European Union (Withdrawal) (No. 6) Bill

Lord Forsyth of Drumlean Excerpts

2nd reading (Hansard): House of Lords
Thursday 5th September 2019 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

Is not the reality, as we can see from the gilets jaunes and from what is happening in Italy, Greece and Spain, that, as the polls show, many people are thoroughly discontented with the European Union, but, thanks to Gordon Brown, who saved us from the euro, we are able to leave in a way that would be extremely difficult for them?

[Baroness Meyer]

Absolutely.

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[Lord Wallace of Saltaire]

My Lords, we have had a very constructive debate today. It has been much more interesting and wide-ranging than the long hours we had yesterday attempting to prevent today’s debate. I welcome the noble Lord, Lord Forsyth, on his return. I had understood that he was on a sleeper train to Scotland last night—perhaps he was not—but it is very courteous of him.

[Lord Forsyth of Drumlean]

The noble Lord is referring to me and the noble Baroness, Lady Hayter, told me off for intervening because I did not get here in time. I had to go and speak at a social care conference and came back at the first opportunity—which I would have thought was perfectly admissible. While I am on my feet, perhaps I may correct the noble Lord. What we were doing was preventing this House from having a guillotine Motion—it had nothing whatever to do with the Bill.

[Lord Wallace of Saltaire]

It is all the more courteous of the noble Lord to return if he had a speaking engagement in Scotland. I regret that the noble Lords, Lord Dobbs and Lord True, and the noble Baroness, Lady Noakes, have not had the respect for the House to be here today, having detained us for so long in those circumstances last night. I hope that the Conservative Whips will make it clear to them that respect for the House in these circumstances would have suggested that attendance was more appropriate in their circumstances, as far as those of us who cut short our sleep and returned on time are concerned.

We are discussing some fundamental constitutional issues in this Bill: the relationship between Parliament and the Government. It is highly relevant to that that the leave campaign promised us that Brexit would restore not just British but parliamentary sovereignty.

Listening to the noble Lord, Lord Howard, reminded me of some of my undergraduate studies in history—the 17th-century conflicts and the emergence of the Tories and the Whigs, the Tories being those who defended the Crown against Parliament, with the Whigs favouring a stronger Parliament. However, the noble Lord referred not to the divine right of kings but to the will of the people. In some ways, this is an equally difficult concept to pin down and define.

These are very wide-ranging issues. The future of the union has been mentioned. My son now lives and works in Edinburgh and I have therefore visited it much more frequently in the last three years. I understand that the future of the union is at stake in this debate for Scotland and Northern Ireland.

Then there are the questions suggested by the right reverend Prelate the Bishop of Leeds, my noble friend Lord Campbell, the noble Lord, Lord Wilson of Dinton, and others. What sort of country do we want to live in? What sort of values do we think we are about? Do we think that we do not share European values, that we share more with the American right and that that is where we would like to be instead? We have also discussed the conventions of what we used to regard as our wonderful unwritten constitution.

European Union (Withdrawal) (No. 6) Bill

Lord Forsyth of Drumlean Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 6th September 2019 Lords Chamber

[Lord James of Blackheath]

I thank the noble Lord. I tabled my amendment because, in everything that has been said so learnedly on this matter, nobody has covered the subject of sovereignty, which is really at the core of the original intention to take back control. Therefore, I am concerned that the public might be asked to give an opinion on this—

[Lord Forsyth of Drumlean (Con)]

We had a very long period of what some people have called filibustering. It resulted in a deal between the Front Benches in which the Opposition Leader gave an undertaking not to use the guillotine or this procedure again. We respected that. We agreed that the Bill would be given safe passage with speed through the House. Does my noble friend not think that it might be more sensible to withdraw his amendment and allow us to proceed with what both sides of the House have agreed to do?

[Lord James of Blackheath]

I entirely recognise that fact. My concern, which I am sure the noble Lord will share, is for the understanding of the British public when they have to accept whatever is the final decision. I do not believe they have enough knowledge of the reality of what stands behind the agreements between which they have to choose. That is why I worded the amendment as I did, as the only way to bring this into the discussion today. I thank noble Lords for their comments. I will beg leave to withdraw my amendment but at the same time I make an urgent plea to all who are concerned about this to get the public better informed. They are not well informed.

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[Lord Forsyth of Drumlean]

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—

[Lord Hunt of Kings Heath (Lab)]

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.

[Lord Forsyth of Drumlean]

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.

[Viscount Hailsham]

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.

[Lord Forsyth of Drumlean]

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.

[Viscount Hailsham]

It was asked at Second Reading.

[Lord Forsyth of Drumlean]

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.

[Lord Stirrup (CB)]

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?

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[Baroness Ludford (LD)]

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?

[Lord Forsyth of Drumlean]

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?

[Baroness Ludford]

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.

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[Lord Cormack (Con)]

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.

[Lord Forsyth of Drumlean]

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.

[Lord Cormack]

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.

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[Lord Mackay of Clashfern]

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.

[Lord Forsyth of Drumlean]

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?

[Lord Mackay of Clashfern]

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.

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[Lord Forsyth of Drumlean]

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?

[Lord Mackay of Clashfern]

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.

European Union (Withdrawal) (No. 6) Bill

Lord Forsyth of Drumlean Excerpts

Report stage (Hansard): House of Lords
Friday 6th September 2019 Lords Chamber

Moved by

[Lord Forsyth of Drumlean]

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

[Lord Forsyth of Drumlean (Con)]

My Lords, I do not want to detain the House in any way.

[Noble Lords]

Oh!

[Lord Forsyth of Drumlean]

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.

[Lord Cormack (Con)]

He is a very good chap.

[Lord Forsyth of Drumlean]

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.

[Lord Cormack]

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.

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[Lord Forsyth of Drumlean]

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.

[Lord Goldsmith]

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?

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[Lord Forsyth of Drumlean]

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!

[Lord Forsyth of Drumlean]

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.

[Baroness Ludford (LD)]

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?

[Lord Forsyth of Drumlean]

I am so tired of this political argy-bargy.

[Noble Lords]

Oh!

[Lord Forsyth of Drumlean]

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.