Amendment to the Motion (2D)

Business of the House - Motion on Standing Orders – in the House of Lords at 10:28 pm on 4th September 2019.

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Lord True:

Moved by Lord True

After first “Commons” to insert “, and only once any current legal proceedings relating to prorogations in the English courts have been concluded”.

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee

My Lords, I am encouraged by every cry of “Oh no”, so please continue. In speaking to this amendment, I should explain that for convenience, to get these amendments down quickly, I agreed to have my name put to all the manuscript amendments that were tabled, which is why other colleagues, whose amendments they really are, have been speaking to them.

I agreed to raise this point. I do not wish to dwell on it because I am conscious of the sub judice rules and conventions in the House, as well as the extent to which we are able, or unable, to discuss pending cases because of the implications; if one looks at the relevant section of the Companion, one has to be extremely careful in talking about civil cases that have been committed for hearing.

We heard a lot today about so-called improper Prorogation, and so on and so forth. Improper Prorogation has been one of the main pretexts used by those who wish to import this extraordinary guillotine procedure into the House. In fact, it has been the main intervention I have had in my speeches: “What about this Prorogation?”. Well, what about it? As I understand it, the matter is being tested in the English courts. I think my noble friend Lady Noakes will talk about the situation in Scotland, where I believe there has been a resolution.

My point is that, with due respect to the courts and the system in this country, it seems extraordinarily odd to come forward with a Motion based on the pretext of Prorogation while urgent litigation is pending where a resolution is expected well in time, if it goes one way or the other, to enable more time to be given to this legislation. I have to some degree a mild spirit of concern but also an intention to point out that there is something of a paradox in some of the arguments here. I would not want to see any guillotine Motion in future in this country, but I believe that if those things are to be considered, we should be mindful of any contingent factors happening in the law courts before we commit and constrain ourselves to a course of action that might have been informed by something that is imminent.

I do not express myself well, but I think most people will certainly understand what I am saying. I put this down to really draw attention to my concern about this paradox and to ask what reaction the Opposition—the people with the power in this House now—would have if there were any change in the law or practice of the land as a result of changes in the courts. What impact would that have on their view about putting forward Motions such as this dreadful guillotine Motion? Because of sub judice issues, I may be unfairly restraining myself but, not being a lawyer, I do not understand these matters.

Photo of Lord Strathclyde Lord Strathclyde Conservative 10:30 pm, 4th September 2019

I intervene on my noble friend now, because if he moves his amendment the noble Lord, Lord Harris, will move the closure and I will not be able to—

Photo of Lord Strathclyde Lord Strathclyde Conservative

The noble Lord is not going to move the closure; he has given up. That would be a marvellous thing, would it not? It would be interesting to know whether my noble friend envisages, under his amendment, that a vexatious litigant could indefinitely stop a Bill by raising legal issues in different courts—for instance, in the English courts and/or the Scottish courts at the same time. Would that make it impossible for any kind of legislation to ever get through? I just wondered if he has thought through the implications, or perhaps he expects the Front Bench to have an answer to that question.

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee

Here is a reversal of roles. I spent about 13 years—I hesitate to say it—drafting the odd amendment for the noble Lord, Lord Strathclyde. Here is the noble Lord, Lord Strathclyde, suggesting there might be a flaw. I was really seeking a prop to inquire how the Opposition see all these legal actions—I believe some of them are not too far away—impacting on these proceedings and whether they think it is prudent to put the House of Lords through all this before awaiting an outcome of what is before the courts.

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

I am uniquely disadvantaged as well, because I am not a lawyer, but I always understood that the courts did not get involved in proceedings in Parliament. That would seem to be what has happened in Scotland today: the matter before them was considered to be not judiciable.

We ought to pay tribute to Gina Miller. Had it not been for her, we would not have been forced to ensure that Parliament passed the requirement for us to leave the European Union by a huge majority.

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee

My noble friend makes that point extremely well. I think all of us on this side feel very grateful for that and I fully endorse what he has said.

Photo of Lord Warner Lord Warner Labour

Will the noble Lord clarify this point? I recall in what he said about people who tried to use the courts to stop the progress towards Brexit that his former boss for whom he used to write speeches, somebody called John Major, seemed to be one of the people who was involved in that activity.

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee

I made my comments on Sir John Major’s action in a speech in this House a month or two ago and I do not need to repeat them. I am trying to avoid referring to these proceedings, perhaps unwisely. If the noble Lord, Lord Warner, wishes to google “Major” in my speeches, he will find my opinion of some of the actions we have seen lately.

I do not want to prolong this speech. I am just interested to know how the Opposition, which is leading and pressing on this, sees this range of legal actions fitting in to what it plans and proposes. They are purporting to run the business of our House. Have they given any consideration to what may be happening in the law courts? As I have said, that is where the power is. We do not have the power. In a spirit of inquiry, perhaps the noble and learned Lord, Lord Goldsmith, will tell us whether he has given any consideration to any litigation. He has certainly referred to the Scottish matter in putting forward this draconian guillotine.

Photo of Lord Goldsmith Lord Goldsmith Labour

As the noble Lord invites me to speak, I have a question for him. I notice that there are three amendments—one relating to the English courts, one relating to the Scottish courts and one relating to the Northern Irish court—all in his name. All are otherwise identical with the same principle—do we consider the Bill before that litigation has concluded? Does he intend that those should all be dealt with separately, one after the other, taking the time that that undoubtedly will? If that is what he intends, does he not agree that is a clear case of wasting the House’s time and delaying getting on to the legislative business?

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee

That is an extraordinary intervention from the noble and learned Lord. I try to avoid lawyers as much as possible. As human beings, I regard them as friends, but as professionals I try to avoid them. I thought that the English court system, the Scottish court system and the system in Northern Ireland were separate systems and they went on separate tracks. There is a separate political establishment in Scotland as well. The litigation in Scotland has been concluded whereas in England, as I understand it, it has not been started. I am amazed that a lawyer of the experience of the noble and learned Lord, Lord Goldsmith, can come to this House and suggest that three jurisdictions and three separate tracks should be wrapped into one. It is perfectly legitimate to inquire of him and the Opposition whether he has any regard for the other jurisdictions. Perhaps he is not interested in the results in Scotland because the case has not come out in the way that he wanted. Perhaps he does not want my noble friend Lady Noakes to talk about it. I do not accept his criticisms.

I do not know whether the noble and learned Lord was in his place earlier when we were trying to come to a point when we did not need to do this. The only reason we are here is because an exceptional, unprecedented, draconian, repugnant guillotine Motion was put down. Those opposite have the power. The only power that the minority have in Parliament is the power to resist; we still have that freedom. The right of Members to put down amendments is precious in this House and should not be criticised. The impatience of power which one hears from the noble and learned Lord, Lord Goldsmith, is unattractive, however charmingly he puts it, as he always does.

For my part, I am totally unrepentant, but I cannot speak for others. I hope there will be an agreement and do not believe that this is the way to do business in the House. In any conflict, everyone says, “They started it”, but in this case, they did start it. Any extreme action provokes a counterreaction, and the counterreaction here is to defend the liberties of this House. The moment that the noble and learned Lord, Lord Goldsmith, stands up to withdraw the guillotine Motion, I will scrub every amendment in my name. I cannot speak for others, although I see my noble friend Lord Forsyth nodding, because it is entirely down to them. Until then, we will advocate and speak for those freedoms. Perhaps we could be enlightened on how the Opposition, who are leading this, view the interrelation between the court cases and what they are doing on this Bill. I beg to move.

Photo of Lord Warner Lord Warner Labour

I suggest that the Question be now put.

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

I am instructed by order of the House to say that the Motion “That the Question be now put” is considered to be a most exceptional procedure and the House will not accept it save in circumstances where it is felt to be the only means of ensuring the proper conduct of the business of the House. Further, if a Member who seeks to move it persists in his intention, the practice of the House is that the Question on the Motion is put without debate. Does the noble Lord still wish to move the Motion?

Photo of Lord Strathclyde Lord Strathclyde Conservative

My noble friend has moved his amendment. It would be normal, when discussing an amendment to a major Motion, for somebody from one of the Front Benches to reply to him. In this case, the Motion was moved by the noble Baroness the Leader of the Opposition, so one would assume that someone from the Front Bench would wish to intervene. They do not have to but it is entirely normal practice. It adds to the flavour that something ugly is happening in this House when the Opposition refuse to interact in the debate. I put this to them: suppose that, on another occasion, there is a Bill before the House sponsored by the Government and noble Lords opposite make impassioned speeches and my noble friends on the Front Bench simply sit there, happily. Would that be okay? I assume that it would. For those reading this in Hansard, Members of the Opposition are nodding their assent.

Photo of Lord Goldsmith Lord Goldsmith Labour

I am surprised. The noble Lord, Lord Strathclyde, who I admire enormously, heard the intervention I made on the noble Lord, Lord True, which made it very clear what the position is on this amendment. It is a filibustering amendment, which is shown by the fact that the same amendment is proposed to be made three times.

Photo of Lord Henley Lord Henley Parliamentary Under-Secretary (Department for Business, Energy and Industrial Strategy)

The noble and learned Lord says that the same amendment has been put down three times. As my noble friend pointed out, the amendments deal with three completely separate jurisdictions. If the noble and learned Lord opposite is not prepared to answer the various questions put by my noble friend, obviously he will have to come back to this again and again, as he has the opportunity to do when we come to the later amendments. It might actually speed up the process if the noble and learned Lord took the trouble to answer some of the points that my noble friend has made. In that case, when my noble friend gets to those later amendments, whenever that may be, he might not feel it necessary to intervene on them. It would assist the House if the noble and learned Lord gave us the views of the Opposition Front Bench on this amendment.

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee

My Lords, I had sat down. I had hoped for a response from the noble and learned Lord, Lord Goldsmith. There was an attempt to move a totally unnecessary closure. In view of the failure to respond and the attempt to move a closure, which I am very grateful to the noble Lord for withdrawing, I wish to test the opinion of the House.

Ayes 73, Noes 272.

Division number 11 Business of the House - Motion on Standing Orders — Amendment to the Motion (2D)

Aye: 71 Members of the House of Lords

No: 269 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Lord True’s amendment to the Motion (2D) disagreed.