Business of the House

Motion to Agree

That Standing Order 72 (Affirmative Instruments) be dispensed with on Wednesday 27 March to enable a Motion to approve a draft affirmative instrument laid before the House under Section 20(4) of the European Union (Withdrawal) Act 2018 to be moved on that day whether or not the Joint Committee on Statutory Instruments has reported on it.

My Lords, the Motion standing in my name will allow us to dispense with Standing Order 72 tomorrow so that we can take the SI that will amend the definition of exit day in UK law before the Joint Committee on Statutory Instruments has reported on it.

Whether or not we approve the SI, we will now not be leaving on 29 March. As noble Lords will know, the Article 50 period has been extended. Exit day has already been changed and it is important that domestic law is aligned with that. Without the SI coming into force, the domestic definition will remain set at 29 March —this Friday—and our statute book will not function correctly. We need to suspend the Standing Order because the JCSI has not yet had the opportunity to formally consider the SI, which was laid yesterday. The committee meets on a Wednesday afternoon and its reports are not normally available until the following Friday. The Government take the scrutiny of their secondary legislation very seriously and I do not move this Motion lightly.

I can tell the House that the extension SI was sent in draft to the JCSI’s lawyers at the end of last week to undergo pre-laying scrutiny, which is one of the highly valuable functions that the committee and its staff perform on behalf of both Houses. It is my understanding that the full Secondary Legislation Scrutiny Committee will, outside of its current working pattern, meet this afternoon to consider the SI and will make a report available to the House ahead of the debate tomorrow. I am grateful to both committees. I beg to move.

Amendment to the Motion

Moved by

To leave out from first “that” to the end and to insert “this House declines to consider the draft European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019 until a report from the Joint Committee on Statutory Instruments on the draft Regulations has been laid before the House, as it is not in accordance with the practice and traditions of the House to consider significant affirmative instruments laid by Her Majesty’s Government without prior consideration by that Committee.”

My Lords, I thank the Leader of the House for what she has said and, if I may, I will respond to that in my opening remarks, rather than at the end. For the avoidance of doubt, I must make it clear that I do not have any intention of using this amendment to either extend or not extend our stay in the European Union. Noble Lords who have followed our debates know my view. I deplore the fact that we are not leaving on Friday, but I recognise the circumstances that the Leader of the House has referred to; I personally will not make, recommend or participate in any attempt to talk out that statutory instrument, and I know of no proposal to do so. Therefore, any such suspicion is completely unfounded and it is no pretext for the Executive to evade the normal procedures of Parliament on these highly significant regulations that we will debate tomorrow.

Having set that aside, perhaps I may get on to the fundamental point that I want to make. I speak as someone who spent 13 years in the usual channels of this House and who has been a Member in the nine years that have followed. I have come to understand that there is no greater protection of this House, or indeed of Parliament as a whole, than the freedoms that your Lordships enjoy in procedure and the duties that are laid on the Executive. It is the flexible freedom that we have, and the demands that we are able to make of the Executive, that have enabled this House to become the undoubted master of scrutiny.

In these troubling constitutional times I submit that, wherever we stand, it is more important than ever that the House should protect its working procedures. If the Executive is incoherent and not consulting Parliament soon enough—or not consulting it enough—and if the other place now collectively purports to act as the Executive, then who provides the scrutiny if not this House and its committees?

The Joint Committee on Statutory Instruments is not a committee of this House but of both Houses. It exists to protect both Houses against the inappropriate exercise of powers by the Executive. We have in our Standing Orders something the other House does not: a requirement that a report is laid before Parliament by that committee before an important matter is debated. This Standing Order is a protection not only for this House but for the other.

My Lords, I am having some difficulty in following the noble Lord’s line of argument. I would have thought that his remarks would be better directed at the Prime Minister. After all, it is she who has prevaricated about letting the House of Commons make the decision in this regard and then twice ignored its views. With the greatest respect to him, given the dire situation that we are in, what alternative do we have but to take this SI as soon as possible?

My Lords, the noble Lord makes a political point.

Oh!

I was seeking to make a procedural point on behalf of your Lordships’ House. Our normal procedures are not there to protect the Government, let alone to protect them from any criticism, but to protect Members of your Lordships’ House and of the other place to allow them to make representations and for us to hear a considered report. I believe that that is the procedure that we should follow.

We have heard that the Joint Committee is meeting tomorrow. There are many precedents for the Joint Committee to lay its report before the House after its meeting. The current circumstances are far from normal, as the noble Lord, Lord Hunt, has said, and there is a compelling case for this SI and a report on it to have been considered and reported on by the JCSI, which should be done tomorrow. Then, if need be, the Government could bring the SI before this House tomorrow, except in the evening rather than as first business, and all noble Lords would be informed by what our Joint Committee—which otherwise will be labouring to no purpose if we have already debated the matter—has said.

I do not believe that any part of Parliament should be bypassed by an exceptional Motion in that way, nor do I believe that your Lordships should lightly give up these scrutiny protections. Encouraged by what my noble friend has said, I ask her not to press the exceptional Motion, which will provide further precedents for the future, but to await tomorrow’s consideration and report by the Joint Committee and, if need be, we can proceed with the business later tomorrow or on Thursday. I really think it is unnecessary and high-handed to have laid such a Motion in the circumstances that my noble friend has set out when the committee is meeting tomorrow to consider the matter anyway. I beg her to reconsider her Motion and beg to move my own.

My Lords, this is a particular pleasure for me, and people behind me will understand why: I was brought up on Citrine’s ABC of Chairmanship, and we are dealing a lot with Standing Orders and when it is appropriate for them to be suspended. I never thought I would revert to that book in your Lordships’ House.

Standing Orders, by their nature, are not laws of the country. The fact is that they can be suspended exactly because the times are exceptional. I agree with what I think was the implication of my noble friend behind me: the situation that we are in is not of this House’s making but is because of a failure of negotiation by someone else. In fact, the SI we are discussing still does not have one date on it but two, though no doubt we will make those comments when we debate it.

For today, though, there is a different issue before us: the certainty that is necessary, particularly for lawyers and courts but also for businesses, citizens and everyone else. The situation at the moment, as the noble Baroness the Leader of the House said, is that the agreement reached with the EU may not be exactly what the Prime Minister wanted but it does move the date on which we will leave the EU. It was made with agreement because, under Article 50 of the treaty, the change of date can be made only with the agreement of the member state. So it was our Government who agreed to the change of exit date; it is not something that has been imposed on us but something that our Government accepted. The date to which the exit will move will be in either April or May, as is allowed for.

The important issue is that we will not leave this Friday, but at the moment we have an Act of Parliament that will come into effect then. All the statutory instruments we have passed and all the other changes come into effect at 11 pm our time on Friday. If we fail to deal with this, we could have a situation where we will still be in the European Union till at least 12 April and completely controlled by all the rules we have been part of, but the Act and all the statutory instruments would also be in force. We would have two lots of laws on our statute book at the same time, which would cause a lot of confusion for business, citizens and anyone needing to act by those laws. They could be laws on the environment, the health and safety of animals, consumer rights, workers’ rights, or all sorts of other things. This raises an issue about the importance of bringing absolute clarity to domestic law. The case being made is that it would be impossible to do this if one particular committee had not looked at it. This is a committee whose members have not been addressing us—they have certainly not addressed anyone on our side of the House—to say that you cannot meet without our committee’s views. We have not been inundated with views from those committee members, which I think is significant.

My Lords, I seem to remember that we had quite a lot of debate in this House about the inclusion of the date of 29 March in the legislation. It astonishes me greatly to find that the Prime Minister can go to a meeting in Brussels and, suddenly, what is in statue is completely irrelevant. However, I do not propose to say anything about that because I strongly support my noble friend Lord True. Unlike the noble Baroness, he did not address whether we needed to change the date, and the reasons for changing it, but rather the procedure of our Standing Orders, which requires a report from the Joint Committee on Statutory Instruments.

The noble Baroness, Lady Hayter, for whom I have enormous regard, has suggested that perhaps we should sit on Friday to see the committee’s report. That sounds a bit like the tail wagging the dog. There is an issue under our Standing Orders that we should receive a report from the committee. Reading the Explanatory Memorandum, I note that the United Kingdom sent a letter dated 22 March from the Permanent Representative of the United Kingdom to the EU. If he could write a letter to the EU, why could a letter not have been sent to the chairman of the joint committee, inviting it to meet to discuss the matter and report to this House? This may sound like a rather pedantic point—

Yes.

Oh!