properly informed? The process of which we are now at the start will require the fundamental realignment of the relationship between the civil service, Government and Parliament. There is no way we can continue to act as though we were merely a body to which the Government were accountable; for a period, for this purpose, we will have to take on the government of our country”.—[Official Report, Commons, 14/2/19; col. 1110.]

This is what is being said at the other end of this building.

I am very grateful to my noble friend for giving way. The point I wanted to make, which addresses the Intervention of the noble Lord, Lord Hunt of Kings Heath, addresses the point that my noble friend has just made. It is that, admirable as the Bill that the noble Lord, Lord Hunt, brought forward in one day was, it was not on a major constitutional issue.

My noble friend is quite right. The point that I am making is that at the other end of this building we have, in Sir Oliver Letwin’s own words, a revolutionary action taking place.

I am very grateful; I thank the noble Lord very much indeed for giving way. Was not part of the campaign during the referendum about the sovereignty of Parliament, not the sovereignty of the Government? Is not the delay in passing a Bill already through the Commons bringing this House into disrepute?

It was indeed about the sovereignty of Parliament. The sovereignty of Parliament means that Parliament has a role to hold the Executive to account, not to become the Executive, as the noble Lord well understands and knows.

In answer to the noble Lord, Lord Blunkett, is it not the case that Parliament delegated its decision on the issue underlying these proceedings to the people of this country? The problem is that far too many people in Parliament do not like the answer they got.

My noble friend is absolutely right, and I thought I might deal with some of these arguments on the next Amendment. I am trying to make a case here and am getting lots of interventions. The noble Baroness said we were trying to delay the passage of the Bill, but I am being delayed by interventions from her colleagues; I am anxious to make rapid progress.

On the interventions from the noble Lord, Lord Hunt, and the noble Viscount, Lord Ridley, while it is true that there have been expedited proceedings in times of emergency or for security measures or measures relating to Northern Ireland, those expedited proceedings have normally taken place when both sides of the House have agreed that it was necessary. This measure is being introduced despite being opposed by the Government.

I absolutely agree, and it is questionable whether it is necessary. My understanding is that the Prime Minister has already indicated that she plans to ask for an extension of our Article 50 period, so we do not need this Bill. I am told that when this point was put to our putative Prime Minister, Sir Oliver Letwin, he said he needed it as an insurance policy. I am sorry, but subverting our constitution for an insurance policy seems a pretty high premium to me.

Is my noble friend aware of the opinion of the excellent and rather consensual chairman of the House of Commons Procedure Committee? He said the following yesterday:

“The House of Commons is about to pass a major piece of legislation without a Report stage or a substantive Third Reading. If the Government did this, the House would rightly be deeply irritated with them, so the House should find no virtue in its actions this evening”.—[Official Report, Commons, 3/4/19; col. 1211.]

Indeed, and perhaps even at this late stage the noble Baroness might be prepared to reconsider her Motion. I would be perfectly happy if we had Second Reading today and took the Committee stage another day; there is no great issue here.

The noble Baroness suggested that the amendments had been tabled by people in favour of no deal; that is what she said. As I said at the beginning, this is not actually about the merits; we will get on to those later. As she sought to imply that one was coming from a biased position, I wonder if she would like to look at the pamphlet produced by Sir Stephen Laws and Professor Richard Ekins, entitled Endangering Constitutional Government: The Risks of the House of Commons Taking Control. They also picked up those words I quoted from Oliver Letwin, and this is what they say:

“By those words, Sir Oliver announced his intention to create a constitutional crisis, and invited MPs to join him in a flagrant and destructive attack on our current constitutional settlement. However, even if many MPs resile from the conclusion that the Commons must become the Cabinet, the course of action MPs have now set in motion, with help from the Speaker, is one which undercuts the Government’s capacity to govern and its freedom to set the agenda—to propose policy which Parliament might then choose to resist, adopt or adapt.

If the Commons continues down this path unopposed, the Government will end up in office but unable to govern. The Commons would nominally have confidence in the Government but would in practice not extend to the Government the freedom that such confidence would otherwise entail to carry out any policy initiative. Again, the constitution does not require that Parliament should accept the Government’s proposals. But unless the Government enjoys the initiative in formulating and proposing policy, the country cannot be effectively governed; and the relationship between the political authorities and the people will break down if MPs act in mutually inconsistent ways in performing their dual role both as an electoral college for government and in exercising oversight over the conduct of public affairs”.

What a mess we are in. Members opposite, in this House, of all places, where we have conducted the debate in a civilised manner—

My Lords, does the noble Lord accept that the Prime Minister has accepted that her Government cannot get her legislation on Brexit through the House of Commons and needs to consult the rest of that House on alternative approaches?

Yes, indeed, and that is why we do not need this Bill, which is a point that I have already made. The Prime Minister has said that she wants an extension. She has asked—I think somewhat courageously—the Leader of the Opposition to talk to see if they can find a common purpose, but we know that that has been received with a certain amount of cynicism on the Benches opposite. Most of them are not great fans of the leader of the Opposition, although today they appear to be united in conspiring with those people in the House of Commons to undermine our constitutional system.

In the House of Commons Standing Order 14 has always given the Government’s business priority. It has existed since the early 19th century. The Government have always had a veto on legislation which involves taxation or expenditure. I am afraid that the combination of some militant people who wish to prevent the will of the 17.4 million people who voted to leave the European Union and a rogue Speaker—

Noble Lords:

Oh!

—yes, a rogue Speaker who allowed Dominic Grieve to amend an Act passed by both this House and the other place by a mere Motion, is what has created these difficulties.

My Lords, the noble Lord has said twice that the Prime Minister wants to get an extension of time. The passage of this Bill would give her additional strength in getting that time.

I will say very gently to the noble Lord that he ought to read the excellent speech made in the other place by the Secretary of State, Stephen Barclay, in which he explained in great detail how this Bill actually makes it more difficult for the Prime Minister to achieve her objectives. At the end of the day, with the support of the noble Baroness, we are not in control here; it is the European Union that will decide the length of an extension. This Bill is making the Prime Minister’s task very much more difficult.

Anyway, there will be plenty of time to go into the ins and outs and the merits of the legislation, but I am moving a Motion that we should take consideration of this in Committee. I appreciate that it is an unusual procedure but, as the noble Baroness made clear in her opening remarks, these are unusual times and these are important issues. We need to be in Committee—

Will my noble friend give way?

In a second. As I say, we need to be in Committee because we need to be able to cross-examine the basis for the Motion tabled by the noble Baroness. We need to be able to speak more than once, which we cannot do unless we are in Committee. We need to consider the implications of this for the future conduct of business in this House. I will not read them out because I do not want to waste time—

Noble Lords:

Oh!

Okay, I will.

My Lords—

I am not giving way.

Noble Lords:

Order!

My Lords, the noble Lord has been speaking for 20 minutes.

I have to say that if the noble Lord had been speaking for 20 minutes, it would have been much less interesting.

I will not read them out, but in the Companion are two pages of very important information about Private Members’ Bills waiting to be discussed. Are we to have it that the Opposition can seize control of this House and accelerate Private Members’ Bills by arguing that they are urgent? There is an opportunity here for the noble Lord, Lord Grocott.

My Lords, the attraction of accelerating Private Members’ Bills to be considered in a day has great merit. For the record, my Private Member’s Bill had its Second Reading in September 2017 and has just reached Report. I hope that anyone considering acceleration of Private Members’ Bills in this way will agree to offer the same facility when I reintroduce my Bill.

The noble Lord knows that I have sympathy for his Bill—although there are others here who do not wish to see his Bill proceed—but he needs to have a word with Sir Oliver Letwin, who is able to arrange these things, and get his colleagues lined up.

Is not my noble friend right? I speak as a former Deputy Speaker—I was elected to carry out that role—as well as a former Member of Parliament in the other place. There was no Report stage in the Commons, which in itself is extraordinary—and incredibly extraordinary on a major constitutional Bill—and a truncated Third Reading. It is no good the noble Baroness on the front bench opposite saying there had been an exhaustive examination in the other place—there has not been. Why did Members of the other place pack up at half-past 11? Because they got tired. On the Maastricht Bill we went through the night for three nights running. That is how you look at a Bill in depth. My noble friend is right to ask that we should look at this Bill in depth during a Committee stage today.

I am sure there will be time to discuss the way in which the Bill was handled. It was passed by only one vote—and that came from someone who was wearing a tag on release from prison. The noble Lord says, “For goodness’ sake”, but this is a major constitutional matter. It was passed by one vote after speeches were limited to two minutes in the other place because of the guillotine. Does he think that is the way to proceed? He had a go at me the other day because I said that this practice of suspending our Standing Orders will lead to tyranny. He mocked me. He said, “Tyranny? How ridiculous”. All that lies between us and tyranny is that we respect the conventions of both Houses. Why do we do that? Because it is our constitution. I hope the noble Baroness will accept the Amendment because she is in danger of tearing up our constitution in order to make a narrow party-political point. I beg to move.

My Lords, I speak at a very difficult time for our whole country. However we see this debate in this Chamber, we have to consider how it will be seen outside of it. For what it is worth, if I had still been a Member of Another place, I would have voted in principle against this Bill. It raises serious constitutional implications for another place, and I hope that very soon it will look at its rules of order and conventions and change them, so that this type of legislation can never again be presented either to this House or to the country.

It is true, in strict terms, that this Bill is not related to the real question before us: the withdrawal agreement and a treaty between 27 other EU countries and the United Kingdom. However, we cannot have this debate without recognising that it has wide implications for that consideration. It seems to me, on the balance of argument which has been presented, that if I were going to vote—but I am not—I would agree with the noble Lord, Lord Forsyth. This is a reasonable way of proceeding, although I know it may seem to some to be a blocking measure.

I understand the anger and frustration, and the belief that the procedures of the House of Commons have been changed in a way that was almost impossible to foresee for those of us who spent years there—I was there for 26 years. Nevertheless, it has done it; nevertheless, the Speaker has ruled; and, nevertheless, even by one vote, the Bill has been passed. We in this House have to be very careful about stopping this Bill. We may take a long time on it, and we may raise very serious constitutional questions about the way the House of Commons has behaved and urge it to change its procedures for the future, but if the word were to go out that the House of Lords had blocked the Bill, it would raise a very serious question. I have never made any secret of my view that this House needs very substantial reform, and if noble Lords want to bring on the day that this House is changed in a very substantial way, it will happen. Noble Lords need to be extremely careful.

One thing I urge the House to remember is that, at long last, the Prime Minister of this country and the Leader of the Opposition are meeting in what appears to be a climate of compromise with a readiness to try to put the country’s interest first. It may or may not succeed, but it is profoundly to be hoped that it does.

How will this whole thing look, against that atmosphere and that priority, to the 27 countries that will have to consider this Bill, if it were to become an Act? The Prime Minister has already indicated what she wishes to do, but they are in control of the procedure. Many times in this whole debate about Europe, I warned this House about Article 50, which we should never have used. It is deliberately designed to stop the sort of normal compromise and agreement which has proceeded in both Houses over many years. We are not in a so-called negotiation, and people are now seeing it. In front of us, we have a proposal from 27 countries. It may be that the Prime Minister is ready to go along with it, and perhaps the House will eventually, but it is not a negotiated procedure in the normal sense of the word, and those countries have the right to make the decision about whether to allow a postponement.

Furthermore, something we should consider is that it has to be unanimous, so just one country can refuse. We know they are thinking very carefully about whether they will allow this. Even if we get around it procedurally, they are worried about its implications for the whole tone and debate in their countries when electing the new European Parliament. The way we debate here and in the other place will go a long way to deciding whether they will wish to accept a postponement, which I profoundly hope they do. Do not think that we are in a little bubble here which has no implications for anything else.

This country has a long record of accepting international treaties. This country has a long record of sending its Ministers, particularly its Foreign Secretary, out to negotiate under the royal prerogative. It was a great mistake when we changed the royal prerogative and the right of a Minister to go into an international treaty to trade across the table and to come back to Parliament and ask for a yes or no. That is how we have dealt with international treaties. The obligation has been on Ministers—the Foreign Secretary and everyone else—to talk with their opposite numbers throughout a treaty-making process so that there was built-in consideration of the bipartisanship of foreign policy. Do we deny that virtue that we have had over centuries in this House and in another place, whereby international politics was, if possible, conducted under bipartisanship? Are we throwing all that out too?

Time after time during this process we have failed to understand that our own constitution is a check. Parliament—we here and those in the House of Commons—voted for a referendum, yet what does the country see? It sees an elite in both Houses, and in London, blocking the decision democratically made by the electorate in the referendum. Shame on you if you do anything to let that happen.

My Lords, I understand that the European Union has made it clear that, for an extension to be granted, it must know the reason for it. I would have been much happier with a decision in the House of Commons—not necessarily through this sort of procedure—that told the Prime Minister, by agreement, what it wanted to give as the reason. This is a fundamental part of the Bill. It is asking the Prime Minister to go and ask for an extension without specifying the reason to be put forward. Surely if the House of Commons requires the Prime Minister to do that, the minimum it should do is give an instruction as to the basis on which it wants that. However, for reasons I do not completely understand, we are in this position.

It is worth remembering that the European Union said at the beginning of these negotiations, described so eloquently by the noble Lord, Lord Owen, that it was determined to agree the withdrawal agreement before any substantial discussion about the future. Therefore, it is now urgent to agree the withdrawal agreement. The Prime Minister’s agreement with the European Union has come before the House of Commons a number of times, yet, as far as I know, no Amendment to it has been proposed. Surely if we are dealing with the withdrawal agreement, it is important that what is wrong with the Prime Minister’s one, in the eyes of the House of Commons, is made clear in an amendment to it. Of course, the European Union says that it will not agree to such an amendment, but if the option is a no-deal departure instead of an agreed departure, the European Union might well prefer a revised agreement. I do not know whether that is the case—needless to say, I am not party to these negotiations. I do not intend to be here all night either.

I am trying to understand what is going on. I believe that we need to concentrate on the withdrawal agreement. Nearly all the discussions in the House of Commons, so far as I have been able to follow them—they are quite detailed—have been about the future relationship. One problem is the provision in the present agreement about the future arrangement in the shape of the Irish backstop. It seems to me that that should not strictly be part of the withdrawal agreement, but part of the arrangements for the future. That is a possible amendment to the Prime Minister’s deal that might be of some interest.

I am most grateful to my noble and learned friend. The House of Commons passed a Motion saying that the agreement should be amended to replace the backstop. That is what the House of Commons decided but, unfortunately, the Government do not appear to have asked the European Union to do that.

I understand that. To ask to amend the agreement is one thing, but to tell them the specific alteration is another. I am very familiar with that particular Motion, which passed. The point that I am trying to make is that if you want to change a document, you should propose the Amendment you have in mind. The amendment tabled—very wisely, if we wanted to get some agreement—did not do that. All it said was that we must get alternative arrangements. What alternative arrangements likely to be suitable? This point seems very important.

Has the EU not made it absolutely clear that it is impossible to reopen the agreement?

That is what it says, but why should we accept that? It is supposed to be a negotiation. If we wanted an alternative arrangement, I should have thought that the position should be us saying what that alternative is. I have heard, “We don’t know what the UK wants”, again and again. A specific Amendment to the agreement might well be subject to further consideration.

My Lords, the House of Commons sent us a Bill that its Members consider urgent. We should get on and consider its merits and demerits. Forty-nine noble Lords have put their names down for Second Reading, including the noble Lord, Lord Forsyth. There will be ample time during Second Reading for all these points to be explored. I suggest that we get on and do it.

My Lords, when the great US Constitution was written, there is a story of, I believe, Thomas Jefferson—

Noble Lords:

Order!

My Lords, I understood that the noble Lord, Lord Pannick, moved that the Question be now put. If he did not, I would like to do so.