Amendment 1

European Union (Withdrawal) (No. 6) Bill - Report – in the House of Lords at 1:06 pm on 6th September 2019.

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Lord Forsyth of Drumlean:

Moved by Lord Forsyth of Drumlean

1: Clause 1, page 2, line 14, leave out from “2020” to end of line 20

Noble Lords:

Oh!

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

I mean that seriously. However, it may be of assistance to your Lordships if I explain why I have tabled this amendment. It arises from an exchange we had in Committee when my noble and learned friend Lord Mackay of Clashfern queried why the letter the Prime Minister is required to send under the Schedule to this Bill did not include a reason. We had an exchange about how, if you had to have a reason, surely that would be a condition. He said that the reason is in the Bill.

The reason is indeed in the Bill; it is the bit I want to take out—page 2, line 14, from “2020” to the end of line 20. I am not sure how many of your Lordships have studied this and thought about its implications. It is written in language which makes it less easy to understand, but it is essentially saying that the letter has to be sent,

“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 as announced by the Prime Minister on 21 May 2019, and in particular the need for the United Kingdom to secure changes to the political declaration to reflect the outcome of those inter-party talks”.

It means we are asking the Prime Minister to send a letter saying not only that he wants to debate the May deal and the subsequent matters that were agreed between the parties but that he intends to pass a Bill, when he has made it absolutely clear that he is determined not to do that. More particularly, for those Members who have argued about the supremacy of the House of Commons, it is a deal which has been rejected by the House of Commons on three separate occasions.

Here we have a piece of legislation which, by agreement between the Front Benches, is being given safe passage—I certainly do not support the Bill but I do not wish to delay it, if that is what the Government want—but what on earth is going on with the Government? Why have they not tabled an amendment to take this out? It does not reflect their declared policy, nor the view that the House of Commons has taken on three separate occasions.

I therefore went to have a look at the Hansard of the House of Commons to find out how this had got into the Bill. It has done so by accident. The Labour Party’s position in the other place was to abstain on this matter. Its author—showing that some families stick together—was a certain Stephen Kinnock.

Photo of Lord Cormack Lord Cormack Conservative

He is a very good chap.

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

My noble friend Lord Cormack says that he is a very good chap. I know we are a broad church, but—.

Stephen Kinnock is quoted as saying on this matter:

“I understand that our position at the present time would be to abstain, but I am not 100% sure of that”.—[Official Report, Commons, 4/9/19; col. 262.]

My noble and learned friend Lord Mackay corrected me, quite rightly, when in Committee I said that the Government had failed to put in tellers for the Division—although I am confused because in my day, only the Government proposed Business Motions and matters of that kind. However, it was of course the promoters of the Bill who failed to provide tellers for the Division, which is how this has ended up in the Bill.

We therefore have a provision in that Clause of the Bill which the Labour Party did not want—it was going to abstain on it—and the Government cannot possibly have wanted. I am as good as my word—I said that I would not seek to delay the implementation of this legislation, if that is what has been agreed between the parties—but that strikes me as extraordinary. I did not table an amendment in Committee, which in the normal way I would have done, because I expected the Government to put down an amendment to deal with this, and they have not done so. I say to my noble friend that we would be very grateful indeed if he could explain why the Government are leaving in a Bill which they are proposing to support, a provision which requires the Prime Minister to write a letter for the purpose of giving an undertaking to debate and pass a Bill to implement the so-called May compromise agreement, including the discussions that took place between the previous Prime Minister and the Labour Party, which include giving assurances about regulatory requirements and the rest. It seems extraordinary, and that is the reason behind the amendment, which I beg to move.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, I very much hope that the House will not be seduced by the silver tongue of my noble friend Lord Mackay of Drumlean.

Noble Lords:

Oh!

Photo of Lord Cormack Lord Cormack Conservative

I apologise profusely to my noble and learned friend. Of course, nobody could possibly confuse an erudite lawyer with—

Noble Lords:

Stop digging!

Photo of Lord Cormack Lord Cormack Conservative

My Lords, it is important that the Bill goes through as it came from the House of Commons, and I say that for one reason above all others. I believe that this Kinnock amendment gives an opportunity to bring to a seemly end the wrangling and the disputes that have taken place.

There are many in all parts of your Lordships’ House who would have supported the Theresa May deal. That was made plain in debate after debate. We never had the opportunity specifically to divide on it, but it was quite clear that a large number of influential Cross-Benchers, and of my friends on the other side of the House and this, would have accepted it. I believe that would have been a sensible decision.

We must remind ourselves that when it came up for the third time of asking in the other House, Mr Boris Johnson, not then the Prime Minister, voted for it, Mr Rees-Mogg voted for it and the Government in their entirety voted for it. I know that there has been a great clear-out of the Government, but it is entirely reasonable that, having had a chance to reflect after a change of leader and seeing the stark reality of falling off the cliff of no deal, we should have a chance to revisit it. That is not least because my noble friend the Minister—I am delighted that he is on the Front Bench at the moment—has repeatedly said this very week how hard he had fought to get the May deal through. Indeed he did, and I gave him constant support throughout those debates.

Therefore, this is no backtracking. It is a recognition of what we can do to bring this long, three-year saga to a decent end. Then we can move forward to a general election in due time, having agreed with our friends and allies in the European Union the terms of exit. I remind noble Lords in all parts of the House that, to use words I have used before, this is only the beginning of the beginning: there are many long months and years of negotiating ahead, but it would be far better to negotiate from a base of amity and accord than from a base of discord. That could and indeed would be the case if we came out without a deal, because acrimony would be the prevailing emotion, and that is not a good thing.

I hope that my noble friend Lord Forsyth will not have succeeded on this occasion in seducing your Lordships with his silver tongue, and I oppose the amendment.

Photo of Lord Brooke of Alverthorpe Lord Brooke of Alverthorpe Labour 1:15 pm, 6th September 2019

My Lords, yesterday I raised the issue of the opportunity that rests within the political declaration for a solution to the problem which the country faces. The offer from the Commission is still open for the Government of the day to hold discussions and negotiations to find a way through on the backstop, linked to the political declaration. I asked the Minister twice yesterday why the Government have not, as yet, taken up the opportunity to embark on a negotiation along those lines to try to find a way through, which in turn would link to the deal negotiated by Mrs May.

If, as the noble Lord, Lord Forsyth, wishes—he has spotted this—we take out this provision, that prevents that opportunity to take this forward. Those of us who are looking for a way through, who have been prepared to shift our ground to a degree to find an accommodation to try to get some healing of the divisions which exist, should vigorously oppose what he presents to us. We should ask the Minister and the Government to pick up the opportunity offered by the Commission to negotiate on the political declaration and find a way forward. Then, in turn, we should get the Bill through the House very quickly today as the basis for moving forward.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

My Lords, I support my noble friend Lord Forsyth. I am rather surprised at my noble friend Lord Cormack, because he has always been a great champion of the revising powers of this Chamber. When a Bill comes before us containing a clause that is clearly a complete mistake and which the proposers did not intend to be there, surely it is our job to send it back to the Commons, which has already organised to accept Lords amendments on Monday. The Commons can then accept my noble friend Lord Forsyth’s amendment, which will go through anyway. It will not delay the Bill or make the slightest difference; in fact, it will make the Bill better than it is already. It is quite extraordinary that, when a mistake like this has been made and is widely acknowledged by everybody as such—it happened because the Bill’s proposers did not put in tellers; that seems a bit amateur but there we are, that is what they did—we are not in a position to put the Bill right and concur with the wishes of the other place, which will pass the amendment so that nothing will change in terms of timing or anything else. I cannot understand why my noble friend Lord Forsyth’s amendment is being resisted in any way.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, I heard the noble Lord say that this was a mistake. I am curious as to how he knows that. Does he have some inside knowledge—not just gossip?

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

I have the inside knowledge that the Labour Party wanted to abstain on this and that there was no way that the amendment would have been carried had tellers been put through by the Bill’s proposers.

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

My Lords, I was not intending to intervene—

Noble Lords:

Oh!

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

I seem to have become very swiftly a Member that this House does not want to hear from. That has been confirmed because this House does not care for certain inconvenient truths—or Trues. In my 22 years of service in this House, first in the usual channels and then having the honour of being a Member of the House, I have never made it my practice to comment publicly on the usual channels’ discussions. I do not do so now. The only thing I will say, which should be placed on record, is that at a certain significant hour in the small hours of Thursday morning, it was my understanding that this amendment would, by agreement, be removed. That was clearly a misunderstanding.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, I would have preferred not to see the Kinnock amendment in the Bill, whether it was a mistake or not. As the noble Lord, Lord Kerr, pointed out in Committee, it is not open to the European Union to impose conditions on an extension, and this amendment seeks to remove the provision that suggests that there could be conditions. It is certainly not possible for the European Union to impose conditions on the conduct of the British Government during any extension. The words of the Kinnock amendment that this amendment seeks to remove are so woolly as to be meaningless. They refer to the outcome of cross-party talks, which was uncertain; indeed, the talks were abandoned. Along with the Bill’s promoters in the House of Commons and here, I believe that the words of the Kinnock amendment would have no legal effect.

To the noble Lords, Lord Cormack and Lord Brooke of Alverthorpe, I say this: there is nothing whatever in the Bill as it stands to prevent the negotiation of a deal by the Government, if it were negotiated and passed through the House of Commons. The central point is that we have to live with the Kinnock amendment. We need to vote against the amendment in the name of the noble Lord, Lord Forsyth, because we are under the time constraints of Prorogation. Whatever the noble Lord, Lord Hamilton, says about the opportunity that may be there on Monday morning, we cannot foretell what may happen in the Commons on Monday morning if we send back amendments. I therefore urge the House to reject the amendment, which will not affect the central thrust of the Bill in any way.

Photo of Lord Jones of Birmingham Lord Jones of Birmingham Crossbench

My Lords, could I just—

Noble Lords:

No!

Photo of Lord Jones of Birmingham Lord Jones of Birmingham Crossbench

So tolerant of democracy.

I support the amendment suggested by the noble Lord, Lord Forsyth, for one reason only: there is not a small business woman or small business man in this land who has not had it up to here with this place and the other place. They just want everybody to get on with it and give the businesses of the land—which generate the profit, pay the tax and build the schools and hospitals—the chance to get on and make money, employ people and pay tax. They hold us all in very high disregard at the moment—all of us. The political class has let down this country and business, and that is not a partisan point. We should all, of every party in both places, look into our souls about what we have done to this country in so many ways. If these people, who hold us in such high disregard, thought we spent a Friday afternoon accepting the fact that we just knocked through on the nod something factually inaccurate, they would think we were even worse than they do right now.

I thought the point made by the noble Lord, Lord Brooke, was excellent. The chance of coming together and healing—he used that word, and I thought it was excellent—has a lot of merit in it, but we surely cannot knowingly vote for something that is factually wrong. On that basis I support the amendment—I do not think it would hold up anything on Monday—but after this debacle is over we ought to go from this place and just start trying to respect the optics: the businesses, the businesswomen and businessmen, the good people of this country, have had enough of us. If we do not start communicating with them as to why we are on their side, God help us.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

This amendment proposing to delete what is in the Bill strikes me as rather unnecessary, apart from the fact that we have difficulty with time. In my view, the amendment proposed by Mr Stephen Kinnock—a distinguished member of a distinguished family—was perfectly in order. The fact that, though the procedures of the House of Commons, it went into the Bill and is in the Bill we read for a second time, passed in Committee and are now considering on Report strikes me as perfectly in order. It makes the important distinction, which I tried to make yesterday, between the withdrawal agreement and the political declaration.

It has always seemed to me that the Irish backstop has the character of a future relationship. What is objected to is the fact that it is said to be permanent and so on. That is part of the future relationship, and therefore I have always felt that the backstop itself is not an objection to the withdrawal agreement as such. There may be other objections but, so far as the backstop is concerned, the aspect of it to which objection has been taken is as part of the future relationship. I would therefore welcome the idea of the House of Commons having a discussion separating out these two, which the Kinnock amendment does with complete accuracy. I do not for a minute believe that it does not make sense; it is perfectly readable and understandable, even for lawyers. In my view, therefore, this should stay in.

My noble friend says he expected the Government to object to it. The Government are not for the whole of this Bill. The whole thing is a Private Member’s Bill by a group that was not part of the Government as such. It may have included Members who were previously in the Government, but at any rate it is not a government Bill. The Government therefore do not care for it at all, so I do not know why they should have to propose an amendment to part of it. It is perfectly right that they had not done so. I understand they have been advised that it is meaningless. I do not agree with that, and I do not think anybody who reads it will think it is meaningless; it is perfectly clear what is wanted. It is the basis on which an extension is asked for.

According to the formulation of the noble Lord, Lord Kerr, no conditions are attached. However, if you apply for an extension the European Union will require a reason—which seems to be common sense—and, if you give a reason, good faith suggests that that is the reason, and therefore it promotes the likelihood that something may suddenly emerge which distinguishes between the political formulation and the withdrawal agreement, which is the vital thing to get through in time.

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union) 1:30 pm, 6th September 2019

Perhaps it would be helpful for the Committee if I said a few words about the amendment. Both my noble friends Lord Forsyth and Lord True are essentially correct, except in one important detail. I should say to my noble friend Lord True that even if the rest of the Committee does not want to hear from him, I do, because he speaks a lot of good sense on these issues.

It is true that initially, during the fast-moving events at a late hour on Wednesday evening, it was our intention to ask the House to remove this amendment. However, since then we have looked at it further. My noble friend Lord Forsyth said that the Government do not support this Bill and do not favour it. We think it is flawed and that this Kinnock amendment tries, but does not succeed, to make it even worse. The amendment is confusingly drafted, is contradictory to the aims of the rest of the Bill and its deficiencies are such that its effect is rendered pointless.

I always hesitate to disagree with my noble and learned friend Lord Mackay but my strong advice is that this amendment is legally inoperable. It appears contradictory with other parts of the Bill because it requires an extension to pass legislation to implement a deal, when, under this Bill, the extension is being sought only because no deal has been agreed.

For all those reasons, as I have said, we think it is inoperable and largely pointless. I am happy to say that it was our original intention to take it out—we had discussions to that effect and so my noble friend Lord True is correct, as always—but since then we have looked at the matter further.

Photo of Lord Goldsmith Lord Goldsmith Labour

My Lords, I am grateful to the Minister for helping the Committee at this stage by explaining the Government’s position. We do not support the amendment. In short, given that the Minister has said the Government’s view is that the Kinnock amendment is legally inoperable, it does no harm to keep it in the Bill. I do not know why noble Lords are laughing because the critical point, which was made by the noble Lord, Lord Cormack, is that the Bill has to pass. We do not have time to send it back to the House of Commons given the guillotine of prorogation imposed by the Prime Minister.

Photo of Lord Rooker Lord Rooker Labour

My Lords, in principle, the noble Lord, Lord Forsyth, makes a seductive case—in principle. The noble Lord, Lord Cormack, made the point that the House of Commons might want to look at it again. I do not see any contradiction in the fact that they have rejected the agreement three times. It is their choice—the meaningful vote is theirs, not ours—and it is a soft Brexit. It is Brexit in name only—there is no question about that. They are free at any time they want in the Commons to fix their business to do it. It is nothing to do with us because we are not part of the meaningful vote process. It is not our job to manipulate the way they organise their business on an issue that we have nothing to do with.

It grieves me that we cannot do our proper scrutiny. There is a breakdown of trust because the Government say that there will be time in the Commons on Monday to deal with this Bill. Any amendments sent down there can be amended and something in lieu can come back. Forget the idea that this is a sound deal. Trust has broken down; the prorogation guillotine is there; we have no choice. I therefore ask the noble Lord, Lord Forsyth, to withdraw his amendment.

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

Oh my goodness. I have to say to the noble Lord, Lord Rooker, for whom I have great admiration, that I am struggling with that response because the words say that a letter should be sent by the Prime Minister requesting an extension in order not just to debate but to debate and pass a Bill. He has to send a letter saying he wants an extension because he is planning to pass a Bill to implement the May agreement, which has been rejected three times—the noble Lord, Lord Rooker, is absolutely right—and put in place the results of the discussions, on which I do not have information, other than what I have read in the newspapers. That is anticipating the decisions by the House of Commons.

My noble friend Lord Cormack said that he supported the May deal and that there are many people who supported the May deal, but the May deal was rejected by the biggest vote ever in the other place. The noble Lord, Lord Brooke, made a very good point about the political agreement and having discussions. He may be right in his criticism that not enough has been done to take that part of the thing forward. Taking out this defective part of the Bill does not prevent discussions taking place.

My noble friend Lord Hamilton made a crucial point that if this provision is deficient—and everybody agrees that it is deficient—what is this House for if not to deal with those matters? The noble Lord, Lord Rooker, said there is a matter of trust. I am most grateful to my noble friend Lord Callanan for his honesty and transparency. We were under the impression that the deal agreed between the Front Benches would result in this matter being taken out—he has confirmed that—and we are now being told that it is not being taken out because the legal advice is that it would not fly anyway, so we put into the Bill something which is legally deficient; that is okay, and that is what this House has come to. We do that because we do not believe that the Government will be as good as their word when the people who were on the other side of the agreement have not been as good as their word. I hope that the Government are rather better than that. We have a duty to pass legislation which is proper. I am not a lawyer, but the noble Lord, Lord Marks, told us that it would have no legal effect whatever, and my noble and learned friend Lord Mackay of Clashfern—not Drumlean —gave us the opposite advice, so it would appear that there is at least some doubt about whether it would have legal effect.

My noble and learned friend Lord Mackay said it was not meaningless and the noble Lord, Lord Marks, said he agreed that—I hope I am not pushing too far here—it should not be there but because it is meaningless, it could stay there. The noble Lord, Lord Jones, told us that the entire country is sick to death of all of us. On that, I am sure we can all agree.

Photo of Lord Goldsmith Lord Goldsmith Labour

I am going to ask the noble Lord this question because he has questioned the comments that have been made about trust. In that context, does he want to comment on what the Prime Minister said this morning, which was that he will not seek an extension even if it is passed in law? Does that change his view on whether a question of trust is at play here?

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

No, it does not change my view. What the Prime Minister says he will or will not do has nothing whatever to do with what the law of the land is.

Noble Lords:

Oh!

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

What he says he will do has nothing whatever to do with the law of the land as decided by both Houses of Parliament. I would expect every single parliamentarian to obey the law of the land. In passing the law, there is a responsibility on us to ensure absolute clarity about what it means and what it does. The noble and learned Lord’s party was not prepared to vote for this matter. It was going to abstain on it, and it was put into the Bill because Tellers were not appointed by the amateurs at the other end who had taken control of the agenda. For this House, and in particular for the noble and learned Lord with his vast experience, to suggest that we should leave it in while making that point makes my argument for me.

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

In response to the noble and learned Lord, Lord Goldsmith, yesterday the Minister—the noble Lord, Lord Callanan—gave an assurance that the Government would fully comply with this Bill once it became an Act. Not only would it get Royal Assent but the Government would comply with it. However, almost simultaneously the Prime Minister said that he would be dead in a ditch before he would request an extension. Does the noble Lord, Lord Forsyth, think that we should rely on the Minister’s assurance on behalf of the Government while the Prime Minister says something completely different? Does that not undermine trust not only in the Prime Minister but in the assurance that we got from the Minister yesterday?

Noble Lords:

Oh!

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

If the Prime Minister is dead in a ditch, he is not the Government, and at this stage in considering these proceedings we are talking about ensuring that we have clear and effective law. That is why I tabled this amendment. My noble friend Lord Callanan did not really give me a satisfactory answer, although I appreciated the answer in which he said that the Government had decided that they would not after all take out this measure because they had received advice that it would not have any effect—advice that is contrary to what we have heard from perhaps our most distinguished former Lord Chancellor. Therefore, I am sorry but I do not wish my name to be associated with defective legislation passed by this House and I intend to test the opinion of the House.

Ayes 47, Noes 268.

Division number 1 European Union (Withdrawal) (No. 6) Bill - Report — Amendment 1

Aye: 45 Members of the House of Lords

No: 266 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Amendment 1 disagreed.

Clause 5: Interpretation, commencement, extent and short title