Amendment to the Motion (1)

Business of the House - Motion on Standing Orders – in the House of Lords at 5:02 pm on 4th September 2019.

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Baroness Deech:

Moved by Baroness Deech

Leave out from “move” to the end and insert “notwithstanding the resolution of the House of 28 January that Her Majesty’s Government should provide sufficient time for this House to ensure the timely passage of legislation necessary to implement any deal or proposition that has commanded the support of the majority of the House of Commons, considers that a guillotine motion is entirely contrary to the spirit and practice of the House of Lords”.

Photo of Baroness Deech Baroness Deech Crossbench

My Lords, here I stand; I can do no other. But I am fortified in my message by the examples of the noble Baroness, Lady O’Neill, the noble and learned Baroness, Lady Scotland, and the noble Lord, Lord Anderson of Swansea, who made similar protests about the use of the guillotine during the debate on the then parliamentary voting system Bill in January 2011. Like most noble Lords—or so I hope—I was raised to believe in the rule of law and its exemplification in the Parliament of the UK. I taught law, I have reformed law and I have regulated the legal profession. We took it for granted. I studied law because of my enthusiasm for fair treatment and justice.

More than that, the prestige of the legal profession and the prestige attached to our parliamentarians depended on this. I say “depended” in the past tense because, over the years, that prestige has been dissipated. I fear that it will now reach a new low. It began, most strikingly, with MPs’ expenses disclosures, such as for having a moat cleared or a piano tuned. It has continued with various misfortunes in both Houses, I am sorry to say. Noble Lords and honourable Members have ended up in prison, and some noble Lords have admitted serious breaches of our rules.

To be a parliamentarian today is almost to invite ridicule, and it is widely questioned why anyone would want the job. If this House accedes now to the constitutional outrage—the vandalism of procedures—represented by this Motion, I feel it will never recover. The viability of this House has been fragile for a while. Many see no utility in it, and many more resent it for its overwhelmingly remain attitude, flying in the face of those who voted leave for very good reasons and being cavalier about their attitudes, beliefs and very entitlement to the franchise.

The one area where in normal times this House cannot be faulted is its scrupulous attention to the details of legislation that comes to us in draft form from the other place, as has already been mentioned. Today that very function, our modern raison d’être, may be about to be wiped out. Your Lordships know very well how much time is spent improving that legislation and asking the other place to think again, whether it is for the protection of young people from social media ills, the preservation of neighbourhood pubs, the autonomy of universities or the reporting of child poverty. We have much to be proud of. All this good work is now to be set at naught in this attempt to force this House to abandon its rules, good sense and reputation and to make it subservient in every detail to the House of Commons’ wishes in order to promote a Bill that will make the whole nation subservient to the will of the European Union, which I cannot describe as good will.

There was a reference by a noble Lord on Tuesday to “elective dictatorship”. This is it: a cobbled-together majority—not even a straightforward opposition group but a crowd who think they know better than the leave voters and the upholders of the constitution—dictating to this House how to run or not run its affairs. The remainers have hijacked Parliament to prevent Brexit.

What about our scrutiny of this most important Bill, which if passed is likely to sabotage our well-being for years to come? The Motion indicates no Question put,

“brought to a conclusion at 5pm on Friday”, no points of order admitted, mere minutes in which to table amendments and concluding stages without debate. It is all designed to prevent questioning and testing.

The Opposition have made it plain that they regard current circumstances as so extraordinary that only a fast-track procedure will do, and that it is therefore justified, but it is precisely when circumstances are extraordinary that normal procedures should be followed and calmer judgment allowed to prevail. Do not forget how the former Prime Minister, John Major, used the device of a confidence Motion to force the Maastricht treaty on us, or how Tony Blair decided not to wait for the resolutions of the United Nations before calling a vote on Iraq. How unfortunate was the result of getting a vote to start a war, setting aside the royal prerogative, and all the consequences of that?

It is true that there have been fast-tracked Bills in previous years. They often—but not always—concern terrorism, where there were real emergencies in, for example, 1974, 1998, 2001 and 2005. There have been others, not necessarily connected with an emergency. Your Lordships’ House was sufficiently concerned about these that the Constitution Committee’s 15th report in 2009 inquired into accelerated legislation. The committee said:

“While we accept that from time to time exceptional circumstances may arise requiring the Government to prepare, and Parliament to deliberate on, a bill according to an expedited timetable there are obvious risks, especially where the bill deals with a complex social and legal problem … We have identified five constitutional principles which we believe should underpin the consideration of fast-track legislation”, including:

“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?”.

Clearly not. The organisation, Liberty, of which the noble Baroness, Lady Chakrabarti, was then director, complained to the Constitution Committee that fast-tracking had been used when there was no real emergency, that provisions were not being given proper scrutiny because the emergency need was overblown. How tunes have changed.

The report highlighted the need to maintain “good law”—that is, to ensure that the technical quality of all legislation is maintained and improved. There will be no opportunity to examine this most detailed, personal Bill, which undercuts sovereignty by subjecting what remains of it to the European Union. So much for taking back control. The ball is about to pass for all time to the EU. Both Houses and the Government will be stripped of their ability to determine the best outcomes for the British people. This House is proudly self-regulating. Today’s Motion regulates this House and its Members for motives that I question.

Then the Constitution Committee referred to:

“The need to ensure that legislation is a proportionate, justified and appropriate response to the matter in hand and that fundamental constitutional rights and principles are not jeopardised”.

The answer to that is plain. The entire constitution of this country and its standing in the world are at issue and are to be dealt with in hours. The need to maintain transparency is also at issue. An observer would not know what was being decided here—why, when or how. There would be little in Hansard to help future generations understand why their destinies were being handed over.

There is no emergency here. It is more a reflection of what the Constitution Committee report referred to as the “something must be done” syndrome. The possibility of no deal has been recognised for three years. I have heard the noble Baroness, Lady Smith, say outside this Chamber that we have said everything that could possibly be said about no deal. We would have been coming up to a recess, in any case. Yet both Houses, despite all this, have passed legislation requiring us to leave the European Union on a certain date and have constantly asked for updates on negotiation. There was plenty of time in the past and there will be time in October if there is a real emergency.

The only possible use of a no deal Bill such as this—not that I would ever approve of such a Bill—is when we know in mid to late October where the negotiations have got to. If nowhere, that might be the time for a rushed Bill, but the only purpose today of this accelerated procedure and the substance of the Bill is to signal to Brussels plainly that its remain supporters here are willing to accept whatever conditions, whatever payments, whatever handicaps in trade that Brussels wants. It is impossible for anyone to negotiate in those circumstances. It is like sending a naked gladiator into an arena of lions now rather than in October.

It is as plain as a pikestaff that if Brussels were convinced that no deal was acceptable, there would have to be a coming to terms and a real kickstart to negotiations on the grounds of partnership and equality, which have not so far come into play. This procedure and this Bill are frankly designed to keep us in the EU for ever, overturning the result of the referendum and to try to change public opinion by dangling the fearsome prospect of no fresh food and traffic jams at ports. Real risks they may be, but fear, whether of terrorism at the Irish border or delays in manufacturing, is not what should be uppermost in our minds.

The Constitution Committee report concluded that this House’s constitutional responsibilities are heightened in circumstances when fast-tracked legislation is being proposed. It is therefore incumbent on this House, it said, to ensure that the standards of legislative scrutiny are maintained. The Committee even recommended pre-legislative scrutiny. It called for greater justification of the need for a fast track—a justification which I believe is lacking in today’s circumstances.

Why do I take this so seriously? It is because procedural propriety is a vital ingredient of the rule of law. Lord Bingham, one of the most distinguished judges of the previous century, left a legacy: his definition of the rule of law. He said, inter alia, that the law must be accessible, intelligible, clear and predictable; and that it must afford adequate protection for fundamental human rights. I do not know whether my human rights will be affected by any condition that the European Union might impose in the next few months. He said that the state must provide a way of resolving disputes which the parties cannot themselves resolve, and that the rule of law requires compliance by the state with its obligations in international, as well as national, laws. This Bill, if passed, will override not only all the legislation of the last three years—predicated on our leaving, first in March and then in October—but the requirement in Article 50 that we are out after two years. The procedures before us today are not fair because they do not allow the other side to be heard—or, as we lawyers say, audi alteram partem—and they trifle with precious freedoms.

Going back one stage, one can see how the separation of powers—the division of responsibilities between the Executive, the legislature and the judiciary—has been blurred in a damaging way in the last few months. The Government have had control over the business of Parliament since the 1880s, when the minority Government of William Gladstone voted to give them- selves precedence over all other parliamentary business. This can be justified as ensuring that the manifesto of the governing party, for which the electorate voted, gets through. That is why there have been so many reports of another constitutional outrage; namely, the way in which the legislature has been able to take control over the Executive. We need, at this moment, utter propriety. I am sorry that the noble Baroness, Lady Boothroyd, is not in her place. How I wish that she were here to give us her opinion of how these constitutional manoeuvres have come about. This is a time when we need a political giant of impartiality to guide the way.

If, as some lawyers believe, it is possible to judicially review the decision to prorogue Parliament, bringing in the judges as arbiters over a political decision, then why not have judicial review of any law passed by an improper procedure, which I believe we are on the verge of doing?

I have said previously that this upending of procedure will one day be turned against those who now find it so useful. If—and one devoutly wishes that it will never come to pass—an extreme left-wing Government were to be in power, Members of the Opposition in this House might find that their unpopular reforms could be prevented or, alternatively, that laws which would have a more damaging effect than any form of Brexit are rushed through Parliament to enable the extreme elements of a party to take control and get what they want before the electorate has realised what has happened.

The procedure that the Opposition are backing today is not only a constitutional outrage but a two-edged sword. If there is one thing worse, on any account, than a no-deal Brexit, it would be a Government led by Mr Corbyn. Those who are so keen to protect, as they see it, the security of the British public by blocking no deal and stopping Brexit are not so keen to protect the country, and ethnic minorities in particular, from an extreme left-wing Government. Those of us who care about the reputation of the House, of its role, its respect, its standing and its future, and about the quality and effect of draft legislation, are calling for this procedural impropriety and guillotine to be rejected, now and in the future. I beg to move.

Photo of Lord Fowler Lord Fowler Chair, House of Lords Commission, Lord Speaker 5:15 pm, 4th September 2019

I inform the House that if Amendment 1 is agreed I cannot call any other amendments by reason of pre-emption.