Amendment 5

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

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Photo of Lord Goldsmith Lord Goldsmith Labour 3:30 pm, 8th April 2019

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.