Amendment to the Motion

Business of the House - Motion on Standing Orders – in the House of Lords at 5:55 pm on 4 April 2019.

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Lord Hamilton of Epsom:

Moved by Lord Hamilton of Epsom

At the end to insert “but in view of the exceptional constitutional implications of the proposal put forward, regrettably without agreement in the Usual Channels, for its exceptional consideration in the House of Lords, the House shall not resolve itself into a Committee on the bill until at least 24 hours after a report from the Constitution Committee on the bill has been laid before the House.”

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

Your Lordships will be glad to know that I will not detain the House for very long, but if your Lordships’ House is not the guardian of our constitution, I do not know who is. There has been much talk, and the case has been made, about how awful these procedures are in introducing this extremely bad Bill to this House as a private Bill. The real concern we should have about it is that it came from the Back Benches in the other place. If legislation of this importance can be initiated from the Back Benches, we are in very serious trouble. As my noble friend Lord Lawson pointed out, we have an unwritten constitution. Like all unwritten constitutions, it is amended by precedent. The idea put forward by the right honourable Lady Yvette Cooper and Sir Oliver Letwin that somehow this is just a one-off is completely misleading. That is not the way our constitution has developed over the years.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

The previous five amendments have been defeated heavily—more heavily each time. What purpose is being served by the noble Lord moving his amendment now?

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

The purpose being served is that we are able to debate these issues, which are extremely important, and that, with a bit of luck—I do not put an awful lot of money on it—this Bill will never reach the statute book. It is a very bad Bill that creates an appalling precedent. I will not take too many lessons from the noble Lord, Lord Foulkes, on talking at inordinate length, making the same points over and over again because, let us face it, we went through that experience with the EU withdrawal Bill, when a very large number of completely pointless speeches went on absolutely interminably. We on this side of the House had to sit here listening to them. We could not closure them because we did not have the majority to do so. I do not need any lessons from the noble Lord on this. If you introduce a Bill this vulnerable, you obviously run an enormous risk trying to get it on the statute book. That is what is being proved now.

Let us concern ourselves with what is happening to our constitution and our arrangements, which have worked for a very long time. I believe it might be that the usual channels are finally getting themselves back into some sort of order again and maybe discussing the future of the Bill. Was it not a tragedy that it was not possible for them to arrive at some solution for the Bill some time ago? We have to be very careful about allowing hard cases that produce bad law. In the same way, when we have a problem of this sort and we start to change our constitutional arrangements, everyone will refer back to what happened and say, “Well, it happened before, didn’t it? Why shouldn’t it happen again?” This indicates to me that the Opposition have given up any chance whatever of being the Government of this country. If they think that, were they in government and we were in opposition, we would not use machinery like this to make life very difficult for them, they have another think coming.

We have got to consider very carefully what is happening now. One reason why this is such a terrible Bill—we will get on to this at Second Reading—is that it inhibits my right honourable friend the Prime Minister from asking for an extension of Article 50, as she had undertaken to do. This makes it more difficult for her than it was before.

Photo of Lord Warner Lord Warner Crossbench 6:00, 4 April 2019

I have a question to put to the noble Lord, not to the House. He seems to be developing an argument in which there are two classes of Bill that come from the House of Commons. He argues that this House should consider whether a Bill passed by the House of Commons is one which is appropriate for this House to consider or not. Can I be clear that this is the doctrine he is now trying to argue?

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

Quite clearly they are different sorts of Bills: either private Bills or public Bills. That is pretty obvious. This one seems to be a private Bill, which, as my noble friend Lord Forsyth pointed out, did not even have anybody’s name on it when it appeared here because it had not had its First Reading. We are breaking all our rules to try to introduce this Bill, in a vain attempt to try to change the price of fish over these negotiations. What the Bill actually does is make life more difficult for my right honourable friend the Prime Minister, rather than easier. Why we would want to meddle around in this way, and mess about with our constitutional arrangements, I cannot understand. However, if the one good thing to come out of this is that the usual channels are at last starting to work again in your Lordships’ House, then we have something to be thankful for.

Photo of Lord Marlesford Lord Marlesford Conservative

My Lords, I will speak very briefly, following up the words of my noble friend Lord Lawson about the impact on public opinion of the procedures in Parliament in relation to this Bill, which could be very serious. The example I give to noble Lords is that of France, once our hereditary enemy, now our great friend. Why is it that France is so much harder to manage and govern than Britain? Let me give the obvious example. If public protests in Britain turn into violent riots, the public do not like it. Even if they agree with the original cause, they tend to tell Parliament to sort it out. When that happens in France, the French Government normally have two choices: send in the CRS to break their heads, or give in. They usually give in. It is extremely difficult for the French. This all dates back to 1789—

Noble Lords:


Photo of Lord Marlesford Lord Marlesford Conservative

It dates back to the French Revolution, and the failure of the then very inefficient monarchical Government, the Estates General. They met on 5 May and split, and the Third Estate—the people —went off to the tennis court and objected. The result was that, a few days later, the Bastille was stormed. The King was executed in February 1792, then came a year of terror between July 1793 and July 1794, which ended when Robespierre was guillotined. The French, therefore, are very conscious of the inadequacies of their form of government and of their Parliament.

Recently, seeking an outsider to run the show, they elected President Macron. They did not know very much about him, but they have now woken up to the fact that, far from being an outsider, he is actually the archetypal insider. They have shown their annoyance and rage through the gilets jaunes. We should consider the impact of this legislation—or rather, of the way it is being handled—on public opinion, because we do not want gilets jaunes here.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

My Lords, I declare my interest as a member of the Constitution Committee. I would like to make a brief intervention. Thanks to the sterling efforts of the committee, our learned clerk and our legal adviser, Professor Mark Elliott, overnight we were able to produce a brief report, which I want to refer to, because it is mentioned in this amendment.

The report was very much a rushed attempt. In the early hours of this morning I sought to rewrite parts of it, but the clerk explained to me that, sadly, my rewriting had been blocked by the spam filter on his machine. Therefore, I thought I better just add a couple of words to explain. The Constitution Committee has always sought to advise the House on fast-track legislation. Indeed, there are one or two Members of the House who served on the committee when it produced the 15th report in the 2008-09 session, Fast-track Legislation: Constitutional Implications and Safeguards. I would like to see a little more reference during the course of this debate to the fact that we warned people that fast-tracking should take place only in exceptional circumstances. It behoves everyone in this place to demonstrate that these are exceptional circumstances.

We also sought to emphasise the need for effective parliamentary scrutiny. We set this out in our report. However, as a member of the Select Committee, I would have preferred far more time to get into more detail. I therefore refer the House to a brilliant analysis of this Bill by Professor Mark Elliott, Public Law for Everyone. Before we proceed any further, we should be aware that this is, in a number of respects, a defective Bill, and we have to be very careful how we proceed.

It was acknowledged in the other place by Oliver Letwin—the previous acting Prime Minister, before the noble Baroness, Lady Hayter, took on the role—that there were drafting difficulties. He explained that it did not really matter very much because these would be dealt with and considered,

“in the Lords stages of the Bill”—[Official Report, Commons, 3/4/19; col. 1064]

Therefore, we must ensure that we have enough time to look into those defects. Trying to take all the stages of this Bill in one day, which is what the noble Baroness would have us do, may lead to us enacting defective legislation.

I am very grateful to the Printed Paper Office for making available our report, Fast-track Legislation: Constitutional Implications and Safeguards. I hope noble Lords will look at it before we proceed very much further with the Bill. It is necessary reading if we are to undertake this unusual attempt to fast-track a Private Member’s Bill.

We identified a key constitutional principle, as set out on page 8:

“The need to ensure that effective parliamentary scrutiny is maintained in all situations. Can effective scrutiny still be undertaken when the progress of bills is fast-tracked, even to the extent of taking multiple stages in one day?”

We went on to say that another fundamental constitutional principle was:

“The need to maintain ‘good law’—i.e. to ensure that the technical quality of all legislation is maintained and improved”.

We then asked:

“Is there any evidence that the fast-tracking of legislation has led to ‘bad law’”?

We as a House have to ensure that we do not enact bad law as a result of fast-tracking. That is all I wanted to say.

As I explained in a previous debate, I object to the idea that there should be a second referendum when it was the second referendum that created this problem in the first place. I do not want to stray too much, but I was the chairman of the Conservative Group for Europe in 1975, and I fought hard in the first referendum and fought hard again in the second referendum. I say to every Member of the House, whatever their strong feelings on this issue, for heaven’s sake, please do not let us have a third referendum. Let us get this sorted out. Let us respect the result of the second referendum but make sure that we do so by passing good legislation.

Photo of Lord Kinnock Lord Kinnock Labour

And you haven’t changed a bit.

Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Shadow Spokesperson (Business, Energy and Industrial Strategy), Shadow Spokesperson (Exiting the European Union), Shadow Deputy Leader of the House of Lords, Shadow Spokesperson (Cabinet Office)

It’s the way he tells them.

Two interesting and different things have just been said by the noble Lord, Lord Hamilton, who very honestly confessed that he hoped the Bill would never reach the statute book—let us be clear; that is what all this is about—as opposed to the noble Lord, Lord Hunt, who says, “I want it done properly”. To some extent, the noble Lord, Lord Hamilton, may achieve his aim without having to put his amendment to the vote. His amendment says only that we should not go into Committee,

“until at least 24 hours after”,

the Select Committee on the Constitution has published its report. That was done at 11 am today. Given the way we are going, I think we are going to meet his target: it will be 11 am tomorrow before we go into Committee, so he may have achieved that without having to put it to the vote.

What we know is that no matter how much we want, ideally, to have time to do this legislation properly—in the “as normal” sense—we are not in normal times. It is simply no good putting this off so that by the time we get through it, and have had very clever people getting it right, it is too late. I hear what the noble Lord, Lord Hunt, says about there being things in the Bill that we may want to alter but spending time now on whether we consider the Bill, and how we deal with it and the need for corrections, makes it less likely that the Bill will end up in a proper state. Without having to do so officially, I hope that we can move to vote now on the amendment from the noble Lord, Lord Hamilton. I think we can reject it because it actually will be 11 am before we get into Committee.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

My Lords, I beg to move that the Question be now put.

Noble Lords:


Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

I think that the noble Lord, Lord Foulkes, put his Question first.

Photo of Lord Fowler Lord Fowler Chair, House of Lords Commission, Lord Speaker, Chair, House of Lords Commission

I think we will go on to the amendment of the noble Lord, Lord Hamilton. The Question is that the amendment in the name of the noble Lord, Lord Hamilton, be agreed to.

Ayes 62, Noes 235.

Division number 13 Business of the House - Motion on Standing Orders — Amendment to the Motion

Aye: 60 Members of the House of Lords

No: 233 Members of the House of Lords

Aye: A-Z by last name


No: A-Z by last name


Lord Hamilton’s amendment to the Motion disagreed.