Amendment 2

European Union (Withdrawal) (No. 6) Bill - Committee – in the House of Lords at 10:15 am on 6th September 2019.

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Baroness Deech:

Moved by Baroness Deech

2: Clause 3, page 3, line 6, at end insert “unless the offer is anything other than an unconditional extension of time, in which case the procedure set out in subsections (2) and (3) applies.”

Photo of Baroness Deech Baroness Deech Crossbench

My Lords, this is a straightforward technical amendment to plug a gap which I noticed as soon as the Bill was published; indeed, I referred to it in my speech on it. As we know, the Bill mandates the Prime Minister to seek an extension to the withdrawal date provided for in Article 50 in the form of the letter in the Schedule. It goes beyond the earlier withdrawal Bill, known as the Cooper-Letwin Bill, of April. That Bill required the Prime Minister of the day to seek, but not necessarily to achieve, an agreement about extension. Mrs May could have picked up the phone, asked Monsieur Barnier for an extension and then said that on reflection she did not want it. Of course, that is not what happened.

That loophole is closed by the Bill in Clause 3(1) to (3). Subsection (1) says that, if the European Council agrees an extension to 31 January 2020, the Prime Minister “must, immediately” agree to the proposed extension, without qualification or consultation. But subsection (2) says that if “a date other than” 31 January is offered, the Prime Minister may not have to agree; subsection (3) says that if the Commons decided to disapprove the extension offer, the UK does not have to agree it.

I do not know why the two are treated differently. I note that the Commons is given this opportunity to consider the offer if an extension is granted that is not 31 January; it could be 30 January, or December next. But if the extension is 31 January, this is what might occur. Suppose the European Union agrees to an extension to 31 January but attaches a condition—for example, the holding of a second referendum, a payment of billions, settling issues to do with migration, or even a new Prime Minister. The Prime Minister has to accept it immediately, as set out in line 4 on page 3—no consultation, no Commons approval, unlike the provision in subsection (2). My amendment adds to the arrangement contemplated in subsection (1) the same requirement that the Commons should have two days to consider and accept or reject any condition attached. That must be right. I imagine the difference was an oversight, unless the proponents can explain the discrepancy.

I also note, but have not attempted to amend, a difficulty with the meaning of “two days” in subsection (2) and “two calendar days” in subsection (3). They are different—why? Imagine that the European Union offers an extension which is not to 31 January and that this is offered in early October or during some period when Parliament is not sitting. Is Parliament to be summoned to agree the question, or does “two days” mean two sitting days—indeed “Lords sitting days”, whatever they are—as set out in Clause 1? Might Parliament be prorogued to sidestep these time provisions? It is not clear. What is clear is that the Commons should have some power, for two days, to scrutinise and approve any offer of an extension to 31 January in exactly the same way as it is empowered so to do if the date were to be 1 February. That is the purpose of my amendment. I beg to move.

Photo of Viscount Hailsham Viscount Hailsham Conservative

I will make a point that I made in the previous debate in the hope that the Government will respond. I hope they will also respond to this amendment. Clause 3(1) is premised on the basis that the European Council decides to agree an extension. So long as the United Kingdom is a member of the European Union, in respect of a unanimous decision, it is at least possible in theory for the United Kingdom to oppose the extension, despite having applied for one. I seek an assurance from the Government that they will not seek to oppose an extension for which they have applied.

Photo of Lord Leigh of Hurley Lord Leigh of Hurley Conservative

My Lords, I will speak to Amendment 2 as my name is on it. Second Reading yesterday was a fascinating debate with much history covered, as is appropriate at Second Reading. There were some wide discussions of well-rehearsed arguments, often most eloquently expressed. Like many noble Lords here today I had the—I should not quite say—pleasure of listening to the debate on the business Motion the preceding day, which went on until 1.30 in the morning. I can only admire and respect those Members of this House who, having left at the same time as me, at 1.30 am, came back to the House the same morning with such powerful and well-written speeches on a Bill which itself arrived only a few hours earlier.

The speeches at Second Reading were political, of course, but in Committee we come to the business part. This is the time this House should come into its own, looking at the detail of the legislation and offering suggestions to the wording which might have been missed out in the other place. Although the Second Reading debate contained some excellent and thoughtful points, today is when we as a House might take a cold and calm look, away from the politics, and add some value to the Bill.

I recall that yesterday the noble Lord, Lord Hannay of Chiswick, specifically said that the Bill is “rather skilfully drafted”. It may be. I am sure it was done by those with vast experience in such matters, but it was prepared in a huge rush and I understand that one amendment from Stephen Kinnock was included by accident. As I have suggested, there was an almost indecent hurry between the Bill arriving here and Second Reading, so it is more than understandable that noble Lords did not have the full opportunity to reflect on the actual wording and meaning of the Bill line by line, as the noble Baroness, Lady Deech, has said.

There were of course exceptions; I would like to highlight the remarks of the noble and learned Lord, Lord Mackay of Clashfern—and not only his wonderful sentence which from here on in I will try to remember every time I am in a debate:

“I wanted to speak near the end so that I would hear the wisdom of others rather than my own”.—[Official Report, 5/9/19; col. 1212.]

I want to pick up on his observation that Clause 1 seems to identify the reason for the extension. I quote from the Bill:

“The Prime Minister must seek to obtain from the European Council an extension … in order to debate and pass a Bill to implement the agreement between the United Kingdom and the European Union under Article 50(2) of the Treaty on European Union, including provisions reflecting the outcome of inter-party talks”.

I should declare my interests. Although I voted leave, I publicly supported the agreement to which this refers, both in debates in this House and in print in a national newspaper. I am not sure in retrospect that I was right, but I did. Even if people like me were happy that the agreement to the extension was one that we still wanted, what happens if it is not the one we are offered by the EU because of the terms attached, as said by the noble Baroness, Lady Deech? The reason this amendment has been suggested is that it is entirely possible that the EU will only grant an extension which contains new conditions not in that agreement or not currently on the table. As I understand it, the Prime Minister would have to agree these new conditions, and this was not the intention of the Bill as it appears to be drafted.

Some of these new terms might be acceptable and attractive. I put on record to the House that I went to Brussels to meet Monsieur Barnier as part of the all-party parliamentary emergency task force led by Alberto Costa MP to try to persuade him to give citizens of the UK rights in the EU, and citizens in the EU rights in the UK, immediately. We had a friendly meeting for over an hour and he clearly understood the points made by the representatives of both Houses and indeed those of the citizens concerned, but he refused to budge an inch. The EU can dig in when it wants to, as indeed can we. For the record, he has agreed to meet us again in October. If he acquiesces to our requests then that will be extremely helpful, but there may be other requirements that the EU would make, particularly perhaps financial, that none of us would find acceptable. We have to reserve the right for Parliament to review those in the usual way. Accordingly it seems only fair and right that such changes should rather be approved by Parliament under this Bill, and that is the purpose of the Bill. Of course the Bill has to go through the House, but it is entirely appropriate that it carries amendments that your Lordships feel are appropriate.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Chair, Economic Affairs Committee, Chair, Finance Bill Sub-Committee 10:30 am, 6th September 2019

My Lords, I do not wish to detain the House. I support the amendment of the noble Baroness, Lady Deech. I think she has spotted a loophole in the Bill. I am very surprised at my noble friend Lord Hailsham asking for responses from the Government. This is a private Bill, a piece of private legislation. Like a lot of private Bills, it is—

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour

My Lords, I am surprised that the noble Lord has expressed surprise. Private Members’ Bills go through this House frequently, and not only are the government Front Bench present but they actually respond, normally, to every amendment. I am sure he would agree that, while he disagrees with it, this is one of the most important pieces of legislation that this House has considered in the last year. For the Government to refuse to answer any questions or make any response is an abuse of this House.

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

I do not want to take us back into the territory that we were in earlier this week, so the noble Lord will forgive me if I do not respond on the abuse of this House, given that the Bill itself has arisen from an abuse of the procedures in the other place.

I am genuinely concerned that we should pass a Bill whose implications people do not realise. I have had no contact with the noble Baroness, Lady Deech, and until I read the Bill and her amendment this morning, I had not realised that there was a real problem here. I was simply making the point that private Members’ legislation, without the benefit of the drafting and the backup of the government machine, is often defective. One of the things this House does is to point that out and to make those Bills sensible and possible to be carried forward.

I understand—and here perhaps I am agreeing with the noble Lord in his intervention—that where the Government have a particular interest in the Bill, it would be perfectly appropriate for Ministers to respond, but it is certainly not right to ask Ministers to comment on the drafting and nature of a Bill over which they have no responsibility.

Photo of Viscount Hailsham Viscount Hailsham Conservative

Would my noble friend accept that the question that my noble friend Lady McIntosh posed yesterday relates not to drafting but to policy? As a matter of policy, this House and the country are entitled to know that the Government will not seek to oppose an extension that they have sought. That is a straightforward question to which Parliament is entitled to a clear and straightforward answer.

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

And that would be a very good question to ask at Second or Third Reading, but we are in Committee here and we are discussing a particular amendment.

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

We are aware of that because my noble friend told us so not 10 minutes ago. What we are discussing here is the amendment of the noble Baroness, Lady Deech, who has made a perfectly good point about the drafting of the Bill, and I hope very much that the noble Lord in charge of this private Bill will be able to address it.

My second point, in support of the intervention made by the noble Lord, Lord Hunt, is that I understood that the amendment to the Bill made by Mr Kinnock in the other place was considered deficient and defective and was passed because the Government, by mistake, refused to put in Tellers, but I do not see an amendment on the Order Paper to correct that. I would like to hear from the Chief Whip what the position is on that at some stage during these proceedings.

As we are concerned at the moment with the amendment by the noble Baroness, Lady Deech, I very much hope that the noble Lord, Lord Rooker, will be able to explain why she is wrong. My experience is that she is a clever and informed barrister and is seldom wrong. If she is right, this is a real problem with the Bill.

Photo of Lord Stirrup Lord Stirrup Crossbench

My Lords, I rise in the hope that some EU constitutional law expert may assist me. My understanding was that until the end of the Article 50 period we remain a full member of the EU, with all the rights and obligations of such a member except in instances where we have voluntarily decided not to exercise such rights. Therefore, an extension to the Article 50 period would be an extension of our period as a full member of the EU. Any such extension that was offered with some sort of reduction in those rights would therefore seem to be not an extension of the Article 50 period but something else entirely. Have I misunderstood?

Photo of Lord Trevethin and Oaksey Lord Trevethin and Oaksey Crossbench

My Lords, I support the noble Baroness’s amendment. She is clearly right, and I hope that will be accepted around the House. The drafting of the Bill treats the European Council’s response to the request for an extension as if it might take one of two forms, but in fact the position is not binary; there are three possibilities.

The first is that the Council will unconditionally agree to the extension. In that case, pursuant to the Bill, the Prime Minister is bound to accept that. The second possibility, which is different, is that the Council might agree to the extension until the end of January, subject to conditions that may or may not be acceptable to the Government and the people. That is not an unconditional agreement; it is a counter-offer. As a matter of law, a counter-offer destroys the initial offer, which no longer remains open for acceptance, and is a new offer that can either be accepted or not. It is that possibility which has been overlooked by the Bill as presently drafted. That is why the noble Baroness’s amendment is plainly right.

The third possibility is that the Council will make a different type of counter-offer, which is to propose an extension that ends on a different date. That is a separate type of counter-offer, and that, as the Bill is presently drafted, triggers the provision in subsection (3). The noble Baroness’s point, as I understand it, is that the second type of counter-offer should also fall under the scope of subsection (3). She is plainly correct.

Photo of Viscount Trenchard Viscount Trenchard Conservative

My Lords, I add my support to the amendment in the name of the noble Baroness, Lady Deech, who has set out clearly why the Bill is plainly defective. I think it happens to be a terrible Bill, and all that it will achieve if passed is to kick the can further down the road, which has a huge cost in terms of prolonged uncertainty and putting off decisions to make new investments.

As my noble friend who has just spoken has pointed out, there are different possibilities as to how the EU will react and respond to a request for an extension. Noble Lords will remember what happened at the last request for extension: there was a very long debate in Council, with President Macron seeking to allow us a much shorter extension whereas some other member states wanted to offer a very much longer one, and 31 October was a kind of compromise date. There was also much talk in the Council as to what other conditions should be applied to any acceptance of a request for an extension. That is the reason for the noble Baroness’s amendment.

It is not just on that point that the Bill is defective. I would like to know what is a “Lords sitting day”. There are two instances in the Bill of something called a “Lords sitting day”, which I have never heard defined before, as well as “calendar days” and “days”. So, the Bill is a bit poorly drafted. I have always understood that the role of your Lordships’ House is to scrutinise and improve deficient legislation.

I have another question; I think it is for the noble Lord, Lord Rooker, because he introduced this Bill. Clause 3(3) refers to what happens if the House of Commons has decided not to pass a Motion between two calendar days. It does not say what happens if the House has not decided to pass, or not decided not to pass, a Motion within two calendar days. Also, should “decision” have an upper-case d? If it is intended to signify a formal decision of the Council, it should have an upper-case d. If the decision is made on a Friday, or a Thursday when the other place is not sitting on the two subsequent calendar days, it is quite likely that the other place will not have had an opportunity to decide whether or not to pass such a Motion.

Quite apart from the very harmful effect of this Bill on our country and the current negotiations with the European Union, I think the least your Lordships’ House could do would be to support the noble Baroness in doing something to mitigate its harmful effect by making it a little clearer.

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

My Lords, I rather echo the puzzlement of the noble and gallant Lord, Lord Stirrup. I would like to ask the noble Baroness, Lady Deech, or other sponsors of Amendment 2, to explain what part of Article 50 gives the EU 27 any power to impose conditions. As I read it, paragraph 3 of Article 50 just says:

“The Treaties shall cease to apply to the State”— the UK in this case—at the end of the two-year period, or the end of the extended period. Could the noble Baroness explain what is the basis in EU law for believing that the EU 27 have the power to impose any conditions?

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

The noble Baroness is vastly experienced; having been in the European Parliament, she understands these things and I cannot pretend to do so. When the issue of the extension beyond 31 March was discussed, I recall that President Macron and others were intent on imposing all kinds of conditions. Is she saying that, when he said that, he was not aware of the nature of the Article 50 process, or of European law?

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

I obviously have no idea what went on in the private office of President Macron. However, as noble Lords know, there are loads of lawyers in Brussels; the legal services of the three institutions are very distinguished. I imagine that there could have been some lively discussion between the politicians and the lawyers as to what was possible. I acknowledge that I am not aware of exactly what the content of those discussions could have been. I make no pretence to be an EU lawyer, but I remain untutored—just on a reading of Article 50—on what power would allow the EU 27 to impose those conditions. Since the noble Baroness, Lady Deech, moved the amendment—I see that the noble Baroness, Lady Falkner, is keen to come in, perhaps because this is also relevant to Amendment 3—I ask where that power comes from.

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Liberal Democrat

My Lords, I might be able to assist the noble and gallant Lord, Lord Stirrup, and the noble Baroness, Lady Ludford, because this is very much the subject of my amendment. If the Committee is willing to hear from me now, I will not need to move it later.

On 11 April 2019, when responding to Mrs May’s request for an extension of Article 50, the European Council’s concluding statement took the form of a decision. I returned from Brussels just yesterday; I would have spoken in the debate yesterday, but I was unable to, as I missed the beginning. In Brussels yesterday, I was told that the decision of the European Council of 11 April 2019 stands as law. That European Council took note of the duty of sincere co-operation. That duty exists in all treaties and the United Kingdom has been bound by it. In particular, it referred to the conduct of the UK as applied to its relations with the EU as a withdrawing member state. Moreover, in that decision, it added a further caveat, saying:

“To this effect, the United Kingdom shall facilitate the achievement of the Union’s tasks and shall refrain from any measure which could jeopardise the attainment of the Union’s objectives, in particular when participating in the decision-making processes of the Union”.

What provoked me to try to intervene yesterday was that this is a clear curtailment of the decision-making process of the Union. I think the noble Lord, Lord Kerr, said, as the noble Baroness, Lady Ludford, just asserted, that the United Kingdom retains all rights. It does not, because that 11 April European Council decision, in granting the extension, imposed a new condition to say that the attainment of the Europeans’ objectives in particular was not defined in law. When participating, the United Kingdom has to exercise restraint and refrain—the word is “refrain”—from jeopardising the attainment of the Union’s objectives in its decision-making process. I would be extremely grateful if the noble Lord, Lord Rooker, would address this when he responds on this amendment; I have indicated to the Committee that I will not move my amendment if he gives me this response.

In Brussels, I heard that if an extension was offered, it was liable to be offered for long enough for the UK either to change its Government or to have a new referendum, giving us time to do that and then come back and renegotiate, or do whatever the Labour Party wishes to do. What I heard in Brussels yesterday was that the United Kingdom was likely to get a very long extension. Let us say that the extension goes up to December 2020. The European Parliament has not engaged with any of this House’s European Union Select Committees since the triggering of Article 50 in March 2017, there is no access to the Commission, which is a new Commission with a very activist work programme, and we are not allowed to jeopardise the attainment of the Union’s objectives, which we have some idea about but do not know because the new Commission is not appointed. Given that, could the noble Lord, Lord Rooker, explain whether that would imperil the United Kingdom’s interests for a period which, in reality, started from when the Parliament and its committees stopped engaging with us, or—taking the minimalist view of this—from 29 March 2019, when the United Kingdom was due to withdraw and this condition started to apply? This is a new condition and it applies from 11 April 2019. The United Kingdom could potentially be in a position where its interests would not be adequately safeguarded or represented for 18 months or so.

Photo of Lord Cormack Lord Cormack Conservative 10:45 am, 6th September 2019

My Lords, the problem we have today is that we are constrained on time. That is entirely the fault of the Government for deciding that Prorogation should take place next week. Therefore, we are in something of a constraint. We owe a great deal to my noble friend the Chief Whip, the noble Baroness the Leader of the Opposition and those who reached a sensible compromise solution in the early hours of Thursday morning. We are grateful to them. They say, and I accept, that we need to conclude proceedings on the Bill today. This is because of the Prorogation guillotine, which was announced by the Prime Minister two weeks after he decided to do it—we know that from the depositions in the Scottish court.

I regret that there is no Minister to reply to these debates. It is frankly an insult to the House and I deeply regret it. But when he was here yesterday my noble friend Lord Callanan made it quite plain that he knew that our European friends and neighbours would accept two things. One was the revocation of Article 50. Clearly that will not happen and I do not want it to happen, but he also made it plain that the deal that had been on the table—Prime Minister May’s deal—was still possible. He also made the point that he had enthusiastically promoted it, as indeed he had. All members—I correct myself—most members of Mrs May’s Government promoted it valiantly.

I believe that we now have the opportunity under the Bill, imperfectly drafted as I acknowledge it is, with the Kinnock amendment, to bring the Theresa May deal back and enable this Parliament to make a decision with a fourth vote on it. I am bound to say that I believe it will be a service to the country to do that. As I said yesterday, it is only the beginning of the beginning, because there are many more rounds of negotiations to take place, but it would at least mean that we had something that had been supported by the present Prime Minister and Mr Rees-Mogg in the third vote, so clearly they believed it was the right thing to do at that time. I wish we could now get on and do it.

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

I entirely agree with my noble friend on the subject of getting on with discussing these amendments and their nature, but is he seriously arguing that if a problem that affects our national interest arises from the drafting of the Bill, we should just ignore it and allow it to go forward? It is perfectly possible for the sponsors of the Bill to agree the amendment, for it to go to the House of Commons, come back and for it all to be covered before Prorogation, particularly since both Front Benches have agreed to take whatever measures are necessary to try to expedite it. It is perfectly possible. Surely we need to address the point that the noble Baroness, Lady Deech, and other Members of the House have identified. All this repetition of all the arguments we have already had for the past three years is, frankly, a waste of time. We are at the final point now and we need to put the Bill on the statute book, but in a way that makes sense. We cannot as a House say that we are going to pass imperfect legislation because the Government were responsible for Prorogation.

Photo of Lord Cormack Lord Cormack Conservative

That was a fairly lengthy intervention, but the fact of the matter is that we have been placed in a straitjacket by the Government’s decision on Prorogation. We have an agreement between the two Front Benches here. That is why we should move forward and get the Bill on to the statute book as quickly as possible.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

I had not intended to follow my noble and gallant friend Lord Stirrup’s remarks because he included in them an invitation to some EU constitutional experts. I absolutely do not aspire to the status of an EU constitutional expert, but what he said was absolutely correct. There are two possible statuses: one is the that of a member of the European Union, the other that of a former member. The noble Baroness, Lady Ludford, is absolutely right that there is no provision in Article 50 for qualitative conditions on an extension. Temporal conditions—the length of the extension—are possible. That is what we are talking about.

The point raised by the noble Baroness, Lady Falkner of Margravine, about the European Council decision refers to the treaty rights and responsibilities of a member, one of which is the duty of loyal co-operation. That is set out in the treaty. It would not be possible to withdraw treaty rights by European Council decision. The only way to change treaty rights is by amending the treaty, which requires unanimity, and while we are members we would presumably not vote to limit our treaty rights.

The language in the decision referred to by the noble Baroness relates to the contingency, which sadly has now arisen, that the United Kingdom is not present and voting in all committees and regulatory organisations of the European Union. The United Kingdom has voluntarily decided not to exercise some of its treaty rights. Some of these organisations operate by unanimity. If there is an empty chair there and we are a full member with full voting rights that we have not exercised, decision-taking machinery among the European Union—of which we are a member—being exercised by only the 27 could grind to a halt. That is why that language is in the European Council decision. That is why our Government, though in my view quite wrongly, has decided to operate an empty-chair policy in certain parts of the European Union organisation. They have agreed that the Finnish presidency shall exercise our voting rights as though we were there so that unanimity, where it is necessary for a decision to keep the business going, can still be reached. That is the purpose of the language of the European Council’s decision.

The key point is that paragraph 3 of Article 50 is about only temporal extensions. I say to the noble Baroness, Lady Deech, for whom I have huge admiration—of course, she is a lawyer and I am not—that I believe it is not possible to set conditions to the extension of time under Article 50. I therefore say to her and to the noble Baroness, Lady Falkner of Margravine, that both amendments are unnecessary and should not be pressed.

Photo of Lord Lilley Lord Lilley Conservative

Could the noble Lord clarify whether it would be possible for the European Council to set the condition that the British Parliament, or the British Government, agree to hold a referendum? I agree that it would not be possible for it to set conditions that limited our powers within the period of membership, but surely it is possible for it to do that.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

That is absolutely out of the question. The treaty language, including in Article 50, is absolutely clear that it is for the member state to proceed under its own constitutional procedures. That is specifically spelled out, including in Article 50. The idea that the European Union would interfere in our domestic decision-taking constitutional arrangements is out of the question.

Photo of Lord Lisvane Lord Lisvane Crossbench

My Lords, on a slightly more pedantic level, I will try to assist the noble Viscount, Lord Trenchard, with his earlier question. I think he thought that Lords sitting days had not been statutorily defined. They are actually defined in Section 13(16)—

Noble Lords:

Oh!

Photo of Lord Lisvane Lord Lisvane Crossbench

I promised pedantry. They are defined in Section 13(16) of the European Union (Withdrawal) Act 2018.

Photo of Viscount Trenchard Viscount Trenchard Conservative

I thank the noble Lord for his clarification, but that does not affect my basic premise that the Bill nevertheless refers to “Lords sitting days”, “days” and “calendar days” in a confusing manner. That also needs to be clarified.

Photo of Lord Goldsmith Lord Goldsmith Labour

My Lords, I said yesterday what a privilege it was to be in this House, but having heard the noble and gallant Lord, Lord Stirrup, the noble Lord, Lord Lisvane, and the noble Lord, Lord Cormack, who is not on the Cross Benches, they have answered the points that I wanted to make on this amendment. The starting point for the context is, obviously, as the noble Lord, Lord Cormack, said, the limitation on time for this House and the other House imposed by Prorogation. We are in circumstances where we might think theoretically about asking the Commons to think again, but there will not be time. There will not be time for ping-pong because, if Prorogation hits, the Bill falls. I believe that that is what this House wanted to avoid, by pushing through and accepting Second Reading yesterday.

Let me come—

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench 11:00 am, 6th September 2019

I thank the noble and learned Lord very much for allowing me to intervene. Has not the noble Lord, Lord Kerr, given us the answer? Does it not just simplify entirely the amendment before us?

Photo of Lord Goldsmith Lord Goldsmith Labour

The noble and learned Baroness is absolutely right about that, which is why I particularly complimented and thanked him for his intervention and observation. The conditions referred to by the noble Baroness, Lady Deech—such as the monetary issue, us being required to have a new Prime Minister, and a referendum—are not, in my view, things that the European Union could impose on this country. We have said this before and I say it again: although the noble Lord, Lord Kerr, is not a lawyer, he drafted Article 50 and so knows something about what its conditions contain.

Photo of Lord Trevethin and Oaksey Lord Trevethin and Oaksey Crossbench

Perhaps I may assist the House by addressing this point, which arises out of the observations of the noble Lord, Lord Kerr. He indeed drafted Article 50. It is drafted in terms that do not expressly confer a right to withdraw an Article 50 notification. However, according to his views, it has now been held that such an entitlement impliedly exists. It is not difficult to argue for an implication that it is legitimate for the European Council to seek to impose conditions to our request for yet another extension, which is a request for an indulgence. Can the noble and learned Lord assist on that?

Photo of Lord Goldsmith Lord Goldsmith Labour

I beg to differ from the noble Lord. The Committee will also bear in mind that anything the European Council does, or seeks to do, is itself subject to the requirements of the treaties. If it does something which is thought to be outside the treaties, that is justiciable in the courts of this country—we now know very well that they can do that—but also in Brussels and Luxembourg. I do not see a problem with that. I do not see the difficulty that is raised. The Bill is clear that, if we get the answer, “You can have this extension to this date”, the Prime Minister has to act. If the date is different, that is a different consideration, and will have to be considered by the Commons. However, if we were to make an amendment now to deal with something that we are being advised the European Council could not do, we would be defeating the Bill because we would be sending it back to the Commons, which would not be sitting to receive that amendment and deal with it. I therefore respectfully invite the noble Baroness to withdraw her amendment. If she does not do so, certainly we will oppose it.

Photo of Lord Lilley Lord Lilley Conservative

My Lords, I am not a lawyer but, from what I have heard, I believe that this amendment carries considerable weight. I am not persuaded, even by the noble Lord, Lord Kerr, that conditions could not in practice be imposed. We know that that has been talked about frequently by the leaders of our partners in Europe and by European Commissioners. Are noble Lords able to tell me what would happen if, when we asked for an extension, those in the EU asked what it was for? They have repeatedly asked us that. What if we said that we did not know, and they then told us that we could therefore not have an extension? Or what if we told them that we were going to have a referendum, and they then said that we could have an extension? Is the noble Lord, Lord Kerr, saying that that process of discussion and dialogue could not happen? It seems to be quite compatible with paragraph 3 of Article 50, which says:

“The Treaties shall cease to apply to the State in question from the date of entry into force of the … agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned”— implying that there may be a range of things to be agreed—

“unanimously decides to extend this period”.

What I originally wanted to ask was this. To my mind, this amendment raises a rather more fundamental question about Clause 3(1), which begins:

“If the European Council decides to agree an extension”.

It can decide only by unanimity. Once it has decided, its decision is European law and binding upon us. There is therefore no possibility of coming back to the House of Commons and overruling that decision. We were told that in March, when the Prime Minister went to the Council and agreed an extension. When she came back, people in the House of Commons wanted to have a vote on it and were told, “You can have a vote if you like but it is law anyway”. The assurances we have been given that Parliament itself could overrule an agreement, or not agree to a decision made by the Council, if we did not like its length or any terms that might be implicit in it are, as far as I understand it, simply not true. Now, I am not a lawyer —those were my opening remarks—but if a lawyer is prepared to stand up and say that a decision of the European Council is not binding in European law, and therefore not binding on us before we have left, my objection falls. If not, we have found a very major weakness in the Bill.

Photo of Lord Rooker Lord Rooker Labour

My Lords, it would appear that everybody in the House is toing and froing to Brussels. I have to make it clear that the last time I was in Brussels, when I was still a Northern Ireland Minister, on the day that the beef ban was lifted I was serving Northern Ireland beef to trade delegations to rebuild that industry. That was my last time in Brussels, so I am not party to any of the discussions.

The point about the amendment, which has been sufficiently answered in a much better way than I could do, is that it is built on an assumption about the unconditional extension of time. It would actually confuse Clause 3. Clause 3 is precise in some ways but subsection (4) gives it flexibility. It is interesting that an amendment has been tabled by the same group of people to knock out subsection (4), because that provision gives the Prime Minister the capacity to agree a different date. That flexibility and precision are built in to achieve the objectives because, at the moment, we are in an unknown area. To be honest, to add the amendment would be confusing.

I am not going to get into disputes with lawyers and drafters of legislation, but the fact of the matter is that I would take the explanation of the noble Lords, Lord Kerr and Lord Cormack, over and above legalistic nitpicking of what is quite a precise clause. In fact, when you look at the Bill, this is probably its best drafted clause.

Photo of Lord Lilley Lord Lilley Conservative

Did the noble Lord notice that the noble Lord, Lord Kerr, did not come back to deny that the sort of discussions I suggested could take place, which would implicitly involve conditions?

Photo of Lord Rooker Lord Rooker Labour

I did note it but I have no comment to make on it.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

I do not think it is for me to comment on discussions in the European Council. Like the noble Baroness, Lady Ludford, I do not know what happened when President Macron argued for a shorter extension at the last European Council. It is perfectly possible that dialogue with the British Prime Minister might take place, but what is not possible is that there could be a conditional extension. The extension would be unconditional because that is what the treaty says, or rather the treaty contains no powers for imposing a conditional extension.

Photo of Lord Rooker Lord Rooker Labour

That being the entire point, I invite the noble Baroness to withdraw her amendment.

Photo of Baroness Deech Baroness Deech Crossbench

My Lords, much more heavy weather has been made of this than I intended. I have a couple of opening comments: it is a pleasure to see the noble Baroness, Lady Falkner, over here, and I say to the noble Lord, Lord Kerr, that those who draft law are not thereafter charged with interpreting it. Once they have launched their draft, it is over to others to interpret it. I do not claim by any means to be a European lawyer—far from it—but my point is very simple: if an extension is granted to 30 January, the Commons gets two days to consider it. If an extension is granted to 31 January, it gets no time at all. I have still heard no reason or sense for why that should be so, and I remain convinced that this was some drafting oversight.

No one has clarified either whether the “two days” are sitting days or calendar days. What if an offer comes at the weekend, during the Christmas Recess or some time when we are not here? Since the lawyers, both the noble and learned Lords in this House and those who are clearly just as learned but are mere QCs, have different opinions about this, it is quite possible that something that is a bit tricky may come our way at a time when we are not sitting or when the Act provides no two-day pause for the Commons. So either the Commons should have two days to consider anything or it should not have two days at all. I have heard no logical answer to that.

I sense that it is the will of the House that I withdraw the amendment. However, before Report, I expect to hear some sense from someone. I do not know who gave the draftsmen their orders. I have not yet heard a sensible reason why an extension to 30 January gets two days’ consideration but an extension to 31 January does not.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

Perhaps I may try to give an explanation. It is because Clause 3(1) specifically states,

“at 11.00pm on 31 January 2020”.

By definition, that would have been passed by the House of Commons, as indeed it did on Wednesday this week. Therefore, it does not really need two days to agree something that it has already agreed to and put in statute.

Photo of Baroness Deech Baroness Deech Crossbench

I understand that point, but, given that there has been enough disagreement to worry me about what the European Union might say—others who know much more than me have expressed different opinions—and we are left with this “two days” definition and nobody knows what it means, I think that there is a real legal problem. I do not know who drafted it; I do not know who gave the orders; we have not really heard a logical answer. I beg leave to withdraw the amendment, but I expect someone to give a proper explanation at some stage during the discussion, because we are in a bit of a legal pickle over that provision.

Some Lords objected to the request for leave to withdraw the amendment, so it was not granted.

The Deputy Chairman of Committees decided on a show of voices that Amendment 2 was disagreed.

Amendment 3 not moved.