Amendment 5

European Union (Withdrawal) (No. 5) Bill - Committee – in the House of Lords at 3:30 pm on 8th April 2019.

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Lord Goldsmith:

Moved by Lord Goldsmith

5: Clause 1, page 1, line 21, leave out subsections (6) and (7)

Photo of Lord Goldsmith Lord Goldsmith Labour

My Lords in moving this amendment, with the permission of the House I will also comment on Amendment 7 because the two are connected. I start with two realities. The first is that the most important purpose of this Bill is to ensure that we do not crash out or leave on Friday without a deal. It is critically important, therefore, that an extension is agreed before Friday. The second—

Photo of Lord Goldsmith Lord Goldsmith Labour

I will not give way because the noble Lord has not even heard what I am trying to say.

The second point is that it is very clear that we are running out of time—or running out of road, to go back to the Question in Oral Questions. If we can pass the Bill today, as I explained at the conclusion of Second Reading, it can return to the other place and be agreed and a Motion can then be passed to inform what the Prime Minister does on Wednesday.

When the Prime Minister puts forward a resolution, it may be agreed by the other place but other possibilities arise. One is that the request is put to the Council but the Council comes back with a counter proposal—a different date. I doubt from my experience of European negotiations that it will be quite as neat as that, because these things tend to happen in discussions and something will emerge. That will be important when I come to explain one issue about the Bill as it stands.

The point was also made powerfully at Second Reading that it is necessary to give the Prime Minister the flexibility to be able to agree to something put to her by the European Council if that emerges in the course of debate. Amendment 7 in the name of the noble and learned Lord, Lord Judge, the noble Lord, Lord Pannick, the noble Baroness, Lady Ludford, and myself is designed to deal with that possibility. There was strong support at Second Reading for being able to use the royal prerogative so that the Prime Minister would be able to make such an agreement. Amendment 7 would enable that to take place and avoid a situation where we might accidentally end up with no deal because there simply has not been time to go through all the processes.

So what does that have to do with this amendment? This amendment would remove subsections (6) and (7) of Clause 1, which would require a Motion being put to the other place in the event that the European Council comes up with a proposal. The reason for removing those subsections is twofold—for simplicity and to promote legal certainty. It promotes simplicity because it does not require there to be another stage of backwards and forwards in the very limited time before Friday. If the proposal had to go back to the other place and be agreed and then something was then put forward, we could find ourselves in a situation where we accidentally dropped out of the European Union without having reached the point that we wanted to.

Photo of Lord Goldsmith Lord Goldsmith Labour

I will give way to the noble Lord, but this will be the last time.

Photo of Lord Framlingham Lord Framlingham Conservative

It may be the only time I ask. The noble and learned Lord started his remarks by using the phrase “crashing out”. Everybody talks about crashing out. The BBC talks about crashing out. Sky News talks about crashing out. It has been part of the propaganda all along. Precisely what problems will be caused if we leave this coming Friday?

Photo of Lord Goldsmith Lord Goldsmith Labour

I respectfully invite the noble Lord to read fully the debate at Second Reading, where that was explained by a number of noble Lords.

Amendment 5 would take out subsections (5) and (6). The first reason to do that is to avoid the problem which could result in us running out of time; that is, the matter having to go to the other place and then come back. We have the safeguard that that amendment would require that the extension agreed by the Prime Minister could not end earlier than 22 May 2019. That is an important part of the amendment that is about to be proposed. We are safeguarding ourselves against leaving without a deal.

Legal certainty comes into it for several reasons. First, if noble Lords look at the Bill, they will see that subsection (6) refers to the condition in subsection (7) being operated because,

“the European Council proposes an extension of the period specified in Article 50(3)”.

There may be a question about whether there has in fact been a proposal.

Photo of Viscount Hailsham Viscount Hailsham Conservative

If the noble and learned Lord’s Amendment 5 is carried and Amendment 7 is carried as well, is it not possible for the Prime Minister to agree a date which is never subject to parliamentary ratification?

Photo of Lord Goldsmith Lord Goldsmith Labour

So far as domestic law is concerned, in any event there will need to be a statutory instrument to change the exit day. I accept that in relation to domestic law, and we have had the debate about international law. A Motion will be put to the other place, which will have a full opportunity to express its views about the date, and in that way it is the subject of careful consideration. We accept that the Prime Minister needs the flexibility to be able to agree what is proposed by the European Council. The mood music we hear, if we read what is going on in the press, seems to be much more that we are likely to find that there is some meeting of minds—that there is some accommodation from the European Council—and I am less concerned about that. I am concerned about the risk of legal uncertainty, which I was just explaining.

Part of it is that we may find it difficult to be sure whether the condition in subsection (6) has been satisfied. It requires that the European Council has proposed an extension, but that may not be the way it works because in discussion and negotiation it may be questionable whether the proposal has come from the European Council or from the Prime Minister herself in the course of negotiations. Secondly, if the condition is triggered, under subsection (7) the Prime Minister must move a Motion in the House of Commons in the form set out in subsection (2) stating that that House agrees to the Prime Minister seeking an extension. How is this going to work in circumstances where as a result of a negotiation the Prime Minister has in effect reached an agreement with the European Council about what the extension should be? How does she then receive an instruction to agree a date that has already been agreed? It creates those difficulties of legal certainty.

The further reason, and the most important, is that if we insert into the Bill the amendment proposed by the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, supported by the noble Baroness, Lady Ludford, and myself, we would then have one provision saying that nothing in the Act prevented the Minister of the Crown from seeking or agreeing to an extension, and other provisions that seemed to suggest that as a result of the Act there needed to be prior permission from the other place, although they do not perhaps say so explicitly. That is a recipe for legal uncertainty and for litigation. This process has already been subject to litigation. As one of those who get involved in these things, I do not doubt that that would result in more litigation. That is not helpful to certainty.

I am putting forward this amendment to promote the simplicity of the process, to enable us and the other place to get through by the time when otherwise our period would expire, and to avoid legal uncertainty.

Photo of Lord Goldsmith Lord Goldsmith Labour

I give way to whoever would like to speak on the opposite Benches.

Photo of Lord Faulks Lord Faulks Conservative

I entirely agree with the noble and learned Lord that it is most important that there should be as much legal certainty as there can be, but also that the Prime Minister should have the proper role and authority to negotiate. However, does he agree that the royal prerogative exists to allow the Prime Minister to negotiate on our behalf in international and foreign relations unless Parliament actually restricts that authority? That of course was the subject of the Gina Miller case and the reason behind that decision. If we say nothing about the restrictions on the Prime Minister, she will be able to rely on the royal prerogative.

Photo of Lord Goldsmith Lord Goldsmith Labour

The noble Lord is quite right that that is a very important point. It was raised at Second Reading that the Government felt strongly, and I understand why, that the royal prerogative should not be subject to at least inadvertent erosion. Of course it has been eroded in certain respects over the years; we do not need to go into what they are but they include treaty making and waging war.

I take from the noble Lord’s point this observation: one great benefit of the amendment proposed by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, is that it makes clear that the royal prerogative is being maintained. I want to avoid seeing that apparently contradicted by other provisions in the Bill.

I have one other observation to make. I said a few moments ago that there were certain things that could happen: the European Council might accept the proposal or it might come up with another one. However, there is a risk that there might be no agreement at all; that needs to be considered. We have had discussions with the Government. I look to the noble and learned Lord, Lord Callanan—I am sorry, the noble Lord. He should be noble and learned as he has had to deal with so much of this Bill already; we will see if we can arrange that. I anticipate that he will give an assurance that, in the event that there is no agreement, the matter will be brought to the other place as soon as possible. Indeed, we expect it to be brought there this week, otherwise it might simply be too late.

When the noble Lord comes to respond on this amendment, I look forward to hearing what he says about that, and I hope he will give us sufficient assurance that if there is in fact a failure to agree at the European Council meeting then the matter will come back to the other place, which will therefore be able to debate what should happen next. It should do so on an amendable Motion so that it can put forward and support its view on what should take place. I do not know whether it would be for the convenience of the House if the noble Lord could tell us now what he will be able to say but, if not, I look forward to hearing what he says when he comes to respond to the debate.

Photo of Lord Pannick Lord Pannick Crossbench

It is not grouped with this one.

Photo of Baroness Deech Baroness Deech Crossbench

I would be the mover of Amendment 6. I originally proposed with the Public Bill Office precisely the amendment that the noble and learned Lord, Lord Goldsmith, tabled. I am sorry that we were not able to communicate about it. However, it shows how wise it was for this House to have had the weekend to think about things. Not only has the temperature cooled a bit but it has given us the chance to read two very important reports that were hastily brought out over the weekend. I congratulate the members of the two Select Committees—the Constitution Committee and the Delegated Powers and Regulatory Reform Committee—and all those who worked to achieve this on getting the reports published. They raised an important issue and, to some extent, answered my question. My amendment would have been a probing amendment.

I tabled this amendment for clarification. After we have debated all the amendments, it will demonstrate even further just how toothless and pointless this Bill is. I was minded to put this amendment down for the following reason, which has also been suggested by the noble and learned Lord, Lord Goldsmith. Let us suppose that the Prime Minister picks up the phone to Brussels, or goes there, and they say they will give an extension for however many months, provided we pay more, or enter into discussions with Spain about Gibraltar, for example. I am glad to see the return of the royal prerogative because I assume that that will mean that she can simply say no and put the receiver down. As drafted, the Bill concerns only the date; it has nothing about conditions. The date may well be inextricably mixed up with conditions.

As things stand, there would be nothing to get either House involved, or to stop the Prime Minister rejecting or accepting such a condition. Moreover, if you look at the drafting—of course, you draft in haste and repent at leisure—Clause 1(2) requires her only to seek an extension, not to achieve or accept it, or anything like that. Going back to my phone call metaphor, if she seeks an extension, and picks up the phone to Monsieur Barnier and says whatever, and he says no or she does not like what he says, she puts the phone down—end of. I maintain that this Bill does not wholly achieve what it sets out to do, which is to stop no deal, but I am happy to see a return of the royal prerogative. I agree with the noble and learned Lord, Lord Goldsmith, that those two final clauses should be removed because they simply confuse the issue.

How wise we were to wait for those reports. The one from the Constitution Committee explains exactly what I have said. Paragraph 5(c) says:

“The European Council might agree to the extension but subject to certain conditions (e.g. UK participation in elections to the European Parliament)”.

I add in brackets that our human rights will be broken if we are still members of the EU and cannot vote—there was a case on this a few years ago. The report continues:

“If such a situation were to arise, the Bill would have no further application—that is, it would not impose any further duties on the Prime Minister nor make any relevant further provision”.

I am glad to hear that. In other words, if Monsieur Barnier says we have to enter into talks with Spain about Gibraltar, the Prime Minister can put down the phone and say no. We will come to the other report later in this discussion.

In sum, no deal is not blocked by this Bill, but the House of Lords is relegated, as has happened quite often, I am afraid, in all our interesting and productive debates about withdrawal. We do not get reported in the media and we are completely sidelined from future decisions by this Bill. If the amendment from the noble and learned Lord, Lord Goldsmith, is accepted, then mine will of course be withdrawn, but I am glad to get this clarification on the record.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Chair, Economic Affairs Committee, Chair, Finance Bill Sub-Committee

My Lords, I am rather confused as to what is going on here. Who is answering these important points?

A noble Lord:

The Minister.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Chair, Economic Affairs Committee, Chair, Finance Bill Sub-Committee

No, it is not for the Minister to answer them, as it is not a Government Bill. I do not know whether the noble Lord, Lord Robertson, is going to deal with these points, because we have the Opposition criticising the Bill, and seeking to amend it as we go along in Committee. To my mind—I am blessed with not being a lawyer—the noble and learned Lord, Lord Goldsmith, is riding two horses at once. On the one hand, he is saying that it is important that we retain the royal prerogative, because the Prime Minister has to be able to deal with the situation as it arises, and on the other hand, he says that we need this Bill in order to prevent the Prime Minister doing what she thinks is appropriate. If the noble Lord, Lord Robertson, is the sponsor of this Bill, perhaps he could enlighten us and deal with the important points which the noble Baroness, Lady Deech, has just made?

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, the noble Baroness, Lady Deech, accepted that Amendments 5 and 7 remove the concern that she otherwise had—that is what she told the House.

I support Amendment 5 in the name of the noble and learned Lord, and I also want to speak to Amendment 7, which has, as I understand it, now been grouped with Amendment 5.

A noble Lord:

Has it?

Photo of Lord Pannick Lord Pannick Crossbench

It is not on the list, but as I understand it, there have been suggestions that it would be helpful to the House if it debated Amendment 7 together with Amendment 5; that was what we were told by the Table Office. In any event, the noble and learned Lord, Lord Goldsmith, has referred to Amendment 7, and it may be helpful if I make my remarks as the person who has tabled Amendment 7.

A noble Lord:

They are not grouped.

Photo of Lord Pannick Lord Pannick Crossbench

They are not grouped on the Marshalled List, but I was informed that the Table Office had been invited to list Amendment 7 with Amendment 5. I am entirely in your Lordships’ hands as to what is of most assistance.

Photo of Lord Robathan Lord Robathan Conservative

Does this not reveal the chaos of the current procedure?

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I will do whatever the Chief Whip thinks is most appropriate in these circumstances, as I always do.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Captain of the Honourable Corps of Gentlemen-at-Arms (HM Household) (Chief Whip, House of Lords), Deputy Chairman of Committees, Deputy Speaker (Lords)

I thank the noble Lord. The papers for today were prepared when, at a rather late hour, someone arrived to suggest that these two amendments be taken together. I have no comment to make on that matter—it is for the House to decide. If the House decides that they should be taken together, they can be.

Noble Lords:

Take them together.

Photo of Lord Robertson of Port Ellen Lord Robertson of Port Ellen Labour

As the sponsor of the Bill, I suggest that they are taken together.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I can sense the mood of the House, and I am grateful to all noble Lords, particularly the Chief Whip.

The noble and learned Lord has already mentioned Amendment 7, which goes with Amendment 5. It addresses a practical concern that may arise at the European Council meeting on Wednesday night. The problem is that Clause 1 envisages that, if the Prime Minister is mandated by the House of Commons to seek an extension to a specified date, and the European Council then makes a counteroffer of a different date, the Prime Minister would have no power under Clause 1 to agree to that counteroffer. She would have to say to our European partners that she is required to return to the House of Commons on Thursday to seek its approval. She would have to say that notwithstanding the fact that the European Council is not going to remain in session—they are all going to go home. There is therefore a risk that, contrary to the aims of the promoters of this Bill, the restrictions on the Prime Minister’s powers contained in this Bill may cause a no-deal exit on Friday at 11pm. Therefore, Amendment 7 makes it clear that nothing in this Bill prevents the Prime Minister seeking or agreeing on Wednesday night in Brussels an extension of the Article 50 period, provided it is not to a date earlier than 22 May.

Photo of Viscount Hailsham Viscount Hailsham Conservative

I entirely understand the point about the Prime Minister agreeing to a proposal coming from the European Union. I am a little less certain about the desirability of enabling her to seek a date without prior parliamentary approval.

Photo of Lord Pannick Lord Pannick Crossbench 4:00 pm, 8th April 2019

This is a negotiation. It would be very odd to say she can agree a date but she cannot seek one. There has to be give and take. I think that there is general agreement around the House that the Bill, whether noble Lords are in favour of it or not, ought not to constrain the Prime Minister’s powers when she is conducting an international negotiation.

The noble Lord, Lord Faulks, asked whether this was really necessary: unless an Act of Parliament expressly takes away the Prime Minister’s prerogative powers, surely they remain. My answer is that there is a danger that it might be said that the Bill, by necessary implication by reason of its contents, takes away the Prime Minister’s prerogative powers. I think we would all agree that the worst of all possible worlds would be if the noble Lord, Lord Faulks, on Thursday morning was to be instructed by a client to go to court to obtain a declaration that the Prime Minister has acted in breach of her powers, given the Bill’s contents.

Photo of Lord Goldsmith Lord Goldsmith Labour

If I may assist, Clause 1(4) would require the Prime Minister to seek an extension of the period required by the House of Commons. We are then dealing with what happens after that.

Photo of Lord Pannick Lord Pannick Crossbench

I entirely accept that.

It is necessary to have legal certainty on the retention of the Prime Minister’s powers on such an important matter. That is why the noble and learned Lords, Lord Judge and Lord Goldsmith, the noble Baroness, Lady Ludford, and I have all put our names to Amendment 7.

Photo of Lord Howard of Lympne Lord Howard of Lympne Conservative

My Lords, I have listened with care to the speeches of the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, and the intervention from my noble friend Lord Hailsham. I do not have my noble friend Lord Forsyth’s advantage because I have the misfortune of having trained and practised as a lawyer, so I am in that difficult circumstance. I am confused by the exchanges that have taken place. I draw only one inference from them: this appalling piece of legislation is totally misconceived. It seeks on the one hand indubitably to constrain the exercise of the royal prerogative by the Prime Minister. That is its main purpose. Now we have amendment after amendment that seek to persuade us that it is only in some circumstances that the royal prerogative should be constrained and that in others it is absolutely necessary because, as the noble Lord just said, the Prime Minister must be able to make use of the royal prerogative when she is involved in negotiations of this kind. It is negotiations of this kind that the Bill is all about.

The fact is that the Prime Minister will be involved in negotiations about the date on which we exit the European Union, the conditions in which we do so and any terms that might be sought by the European Council to limit the extent to which we might be able to act in accordance with the result of the referendum. The Prime Minister will be engaged in negotiations of that kind. She ought to be able to able to exercise the royal prerogative when she engages in those negotiations, as the noble Lord said a moment ago. This ludicrous Bill, which seeks in part to restrain the royal prerogative and then to subtract from the extent to which it constrains it, is wholly misconceived and should never reach the statute book.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

My Lords, perhaps I could assist the noble Lord, Lord Howard, to see this situation in a different light when it comes to the European Council on Wednesday: as a happy blend of parliamentary accountability and government flexibility. I agree with the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, that the combination of Amendments 5 and 7 supplies both legal and practical certainty. They perhaps take away the complication that might be in the minds of the Council on Wednesday night about what happens if the Prime Minister proposes or agrees to a different extension to what is being discussed in the other place.

The noble and learned Lord, Lord Goldsmith, is also right that there could be some discussion about the difference in wording between Clause 1(7), about a proposal, and a scenario of agreement by the Prime Minister at the European Council. We need to remember that the specific context that is being addressed by Amendment 7 is envisaging what happens in those negotiations at the European Council. Like the noble and learned Lord, I look forward to the response from the Minister—

A noble Lord:

It is not the Minister.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

Perhaps if noble Lords listened to the end of a sentence they would understand what the speaker was saying.

I look forward to the response about the wording which the Government have apparently discussed regarding an amendable Motion if there is no deal on Thursday, as well as to the response from the Bill’s sponsor, the noble Lord, Lord Robertson.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, I think we should remember that there is no precedent, no parallel, to the situation in which we have found ourselves in recent weeks. As we said at Second Reading last Thursday night, a group of very courageous Members from both sides of the House, and from minority parties, came together to fill a vacuum. After that, the Prime Minister made her welcome overture to other parties, something that should have been done after the General Election when we lost our majority.

That changed the situation. Nevertheless, I believe that those who promoted this Bill were entirely justified in so doing. We have had this welcome development from the Prime Minister, so it is entirely sensible that the amendments moved by the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, should be accepted by this House. They give the Prime Minister, in this, the ultimate hour—because that is what we are talking about—the freedom to be able to negotiate on Wednesday. It would be manifestly absurd if she did not have that freedom.

We should accept these amendments. I think they improve the Bill. I very much hope that those in another place accept them in the spirit in which they have been moved, and then, perhaps, we can all move on.

Photo of Lord Judge Lord Judge Judge

My Lords, I had not intended to speak. I do not think that this is a good Bill. There have been much better Bills, and the process that we have been through has not been the House at its best, because events have forced the situation on us. Therefore, I apologise to the House. I did not put my name down to speak at Second Reading—I had not intended to speak at all. I support this amendment, because I think it will make a bad Bill rather better.

May I diverge, however? We are setting a precedent. There is no point in pretending that we have not set a precedent by what has happened. If I may, I offer this comfort: sometimes precedents do not have to be followed. This allows a precedent. I suggest to whichever side of the House is in power for the next 20, 30, 40 or 50 years that we do not allow it to be followed again. At least we should communicate our view that this, whether precedent or not—and it was—is a one-off and goes no further.

The point of Amendment 7 is very simple: we want to make the Bill a little better than it is by removing the constraints that are otherwise imposed on the Prime Minister. That, I respectfully suggest to the House, is desirable. As I do not intend to speak or have my speaking taken as support for this—

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

Does the noble and learned Lord accept that, with an unwritten constitution, it is impossible to guarantee that a precedent will be a one-off? It will be used by others when it is convenient for them to do so.

Photo of Lord Judge Lord Judge Judge

Of course it will be used by others. Lawyers use bad precedents constantly, but it does not mean that it has to be followed.

I did not intend to speak, for the reason I have given. This amendment will improve the Bill. That is the point of it. Beyond that, I do not wish to say any more, because it may indicate somehow that I am backing off from my concern about the Bill. So in lawyerly fashion I simply say that you have all heard the noble Lord, Lord Pannick. I agree with him. I have nothing to add.

Photo of Viscount Eccles Viscount Eccles Conservative

The noble and learned Lord tells us that it improves the Bill. Does it not change the Bill so materially that it is not the same Bill after all?

Photo of Lord Judge Lord Judge Judge

No, it does not. We have to face the context, which is that the Commons has passed the Bill. So we are not having the first go at it; we are having a go at it after the Commons has resolved it.

Photo of Lord Faulks Lord Faulks Conservative

The noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, have helpfully identified a problem with the Bill, in that a counterproposal by the EU could fall between the cracks and result in an accidental no deal, thus frustrating the will of Parliament, in so far as that will is ascertainable.

In the event of a counterproposal, which seems likely, the amendment suggests that the Prime Minister has the power to seek or agree an extension to a date not earlier than 22 May. At col. 337, the noble Lord, Lord Pannick, suggested that approval would still have to be sought for that new date.

I wholly understand the thinking behind the amendment, but the apparent need for it underlines the strange constitutional waters in which we are now swimming. My understanding of the Gina Miller case is that the Government argued that Article 50 could be triggered without parliamentary involvement, whereas the opposing argument, advanced by the noble Lord among others, was that Parliament had legislated in such a way that the royal prerogative was enough on its own and that Parliament need not be involved. By a majority this argument prevailed, although there were three dissenting speeches.

The prerogative, however, allows Ministers, and in this case the Prime Minister, to make or unmake treaties unless Parliament has legislated to restrict that power. It rarely does, hence the paucity of useful precedents in the Gina Miller case. It seems to me that the Prime Minister would be allowed to agree a counterproposal as a matter of law. Whether that would be politically sound is a different matter.

The response of the noble Lord, Lord Pannick, is that it is or might be uncertain, but it seems to me that this amendment in fact fetters the royal prerogative. We have a dualist system of law in this country, which has worked well, and I wonder if it is wise to undermine the royal prerogative in this way. To make a constitutional change of this sort needs prolonged and serious thought. A Private Member’s Bill that went through all its stages in the House of Commons in four hours, that was not given pre-legislative scrutiny and that, for good reasons, is hurrying through this House, is surely not the context in which to make significant constitutional changes.

Photo of Lord Goldsmith Lord Goldsmith Labour

Could the noble Lord enlighten me, at least, as to which amendment he is referring to?

Photo of Lord Goldsmith Lord Goldsmith Labour

Amendment 7 does not fetter. It actually says the opposite.

Photo of Lord Faulks Lord Faulks Conservative 4:15 pm, 8th April 2019

The amendment says, “nothing … prevents”, which I suppose could be said to be saying that the royal prerogative exists—so to that extent it is unnecessary—but it restricts what the Prime Minister can do in its final words. That is my answer to my noble and learned friend.

The wise words of the noble Lord, Lord Norton of Louth, at Second Reading about the constitution are particularly relevant in this context. One of the repeated observations from the EU is that it wants to know what the UK wants. In the context of this Bill, it will ask the reasons for the extension. What answer is the Prime Minister supposed to give, acting as an agent for this disunited Parliament?

This amendment is a worthwhile attempt to clarify the mandate, which apparently the Prime Minister has by virtue of this Bill, but I doubt it is necessary, for the reasons I have given, and I suggest that the House thinks long and hard before making such an important change.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

Will the noble Lord answer the points of concern of the noble Lord, Lord Pannick, as to why Amendment 7 is needed?

Photo of Lord Faulks Lord Faulks Conservative

I do not want to misrepresent what the noble Lord said, but he suggested that there might be some legal uncertainty and that, theoretically at least, I or some other barrister might be instructed to argue something in court, and this is to avoid legal uncertainty. I am all for avoiding legal uncertainty, but the existence of the royal prerogative can surely not be in doubt, and this is, I suggest, an attempt to fetter that royal prerogative.

I finish with this observation. Lord Reed, Deputy President of the Supreme Court, said in the Gina Miller case of the royal prerogative that the,

“the value of unanimity, strength and dispatch in the conduct of foreign affairs are as evident in the 21st century as they were in the 18th”.

This Bill and this amendment substantially undermine that strength.

Photo of Lord Trevethin and Oaksey Lord Trevethin and Oaksey Crossbench

My Lords, I am yet another lawyer. I apologise for that. I will not detain the House for long.

I respectfully agree with the noble and learned Lord, Lord Judge, that this came to the House as a bad Bill—I would say a very bad Bill. It sought to send the Prime Minister into the conference chamber not naked but wearing a straitjacket, and that was clearly inappropriate given the very delicate negotiations that are going to have to take place this week. As it stood, it was not proper legislation but, in the words of Nye Bevan, “an emotional spasm”.

I fully support the amendments proposed by the noble and noble and learned Lords. They are obviously necessary, bizarrely, to prevent the Bill having the inadvertent effect of increasing the risk of an accidental no-deal exit, so I fully support them. However, I am concerned that, if these amendments pass, the Bill will appear to be, and be, a bit of a mess. The Prime Minister has already, as I recall, made one request for an extension, which is outstanding; I doubt whether it will be accepted. After the Motion is passed in the House of Commons, a further date will be introduced and she will have to write another letter, I think, to the EU specifying another date. That will presumably displace application number one for an extension.

The amendments, which I support, would make it open to her to make a further, third, application for an extension, specifying a further date. That will displace, as I see it, the second application made pursuant to the Motion in the House of Commons. What is left of the Bill, as I see it, is nothing more than this: an edict from Parliament that the extension that the Prime Minister is able to seek cannot end earlier than 22 May 2019. If it had been restricted to that, we would have saved a lot of time.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

My Lords, I should like to pick up on something the noble and learned Lord, Lord Goldsmith, said about agreement on dates. As I understand it, the Prime Minister is asking to go to the end of June. Presumably she has Cabinet approval to do that.

A noble Lord:

Very unlikely.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

I agree, nobody knows. Let us hypothesise that she cannot go beyond that date. She goes to Brussels and says: “I would like to extend until the end of June”. Suppose that Brussels says: “No, we are frightfully sorry but we have agreed two dates with you already. One is in the context of no agreement and the other is in the context of the agreement being agreed by Parliament. We are not prepared to move from that”. I presume that the noble and learned Lord, Lord Goldsmith, will be answering on these amendments —I suspect the noble Lord, Lord Robertson, does not feel that responsible for this Bill, having taken it over from somebody else. What happens if the EU does not move from the two dates that it has already agreed, therefore still leaving us in the position where the Prime Minister will come back on Thursday and say, “I can get no agreement from the EU to change the dates it has already given us”? How in those circumstances will we not come out with no deal on Friday?

Photo of Baroness Deech Baroness Deech Crossbench

My Lords, as I mentioned before, there is nothing in this Bill specifically to stop no deal. It requires the Prime Minister to seek and seek again. The root of the trouble is that for more than a hundred years we have observed the separation of powers in our constitution. The noble Lord, Lord Norton, is one of the greatest experts on this—I think he is not in his place, but if he were he would probably say that that separation is sometimes not exact. However, this Bill is a very good illustration of why it is not a good idea to mix up the powers of the Executive and the legislature. I would like to hear from whoever is the surrogate parent of this odd little embryo quite how it will prevent no deal. An abortion?

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Chair, Economic Affairs Committee, Chair, Finance Bill Sub-Committee

Will the noble Baroness send a copy of her excellent contribution just now to the Minister for Children, who appeared on Radio 4 on Saturday morning and told an astonished nation that it was now illegal for us to leave without a deal?

Photo of Viscount Hailsham Viscount Hailsham Conservative

My Lords, I will make a brief intervention in the hope that the noble and learned Lord, Lord Goldsmith, will respond to it. I entirely understand that in negotiations—the noble Lord, Lord Pannick, described the situation in which the Prime Minister and the EU are negotiating—there has to be give and take. What disturbs me is this: the Prime Minister might decide in advance to move outside the dates previously agreed by Parliament and go with an entirely fresh date into a negotiation. That is different in kind from negotiating when they sat down to discussion. It would be a deliberate attempt to go outside what Parliament has previously agreed to. It seems to me that Amendment 7 would enable her to do that, and I am profoundly uneasy about that prospect.

Photo of Lord Goldsmith Lord Goldsmith Labour

My Lords, I will respond on my Amendment 5, which is the one that has been moved. A couple of points need to be emphasised.

As has been discussed already, we are in unusual circumstances, and they demand some unusual responses. This Bill does not take away or give back the entirety of the royal prerogative. It says—this is why I made an intervention earlier—that it is for the other place, on a Motion put forward by the Prime Minister, to say what date she should seek. It may be that the European Council will accept that date, in which case it is done so far as the negotiations are concerned. It may come back with a different date, and the questions we have been considering are for those circumstances. Does she have to seek approval during the next two to three days before she can respond to it, or is she able to respond by agreeing to it or by putting forward a slightly different proposal?

There are two different amendments—my amendment would remove the fetters requiring her to come back, and that of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, would enable her to reach an agreement without having had that prior approval. It seems to me that a balance is being struck between royal prerogative and necessary control by Parliament. It is absolutely the case—as the noble Lord, Lord Faulks, said—that of course the royal prerogative can be adjusted and amended by what Parliament says. On this occasion, the other place has said: “We believe that we should tell the Prime Minister what date she should seek. What happens after that will depend upon the circumstances but, whatever it is, it has to be done in this time”.

I invite the House to agree Amendment 5 and then we can move on to the other amendments.

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union)

As the noble and learned Lord, Lord Goldsmith, was kind enough to point out, I have not benefited from the disadvantages of a legal education, but I think I do know flawed and badly drafted legislation when I see it. Nevertheless, it remains the reality that this has been approved by the House of Commons, and that is a principle that I believe should be respected. Noble Lords opposite can be assured that I will remind them of their newfound enthusiasm to respect the will of the House of Commons when we come to future legislation.

I will comment first on the amendments. As my noble friend the Leader of the House said, the Government support Amendment 5, moved by the noble and learned Lord, Lord Goldsmith. This seeks to remove Clause 1(6) and (7) from the Bill. As currently drafted, should the European Council propose a different date to extend Article 50 from that agreed in Parliament by virtue of approval of the Motion as set out in the Bill, the Bill would require the Prime Minister to return to the House of Commons on 11 April and put the EU’s counterproposal to that House for approval through a further Motion. As the Government set out last week, we have very real concerns about how that would work in practice.

The Government hope that Amendment 7 will also be successful, which would allow us to reach agreement with the EU on Wednesday, so long as that extension ends no later than 22 May. The Government have been clear, as I said earlier, that we are seeking an extension to 30 June.

In response to the question posed by the noble and learned Lord, Lord Goldsmith, and the noble Baroness, Lady Ludford, scheduling of any further debates after the European Council on 10 April is a matter for the other place. I am sure it is paying close attention to our debates.

Photo of Lord Goldsmith Lord Goldsmith Labour

I think the Minister said, in relation to the date, “not later than 22 May”. It should be “not earlier than 22 May”. Perhaps he can confirm that. It is obviously a very important difference.

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union)

Yes, I take the noble and learned Lord’s point. He is right on that.

As I said, I am sure that the other place is paying close attention to our debates and will address this when the Bill returns to the House of Commons for further debate this evening.

Amendment 5 agreed.

Amendment 6 not moved.