European Union (Withdrawal) (No. 5) Bill - Second Reading

Part of the debate – in the House of Lords at 10:26 pm on 4th April 2019.

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Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union) 10:26 pm, 4th April 2019

My Lords, as this is not, of course, a government Bill, I am sure noble Lords will be delighted to know that I can keep my remarks brief. Legislation has been debated, scrutinised and passed by this House since July 2016 to prepare for our exit from the EU, including many statutory instruments that noble Lords have scrutinised thoroughly to ensure that in any scenario, our statute book will function properly and appropriately. At the most recent count, more than 500 statutory instruments have been considered by the SLSC and more than 200 SIs debated by this House under the affirmative procedure. However, the Bill before us today in the name of the right honourable Member for Normanton, Pontefract and Castleford offers little but constitutional ambiguity and greater, not less, uncertainty. The Government strongly oppose the Bill.

I agree with many of the criticisms of the noble Lord, Lord Howarth, my noble friends Lord Howard of Lympne, Lady Noakes and Lady Neville Rolfe, and the noble Baroness, Lady Deech. The approach to this Bill risks setting an unhealthy and constitutionally irregular precedent for this and future Governments. The noble Baroness, Lady Deech, asked me a simple question: do we need this Bill at all? The simple answer is no. Most importantly, the fundamental flaws in its drafting not only undermine what it seeks to achieve but may even increase the risk of an accidental no deal next week. I also note the Lords Constitution Committee’s report and thank it for its efforts to produce its report so quickly.

Noble Lords will recognise the ambiguity that would arise should the Bill pass, particularly regarding the royal prerogative and the long-established convention that the Government of the day lead on our international negotiations. Heads of Government are able to enter into international agreements without preconditions set by the House that constrain their ability to negotiate in the national interest. This Bill not only calls that ability into question, it does nothing to provide any clarity on what we should, in fact, seek.

The other place has consistently demanded greater certainty for businesses and for citizens. Despite this, noble Lords will no doubt be very alive to the risk that the conditions imposed by the Bill bring to life the very real possibility that we cannot agree an extension in time, a point well made by the noble Lord, Lord Pannick, by my noble friend Lord Cathcart and at the end by the noble and learned Lord, Lord Goldsmith. This is because the Bill creates a new parliamentary process whereby any counteroffer on the extension of the Article 50 period by the EU must be put to Parliament and agreed on the day after the offer is made by the EU. As we saw at the European Council on 21 and 22 March, when the original extension was agreed, it requires a request by the UK, a decision by the 27 EU member states and then agreement from the UK.

I am pleased to say that yesterday the other place approved a government amendment to the Bill to change the parliamentary scrutiny procedure that applies to an SI, amending the definition of “exit day” from affirmative to negative.

The Bill creates processes that increase the risk of us being timed out, but, even if agreement were possible in time, we would still need to ensure that any extension agreed in international law was reflected in our domestic statute book. The Government considered it prudent to seek to amend the Bill to make the SI needed for this purpose subject to the negative procedure to ensure that our statute book reflects international law.

However, I regret that the other place did not pass the amendment that the Government put forward to address the dangerous constitutional precedent set by this Bill overall. It would have protected the Government’s ability to reach an agreement with the EU on an extension to Article 50. In doing so, it would have clarified the position on the royal prerogative to ensure that nothing in the Bill would prevent the Government being able to seek and agree an extension.

The Bill therefore remains fundamentally flawed. It could tie the hands of the Government and bring about a situation contrary to the purpose expressed by its movers. This legislation is not a sensible or desirable approach to take and I urge noble Lords not to support it.