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Business of the House

Volume 808: debated on Wednesday 30 December 2020

Motion on Standing Orders

Moved by

That, in the event of the European Union (Future Relationship) Bill being brought from the House of Commons, Standing Orders 46 (No two stages of a Bill to be taken on one day) and 47 (Commitment of Bills) be dispensed with to allow the Bill to be taken through all its stages today and the Committee to be negatived.

My Lords, on behalf of my noble friend the Leader of the House, I beg to move this first Motion standing in her name on the Order Paper. This Motion will allow us to take all stages of the European Union (Future Relationship) Bill later today. If the provisions in the Bill are to come into force before the end of the transition period, Royal Assent must be notified during today’s Sittings of both Houses. I am grateful to Members in the usual channels for the constructive discussions that we have had about how best to use the short amount of time available to us today. It was agreed that the priority should be to enable as many Back-Benchers as possible to take part in the Second Reading debate, which is what we have done.

The arrangements for consideration of this Bill are clearly not in keeping with our usual practices and I want to be clear that I do not want our proceedings today to be taken as any sort of precedent as to how legislation should be considered in future. We have jointly taken a pragmatic decision, across the main opposition parties and keeping the Convener informed, about how best to use the limited time available.

I inform the House that, in order that our main debate on the Bill can start as planned, if this debate, including any votes on the Motion or any amendments to it, extends significantly beyond 1 pm, the second Business of the House Motion will not be moved and the debate on the coronavirus regulations will not take place today.

Amendment to the Motion

Tabled by

Leave out from “Commons” to the end, and insert “Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with to allow the Bill to be taken through all its stages today.”

Amendment to the Motion not moved.

Amendment to the Motion

Moved by

At end insert “but that this House regrets the gross abuse of the Parliamentary process and lack of any opportunity for effective scrutiny that has been necessitated by the failure of Her Majesty’s Government (1) to enable Parliament to meet in a more timely manner, and (2) to make other provisions for the rights of Parliament to be upheld.”

My Lords, I say first, I think on behalf of the whole House, how grateful we are to the staff of the House for the exemplary arrangements that they have made for our meeting today in the most exceptional circumstances. I also thank the Chief Whip for the courtesy that he has shown to me and to the House, as always. I pay tribute to those in the usual channels who have done the best that they can to make—let us be frank about it—the best of a bad job today. However, we should be aware of the enormity of the step that we are taking today, which is why I make no apology for moving this amendment.

What we are essentially doing is giving the Government power, in one of the most important matters that will face us in this generation, to legislate by decree. There will be no Committee on this Bill, no Report and no ability to move amendments on Third Reading. We will have just one debate, then a guillotine, then a vote, and then all 80 pages, 40 clauses and five schedules of this Bill, which is of enormous importance to the whole future of the United Kingdom, will become law immediately, with Royal Assent signified before the end of the Sitting. If this were an act of God, or some emergency for which we had to provide immediately—such as, for example, the pandemic—one might understand the need for legislative arrangements of this kind, although I note that when we passed the Coronavirus Act, which gave huge sweeping powers to Her Majesty’s Government, we gave it significantly more scrutiny in the most difficult of circumstances, including the need for Members to participate in unusual ways, than we are giving this Bill today.

It is not only that this is an act of the Government, not an act of God. Even given the fact that they reached an agreement only on Christmas Eve, it was still possible for there to be significantly more scrutiny of this Bill than we are giving it today. The Government could have called Parliament back on Monday. We could have had three days of debate on the Bill, which would have enabled normal Committee and Report stages to take place. Recognising, after discussions with noble Lords, that, given the constraints we are under—as I say, they are imposed on us by the Government, but we are under them none the less—we cannot have a normal Committee, I am not moving my first amendment, but I think that it is important for your Lordships to put on record that we deplore these arrangements and we do not regard them as in any way acceptable.

I note that the noble Lord, Lord Ashton, said that this Motion and our arrangements today should not be regarded as a precedent, but they will be regarded as a precedent. Let us be clear: precedents are things that have happened before—that is the meaning of the word “precedent”. We cannot do something and then argue that it is not a precedent for the future; it is a precedent. I can tell the noble Lord, because I have sat on that Bench too, that Ministers in future will be salivating at the powers that your Lordships will give the Government today over the most important piece of legislation that this Parliament will enact. They will cite it as a precedent for similar arrangements, which are without precedent before today.

There is no precedent at all—I have consulted the clerks, who are learned in these matters—in, so far as we can tell, the 800-year history of the House of Lords, and certainly not its modern history, for both suspending the need to have gaps between consideration of Bills in Committee and on Report and suspending Committee and Report entirely, which removes the power to move amendments. There is no precedent for this on a piece of major contested legislation. Your Lordships have done that historically only ever for emergency legislation that has the agreement of the opposition parties—notably terrorism legislation, where there is an obvious and sometimes compellingly urgent need to do so. In the history of this House, a piece of legislation like this has never been considered in the way that we are considering it today.

The issues that we are talking about are not small. Those of your Lordships who listened to the opening speeches in the House of Commons today will have seen the gravity of the issues that are being considered. If I may put in a plug for my leader, my right honourable friend the leader of the Opposition made a forensic speech, which went through in detail all the big issues in this agreement which must be debated and tested and which are at the moment unclear—the Erasmus programme, workers’ rights, the ability of artists and professionals to travel across the continent, what will happen to financial services, which are outside this treaty, business services and the nature of the security partnership. Noble Lords need only read the headings of each of the 40 clauses in the Bill, which relate to matters as big as any that your Lordships have ever debated and legislated for, to see the importance of the issues at stake. What is happening today is not just, as the noble Lord, Lord Ashton, said, not in keeping with our usual practices—I must say that that is the understatement of the parliamentary year; it is the noble Lord’s job to try to keep our proceedings as low key as possible—but something that the House should regard as totally unacceptable.

We are where we are. Today is the 30th and the Bill must become law, so I do not propose that we reimpose Committee stage, but it is important that we put on record that these arrangements are unacceptable. They will be regarded as a precedent in future. They treat the general public, who are looking at our proceedings and expecting us to legislate with scrutiny, with contempt. That is why it is right that we put on record that we deplore these arrangements. With that in mind, I beg to move as an addition to the Chief Whip’s Motion that

“this House regrets the gross abuse of the Parliamentary process and lack of any opportunity for effective scrutiny that has been necessitated by the failure of Her Majesty’s Government … to enable Parliament to meet in a more timely manner, and … to make other provisions for the rights of Parliament to be upheld.”

My Lords, the original Question was that the first Motion in the name of the Lord Privy Seal be agreed to, since when a second amendment has been moved by the noble Lord, Lord Adonis, as set out on the Order Paper. The Question before the House is that the second amendment in the name of the noble Lord, Lord Adonis, be agreed to. I have received no notification, but I suspect the noble Lord, Lord Stoneham, would like to speak.

My Lords, as a member of the usual channels I have to accept my collective responsibilities in that mechanism, but I must say that I am unhappy with the cavalier way in which Parliament is being treated over such an important piece of legislation. We should never have been put in this situation. There were remedies to avoid it if the Government had wanted to use them, but they decided not to.

However, we must accept that we are where we are, as the noble Lord, Lord Adonis, has said. When we discuss the legislation, we will face the situation that the Commons, after four and a half hours’ debate, will probably have passed it by a huge majority, and we will be left with six hours to discuss it. We thought it important that those in the House who wanted to discuss it should at least have that opportunity today. That is why the longest session should be available for Second Reading.

Frankly, if the whole issue around Europe and the deal is about getting back control, this is about getting back control for the Government, not Parliament, and we should all be very concerned. We would have liked at least two days for the debate. We also asked for a full day’s debate to follow once we have had time to discuss and analyse the details. I am grateful to the Chief Whip for conceding a day, but one day next Friday is too soon and inadequate.

We must accept that this is a special situation, as the Chief Whip has said. He has told us that it will not be a precedent and assured us of that in the usual channels. I accept that with good grace. However, this leaves us with a situation where our Select Committees will have to do a great deal of heavy lifting. Our European Union Committee and our trade agreement committee will now have to look at the legislation clause by clause. We should have regular reports from them on their progress so that we can, subsequently, do our due diligence on this legislation and on the deal.

Having said that, doing this in one day will sadly require a lot of people in this Chamber. One thing that we will have to look into again in the new year, given what is going on outside with the Covid pandemic, is whether we should be encouraging people to be in this Chamber, certainly in these numbers, in future.

For today, we in the usual channels accept that the deed is done. There will be a big vote in the Commons. We regret the lack of scrutiny that we will have, but I very much hope that, as the Chief Whip has accepted that this will not be a precedent, we will get the opportunity to scrutinise this Bill and the deal through the work of our Select Committees in the coming months.

I thank the noble Baroness for allowing me to raise a question, if I may, of the Chief Whip. I have sympathy with the noble Lord, Lord Adonis, and his comments about precedent. This is the second Bill in a row which this House has considered under the fast-track procedure. There was the Bill immediately before the Christmas break—a trade Bill, which I covered—which had all its stages taken in one day because the Government knew they did not have the correct procedures in place for tomorrow. Therefore, I think there is a degree of sympathy.

The question I wish to ask is linked with the necessity now for detailed scrutiny after we come back in January, as my noble friend Lord Stoneham indicated. In the drop-in call yesterday, the noble Lord, Lord True, contradicted the Explanatory Notes of the Bill today. The Explanatory Notes state, in paragraph 99, that the Government believe:

“The Bill is not suitable for post legislative scrutiny as it implements an international treaty.”

The noble Lord, Lord True, reassured my noble friend Lord Fox, who asked the question, that there will be opportunities for scrutiny. So can the Chief Whip outline that there will be sufficient debating time and government time in January for us to debate the component parts of the Bill? Will the Government facilitate committees of this House to scrutinise the various components?

Linked with that, Liz Truss and the noble Lord, Lord Grimstone, have said repeatedly that every trade treaty will come with an independently verified economic impact assessment. The noble Lord, Lord True, told me in letter on 19 May that the Government would capture the widest possible range of analysis, from economists and academics to businesses and civil society groups, to, as he put it, represent all parts of the United Kingdom. He said: “We will continue to keep Parliament informed with appropriate analysis”. Will the Chief Whip outline when we can expect to see the impact assessment that will be so vital to understand—as the noble Lord, Lord True, said—the various impacts that will be felt across the different parts of the economy?

My Lords, there is something in what my noble friend Lord Adonis said about the inadequacies, thanks to—I think— the drawn-out negotiating technique chosen by our Government, which has ended up with an agreement which probably could have been reached many weeks ago and left us this very inadequate way of dealing with an important Bill. In normal times, the Commons having sent us a Bill, we would scrutinise it, test whether it fulfils the roles set for it, and ensure that it is workable and that there is transparency and accountability. But, sadly, that is not what we have the chance to do, partly, as I say, because of the Government’s own delaying in negotiations—whether because they were afraid of the ERG or your Lordships’ House, I leave to others to conclude.

But what it does mean is that the House today does have to take exceptional and extraordinary action. I thank particularly the amazing work of our Constitution Committee, which kindly looked at this and, in particular, at the fast-tracking of it. It agreed and accepted absolutely the case for taking exceptional, extraordinary action, which is necessary in this case basically to make sure that we do not crash out without a deal—nor, indeed, find ourselves with legal uncertainty when there is a gap in law between the end of 31 December and the beginning of 1 January. We do need a statute book that works on Friday morning.

Of course, I particularly regret not being able to get into this Bill. I love all that: negotiations, amendments and groupings. No? Okay, well, I quite enjoy them anyway. What was important, particularly over the internal market Bill, was how much change this House made. We sent back a much-improved Bill, partly because of the hard work, commitment and knowledge of Members of your Lordships’ House. Having looked at the Bill, which I saw only at 12 o’clock yesterday, there really is a lot there that we would be able to get stuck into, with the sort of scrutiny we normally do, if we had the time.

But that is not where we are. We cannot alter the treaty anyway—not a jot or comma of it—because that is agreed by 27 Governments. We should not pretend, therefore, that there is anything we can do, other than stop it in its tracks and have no deal, which I know none of us would want. In fact, for those of us who have looked at it, the Bill takes the deal and drops it into legislation. Given that we cannot alter that deal and have to drop it into legislation, the truth is that even with a Committee stage, a Report stage and a Third Reading, there would be nothing we could do that would alter the treaty. So I think that a degree of realism is perhaps worth bearing in mind.

Of course we are not going to be able to do what we should do, but, as everyone has accepted, the Bill has to get Royal Assent tomorrow. It seems to me that the important thing is that we can carry out the other function that this House is so renowned for—not just detailed legislation but the influencing of public opinion, the Government and the Commons. The most important thing is that we can do that today via the debate, and I therefore hope that we can get on and hear as many of your Lordships, with their views on the treaty, as possible. I think that that is something we can do.

So I think we have to let this business get on. I would like to thank not only the usual channels but all the staff who have enabled us to do this and be here today. Your Lordships do not get holidays, so you are not giving one up, but they are giving up their Christmas holiday to be here and do all the work, and we owe them a great debt of gratitude.

I believe that we have to leave with a deal, and therefore we have to do this Bill today. We therefore will support the government Motion but will not support the amendment to it.

My Lords, before I call the Chief Whip to reply, is there any other Member in the Chamber who wishes to contribute to this debate? As there is not, I will call the Chief Whip to reply.

My Lords, I echo the previous speaker’s remarks on the staff who have helped us be here today. They have to do it; we do it for fun, and because, actually, we have a serious job in front of us. As I made clear in my opening remarks, we had to make a difficult decision about how best to use the time available to us.

I turn specifically to the amendments in the name of the noble Lord, Lord Adonis. You can tell he was the Secretary of State for Transport: you wait for weeks for an Adonis amendment and then two come along at once. But that is why I am particularly grateful that he has not moved the first—and ruined my joke, really.

But, seriously, he and a lot of other noble Lords have asked why the House was not recalled earlier than today. The deal was agreed late on Christmas Eve, and the Bill and its associated documents then had to be finalised, so today is the soonest the legislation could be considered. Also, bearing in mind that we are in the middle of a pandemic, we had to use hybrid proceedings—which involve speakers’ lists beforehand—otherwise we would have excluded many Peers who wanted to speak.

Perhaps I might say a quick word about the timing—about before and after. The reason that we have to finish today, in this sitting, is that the UK and the EU need to exchange notification of completion of procedures for provisional application early on Thursday 31 December. This exchange cannot be done until the Bill has received Royal Assent, as the passing of the legislation is a necessary procedure for provisional application. So we were very much stuck in a gap between being able to do it when the Bill and its associated documents were ready and having to do it at a very quick pace.

If we did as the noble Lord would like and had a provision for a substantive Committee stage, the time available for Second Reading would necessarily be reduced, and far fewer Back-Benchers would be able to take part. As I said, our proceedings today cannot be open-ended—Royal Assent must be notified to both Houses today.

We have heard that many noble Lords do not like the deal, and there have been criticisms of the negotiating process; I expect that we will hear more of that later on today. But I ask the House to consider what the alternative will be if the Bill does not complete its passage through the House today, which the noble Baroness, Lady Hayter, referred to.

If I might say a word about precedent, I repeat what I said in my opening remarks that the way we have to consider the Bill today is not in keeping with our usual practices. The House rightly takes pride in its role as a revising Chamber, but today, time really is of the essence, and I consider these circumstances to be exceptional.

The noble Lord, Lord Purvis, is quite right: a Bill was fast-tracked in exactly the same way the day we rose for the Christmas Recess. I do not know where that leaves us; either he is right that there is a precedent or the noble Lord, Lord Adonis, is right that there is not and that it has not been done before. It has been done before but the more important point is that I have stated on behalf of the Government that we do not consider today to be a precedent, so that can be referred to. Of course, this self-governing House is able to reform its procedures, but I say again that we do not consider that in the normal course of events other Bills should be done like this. Many Bills have been fast-tracked and each time it is up to the House to do that. However, it is important that—this is what was discussed in the usual channels—I make it quite clear that this today is not regarded as a precedent.

The noble Lord, Lord Purvis, asked me some detailed questions about post-legislative scrutiny and economic impact assessments. If it is okay with him, I will get a proper answer to that. I do not have the details with me now but obviously, I will write to him and tell him where we are on that.

I understand the views of the noble Lord, Lord Adonis, on the usual procedures of the House but, in these exceptional circumstances, I respectfully ask him to withdraw his amendment, bearing in mind, as he says, that we are where we are.

I congratulate the noble Lord on his sense of humour. However, I add that if his idea of fun is meeting here on 30 December, I am the Fat Controller.

I thank the noble Lords, Lord Purvis and Lord Stoneham, and my noble friend Lady Hayter for their contributions. I defer to no one more than my noble friend Lady Hayter on the importance of scrutiny. She has probably contributed more hours to the scrutiny of European legislation than almost all other parliamentarians put together, except for one or two Ministers. However, it is right to observe and it is important for people to understand that what is at stake in the Bill is not simply the taking of a treaty and the putting of it into law, as she said, but all the follow-on requirements, including the requirements for parliamentary scrutiny.

The Bill was published only yesterday afternoon so I have had only one opportunity to read it, but I have counted eight separate Henry VIII provisions in it which give the Government sweeping powers to legislate by decree over and above the Bill itself. For example, Clause 29 says:

“Existing domestic law has effect on and after the relevant day with such modifications as are required for the purposes of implementing in that law the Trade and Cooperation Agreement or the Security of Classified Information Agreement”.

When you read the schedules, it is clear that the Government have a hugely exceptional power to modify legislation in order to bring it—in their own judgment, with no parliamentary procedure at all—into conformity with their own view of the treaty. I am absolutely sure that if we had had a Committee stage we would have been after those provisions with a vengeance, and my noble friend Lady Hayter would have led the charge.

I am not moving the first amendment so a large number of the remarks that were made do not apply. We will not have Committee and I am not proposing that. On the precedent, it is true that other Bills have been enacted in one day. I was careful to say “a Bill of this contested magnitude”, and no Bill has conferred on Her Majesty’s Government and on the state powers and changes of policy of this magnitude which we have agreed in this accelerated way. Therefore, I wish to turn the Chief Whip’s argument on him. He said to us that this is not a precedent. It is literally a precedent, because it will precede anything that comes hereafter. But if it is not a precedent, I can see no reason why my second amendment, which deplores the process but allows it to continue, should not be agreed to. On the contrary, I suggest to your Lordships that it is all the more important that we enact this amendment, which deplores the absence of parliamentary scrutiny and our usual practices in considering the Bill, for the very reason that if we are on the record deploring it, it is all the less likely thereafter that it will be regarded as a precedent.

These issues are hugely important for the whole way in which we conduct our parliamentary affairs and it is right that noble Lords should be on the record as to whether or not they think these arrangements are satisfactory. I therefore wish to test the opinion of the House.

Motion agreed.