Amendment 4

European Union (Withdrawal) (No. 6) Bill - Committee – in the House of Lords at 11:00 am on 6th September 2019.

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Baroness Neville-Rolfe:

Moved by Baroness Neville-Rolfe

4: Clause 3, page 3, line 21, leave out subsection (4)

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Conservative

My Lords, the House rightly scrutinises Bills that come from the Commons, including a Private Member’s Bill such as this.

I apologise for my late arrival today. I moved a time-critical meeting to very early and was then afflicted by a transport delay. Circumstances can upset timing, as we all know from our debates on these Bills.

As my noble friend Lord Forsyth said, we have a duty in Parliament, and this House plays a key role, wherever we come from, to make clear that legislation works—otherwise, I fear that we will be held up to contempt by the people of this country. They look upon us already with increasing incredulity, and that is a big concern. I just hope that the noble Lord, Lord Kerr, is right on Amendment 2.

This is Committee, and my amendment is a probing amendment. I gave notice of my concern at Second Reading and the noble Lord, Lord Rooker, has only half answered my question.

I am concerned that subsections (1) to (3) tie the Government’s hands too tightly and put UK interests in jeopardy, whatever the motivation for the Bill—which was of course agreed in the other place.

I will be brief. I do not understand what subsection (4) does and how it interrelates with the rest of Clause 3, or indeed the rest of the Bill, or the sponsors’ game plan for our relations with the EU once the Bill becomes an Act. I am also keen, like others, to hear what is happening to the Kinnock amendment, which the Minister explained yesterday was defective. I beg to move.

Photo of Lord Goldsmith Lord Goldsmith Labour 11:15 am, 6th September 2019

This provision was put into the Cooper/Letwin Bill very much at the insistence of the Government at the time. I am not trying to make a point against the Government—the reason for it was to preserve the prerogative of the Government to accept an amendment. At that stage it was thought possible that the European Council would offer an extension at a Council meeting and there was the question of whether the Prime Minister would be able to accept it. After consideration of that, it was put into the Cooper/Letwin Bill that the Prime Minister should in fact be able to accept. This Bill, in Clause 3(4), says again that nothing will,

“prevent the Prime Minister from agreeing to an extension”— it does not allow him to refuse an extension—

“of the period specified … otherwise than in accordance with this section”.

So he does not have to go through the procedures if he wants to accept it. That is a way of preserving the prerogative, or privilege, of the Government to make agreements at an international level, but on that specific basis.

That is the reason for it, and it is appropriate to have it in this Bill too. The time for it to arise is limited and, if I understand correctly what Mr Johnson said about ditches, there will be no question of his agreeing to anything unless he is constrained by the Bill. So it is an interesting question and I think it is entirely academic. In those circumstances, I hope that answers the noble Baroness’s question and we can move to complete Committee.

Photo of Lord Wigley Lord Wigley Plaid Cymru

Will the noble and learned Lord explain, if the Prime Minister is faced in a Council meeting with the question of a change along those lines—if there were conditions placed upon it in the meeting—how will this subsection address that possibility?

Photo of Lord Goldsmith Lord Goldsmith Labour

Given what the Prime Minister has said, it is not going to happen. But the prerogative of the Prime Minister is retained under this provision—as it is in the other Bill.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

This simply keeps free from constraint the prerogative of the Prime Minister, notwithstanding this Bill. This Bill simply deals with requiring the Prime Minister to apply for an extension; if he manages to get one anyway, it does not matter. That is what is preserved. There is no question at that stage—if we accept the proposition of the noble Lord, Lord Kerr, about the nature of extensions—about conditions, except temporal conditions. Therefore, what the Prime Minister is allowed to do here is what, apart from this Bill, he would be able to do. This Bill is an additional requirement on him when it is activated.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct

I ask the Committee’s forbearance. Noble Lords on all sides are entirely agreed that the extension which the Bill demands that the Prime Minister seek is for one purpose only—look at the Kinnock amendment in the second part of Clause 1(4)—which is to try to get something like the May deal finally agreed. Heaven knows, I strongly support it and have long suggested that it should be agreed. However, having got such an extension, it would be quite unlawful for anybody to then say, “Ah, but we must use it instead to retract the Article 50 notice”—or seek a referendum or anything like that. Are all noble Lords happy and agreed on that?

Photo of Lord Goldsmith Lord Goldsmith Labour

No. I want to be clear that there is no certainly commitment coming from these Benches that that is what the Bill requires. If it is passed into law, it contains those words, but it does not constrain what the extension is used for.

Photo of Lord Rooker Lord Rooker Labour

My Lords, there is not much for me to say—although, as I alluded to in the previous debate, Clause 3 is precisely drafted and subsection (4) is there to give flexibility if other circumstances prevail. I had forgotten about where the Cooper/Letwin Bill—which I started off myself in April—came from. In other words, it came from the current Government on strike saying, “Please put it in your Bill”. We are happy to agree to the Government’s original plan to have it in the Bill. The noble Baroness said that this was a probing amendment. I would be very happy therefore if she would withdraw it.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Conservative

My Lords, I am grateful for the good legal advice from all sides about what this provision means. It is obviously a helpful provision, and I am happy to withdraw the amendment. I am concerned that this Act has no end date, so it is right to make sure that we understand the provisions and how they would work in the future. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Clause 3 agreed.

Clauses 4 and 5 agreed.

Schedule: Form of letter from the Prime Minister to the President of the European Council

Debate on whether the Schedule should be agreed.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

I would like to say something about that. This is the text of a letter that the Prime Minister is required to send under the Bill. If there had been time, I would have proposed that the letter included a reason. After all, it is to the European Union that the reason is to be expressed. As I understand it, the European Union says that, if it is asked to grant an extension, it wishes to have a reason. In the ordinary course of events it would be right to have the reason in the letter. Unfortunately, time prevents that happening. That would have been better, but I am sure the initiative will be sufficient for the reason to be communicated to the European Union, even though it is not stipulated in the letter. The terms of the Bill say that this is the letter, so there may be a risk in adding to it—but that may be a risk that should properly be taken.

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

If the noble and learned Lord is arguing that the letter has to have a reason in it, does that not mean it is conditional?

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

The condition is obvious: to give the reason why you are applying for an extension. As the noble Lord, Lord Kerr, said, the important point is about time, and the EU wants to know how this time is to be taken up. That seems to me a perfectly sensible idea.

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

The noble and learned Lord is far smarter at this than I am, but the noble Lord, Lord Kerr, argued that it was not possible for any conditions to be applied. So why is it necessary for us to give a reason?

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

It seems obvious to me that if you are asked to make an extension, you do not do it just for the sake of doing it; you have some reason for it. I do not think that the European Union, far as it may be from common sense in many respects, is so daft that it provides for an extension to be applied for with no reason on earth why it should be granted. It seems common sense to me that the reason is required and, of course, the Bill contains the reason but has just happened not to put it in the letter. I suspect that what happened may have been a copying of the previous Bill, the Cooper Bill, which did not have the reason in at all, as I pointed out at the time. This Bill is much better and includes the reason. Unfortunately, it is not so good that it has it in the letter as well but, as I say, I do not think that matters. At least, I do not think that ultimately it will matter.

As for my noble and learned friend’s question about the reason, it is quite important that the reason given in the Bill is the reason that has to be given in support of the application for the extension. I would certainly have suggested that it should go in the letter if there had been time, but I fully appreciate that there is not time and therefore we must leave it as it is.

Photo of Viscount Trenchard Viscount Trenchard Conservative

My Lords, beside what my noble and learned friend has just said about the letter and its deficiency in not including a reason, do your Lordships not think it would be much better if it also made clear what the parties are supposed to ratify? It simply says:

“If the parties are able to ratify before this date”,

but there is no object of the sentence, so there is no object to ratify. It is clear that it refers to a withdrawal agreement—I understand that—but it is very sloppy drafting and it could be argued that it refers to the ratification of something else.

Photo of Lord Rooker Lord Rooker Labour

To respond to the noble and learned Lord, Lord Mackay, we spoke outside the Chamber last night, because he raised this right at the end. He has a valid point, but the Bill as it stands is still sufficient, and we are under the Prorogation guillotine. If we were not, we would have some flexibility. It is the Prorogation guillotine that has removed the flexibility from the House to deal with this.

Photo of Baroness Morris of Bolton Baroness Morris of Bolton Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I apologise for forgetting the letter.

Schedule agreed.

House resumed.

Bill reported without amendment.

Photo of Baroness Chisholm of Owlpen Baroness Chisholm of Owlpen Baroness in Waiting (HM Household) (Whip)

My Lords, the House will now adjourn to allow for amendments to be tabled for Report. The Public Bill Office will be open to receive amendments for the next 30 minutes. The House will then resume as soon after that as possible and timings will be displayed on the annunciator.

Sitting suspended.