European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019

Lord Vaizey of Didcot Excerpts

Monday 20th May 2019 General Committees

[Sir William Cash]

I have indeed seen it, and I recall that a number of extremely abusive and obscene remarks were made with reference to the United Kingdom during that documentary. I also remember some of the chocolate soldiers, if I can put it like that, in the European Commission, who were delighted when they thought that the withdrawal agreement might go through, saying, “At last, we’ve created the circumstances in which the United Kingdom will become a colony.” That, of course, is completely true. I do not want to be diverted into all those arguments, but this is about who governs the United Kingdom, and these 27 other member states are not doing anything to help us or the Government, and certainly not the Prime Minister or our national interest.

I would add that the Cooper-Letwin Bill, which was authorised to proceed under a business motion agreed to by a majority of merely one, overturns the parliamentary governmental system to which I referred earlier, which is protected by Standing Order 14. That was done by an unwarranted constitutional revolution. As I said to the Leader of the House on the morning after the Prime Minister’s abject surrender to the other 27 member states and the EU Commission, the whole thing stinks. Incidentally, in fairness to the Leader of the House, she, together with eight other members of the Cabinet and, I understand, seven out of 10 in the Whip’s office, originally opposed the extension of time, in the national interest.

That day, I asked the Attorney General whether, under the ministerial code, his advice had been sought on that issue, but received the stock-in-trade answer that neither his advice as a matter of fact nor its contents are disclosed. That afternoon, I challenged the Prime Minister on the Floor of the House. I pointed out that she had broken her promises—made more than 100 times—not to extend exit day and that she was undermining our democracy, Northern Ireland, our right to govern ourselves, our control over our own laws and our national interest. I then called on her to resign. All this encapsulates the importance of annulling the regulations, for reasons that I will now give, and which I have set out in my submissions to the Joint Committee on Statutory Instruments, which, in fairness, had not had the opportunity to see them on 11 April.

On 11 April, the Government introduced the statutory instrument with a full explanatory memorandum—which I am sure the Minister read very carefully—setting out their legal assertions as to why the instrument purported to be lawful. As Chair of the European Scrutiny Committee—I speak in a personal capacity and on behalf the 82 Members of Parliament who signed my motion to annul the instrument—I presented my submission on 24 April, after the recess, to the Joint Committee on Statutory Instruments, in which I objected to the basis on which the Government sought to justify the legality of the statutory instrument in the explanatory memorandum.

Paragraph 1.2 of the explanatory memorandum states:

“This memorandum contains information for the Joint Committee on Statutory Instruments.”

On 1 May 2019, with the statutory instrument and the Government’s explanatory memorandum before it, the Joint Committee declined to draw special attention to the statutory instrument, which sought to delay exit day until 31 October, stating simply that:

“At its meeting on 24 April 2019 the Committee considered the Instruments set out in the Annex to this Report, none of which were required to be reported to both Houses.”

There were 20 such unreported instruments, including the one before this Committee. The role of the Joint Committee, whose membership includes Members both of the House of Lords and the House of Commons, is to assess the technical qualities of each instrument in its remit and to decide whether to draw to the special attention of each House any instrument on one or a number of important grounds. Those include that the instrument imposes a charge on public revenue—I already have referred to the fact that it is costing the British taxpayer £7 billion to move the date from 29 March to 31 October.

Other grounds include doubt about whether there is the power to make the instrument at all, that it appears to represent an unusual or unexpected use of the power to make it, that its form or meaning needs to be explained and that its drafting appears to be defective. In my view, it would have been appropriate for the Joint Committee to draw to the special attention of each House this profoundly important historic document, but it chose not to do so. The Joint Committee decided that it would not make a special report on this vital question, nor did it publicly respond to my submissions, which were based upon a detailed legal analysis of the highest order. According to the 59th report of the 2017-19 Session, the Committee drew special attention to only one of the instruments reported. My arguments in disagreeing with the Government’s explanatory memorandum are based on a number of important issues, as a matter of both law and procedure.

Paragraph 2.3 of the explanatory memorandum states:

“This European Council decision and the United Kingdom’s agreement to it constitute a binding agreement to extend in EU and international law.”

That statement is open to an interpretation that places responsibility for the extension of the UK’s membership on the European Council, but the Council cannot extend the UK’s membership. Without an agreement, which is reached under international law between the UK and the Council, there is no extension. Paragraph 2.3 confuses the matter all the more when read in conjunction with a letter from Sir Timothy Barrow following the Council meeting of 10 April, in which he refers to a

“Council decision taken in agreement with the United Kingdom”.

As the Committee will know, the United Kingdom is expressly excluded from Council decisions and decisions in relation to extensions. Therefore, no Council decision was or could be taken with the United Kingdom’s participation. Only with a separate act of the United Kingdom outside the Council could an international agreement of the kind necessary to extend the UK’s membership of the EU have come about at all. To the extent that the United Kingdom’s representative in Brussels purported to agree to an extension, that act was performed under circumstances that did not allow the United Kingdom to give due consideration to the terms that the Council had proposed—demanded, I would say—or the terms of the United Kingdom’s response.

The hastiness of the letter was followed by the Government’s failure to observe the procedures required for the United Kingdom to enter into such international agreements. The memorandum asserts that, as a result of events following the European Council decision,

“the UK remains a Member State until 31 October 2019 regardless of the passage of these Regulations at the domestic level.”

As a matter of law, I believe this statement is untenable. The explanatory memorandum further states that the Government “will also now”—at that time—

“delay commencement of the repeal of the European Communities Act 1972”

under the arrangements for commencement orders. That ignores that fact that, under the Government’s own guidelines on commencement orders, they are required to be made within a reasonable time, otherwise questions of ultra vires are raised. The commencement order has been sitting there since 26 June 2018—far too long.

Moreover, there is no provision in the statutory instrument for exit day to take place on any of the possible alternative dates provided for in article 2 of the decision of the European Council of 11 April 2019, which stipulates a number of conditions for that further extension. The decision prescribed an extension lasting no longer than 31 October 2019, but with the proviso in recital 8 that, if the withdrawal agreement was ratified meanwhile, the United Kingdom would leave the European Union on the first day of the month following the completion of the ratification procedures.

Article 2 of the decision further requires that, if the United Kingdom did not ratify the withdrawal agreement by 22 May 2019 and had not held European parliamentary elections in accordance with European law, the decision would cease to apply and the extension would therefore expire on 31 May 2019. The effect of the decision was therefore to provide for three possible dates on which the United Kingdom might cease to be a member state of the European Union. On 11 April 2019, the Government wrote to the European Council accepting the demands of the decision. The statutory instrument now provides that exit day is 31 October 2019. However, there is no provision in the statutory instrument for exit day to take place on any of the possible alternative dates set out in the decision—I repeat: on any of the possible alternative dates set out in the decision. Therefore, the statutory instrument does not

“ensure the day and time specified in the definition are the day and time that the EU Treaties are to cease to apply to the United Kingdom.”

Thus, the statutory instrument was not made for the statutory purpose for which it was designed, and it is ultra vires and void, with the effect that our exit was at 11 pm on 12 April 2019.

Under section 1 of the European Union (Withdrawal) Act 2018, the repeal of the European Communities Act 1972 is tied to exit day. Thus, European law would no longer have precedence over domestic law from exit day. Furthermore, under section 5(1) of the same Act, the principle of the supremacy of EU law would not apply to any enactment or rule of law passed or made on or after exit day. Similarly, other provisions of the withdrawal agreement, such as section 6(1), would apply, so that decisions made by the European Union after exit day would no longer be binding on the courts of the United Kingdom. Furthermore, it is to be observed in paragraph 6(3) of the explanatory memorandum that the European Union (Withdrawal) Act 2019, for which Royal Assent was given on 8 April 2019, amends paragraph 14 of schedule 7 to the 2018 Act to convert the regulations in question from the affirmative to the negative resolution procedure.

[Mr Edward Vaizey (Wantage) (Con)]

I wonder whether my hon. Friend could help me on two points. First, if he succeeds in defeating the regulation in the Committee today, as he might well through the force of his arguments, what will be the practical outcome of his victory? Secondly, on his arguing that the regulation is ultra vires, is this not a matter for the courts, including the Supreme Court, rather than Parliament?

[Sir William Cash]

It is indeed a matter for the courts as well, but it is also prudent and constitutional for Government to make laws in such a manner as to be within the law. We operate under a system of the rule of law, and it is therefore unacceptable for Governments to make legislation. That is why the Joint Committee on Statutory Instruments and other Committees that scrutinise legislation, including the European Scrutiny Committee, which I happen to have the honour of chairing, have a job to do in bringing Governments to account. This Committee and the prescribed annulment procedures that we are going through are part and parcel of that democratic, accountable procedure.

Although it is ultimately for the courts to make decisions on the basis that my right hon. Friend suggests—namely that decisions can be evaluated, as in the Gina Miller case—in this instance we are not at that point yet, and in the meantime we have a Government passing legislation that I and many other distinguished Queen’s counsel and former judges believe to be unlawful, void and ultra vires on the one hand. On the other hand, given the devious means by which the Cooper-Letwin Bill was brought through, it is not appropriate for any proper system of parliamentary government, because it is inconsistent with the normal behaviour of Parliament in relation to the passing of legislation.

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[The Chair]

Who is on the Committee? I call Mr Edward Vaizey.

[Mr Vaizey]

I do not want to get in their way. I will let them go first. [Interruption.]

[The Chair]

Order. As I explained at the beginning, I will take Committee members first, and if there is any time left, I will extend it to other Members of Parliament who are not on the Committee.

[Mr Vaizey]

I might as well get up and say my two pennies’ worth. I congratulate my hon. Friend the Member for Stone on setting out his case against the regulations so concisely, succinctly and clearly. It seems, from a number of the interventions that were made during his exposition, that this may well become a wider debate about the nature of the delay in our leaving the European Union.

I want to put on the record, first, my concern that I have seen, over the past three years, a sort of pick-and-mix attitude to parliamentary procedure. I have heard hon. Members disparage certain elements of parliamentary procedure when it does not suit their case and praise certain elements of it when it does. My first point is that I think we should all be consistent. We are sometimes in danger in these debates of demeaning the role of Parliament. For example, I heard the Cooper-Letwin Bill described in an intervention as devious or deceitful.

[Mr Francois]

No, it was rancid.

[Mr Vaizey]

Rancid—I stand corrected.

[Mr Simon Clarke (Middlesbrough South and East Cleveland) (Con)]

Does my hon. Friend agree that the greatest diminution of the standing of Parliament comes when we break the promises upon which we were elected?

[Mr Vaizey]

My hon. Friend has given a perfect example of the kind of spurious and, frankly, silly points that are made during these debates. That was the first silly point of no doubt many that will be made as I continue to make my case. [Interruption.] Well, a Bill that I voted for—the Cooper-Letwin Bill—was described as rancid. That is exactly the point I am trying to make. It is perfectly all right for one Member of this House to describe a Bill that I supported, which was perfectly within the constitutional procedures of Parliament, as rancid, but apparently it is not all right for me to describe an hon. Member’s intervention as silly as part of the robust tradition of debate in this Parliament.

[Mr Francois]

If my hon. Friend wants a robust debate, will he give way?

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[The Chair]

Order. This is not a private conversation or debate or argument between you. We have this legislation in front of us. The floor is yours, Mr Vaizey, and you may give way if you wish. Mr Francois would like to catch your eye, but it is up to you whether to give way. I am not going to have chirping from the sidelines all the way through.

[Mr Vaizey]

I was about to praise my hon. Friend the Member for North East Somerset. He has published a fantastic book on 12 Victorian heroes, which has received a great deal of publicity.

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

Will my right hon. Friend give way?

[Mr Vaizey]

I hope that when my hon. Friend makes his intervention, which is imminent, he might support me in saying that this House has a fine tradition of robust but courteous debate when we disagree.

[Mr Rees-Mogg]

I am grateful to my right hon. Friend for giving way; he is enormously kind. It is only fair to add that most of the reviews have not been entirely sympathetic.

[Mr Vaizey]

I have to confess that I have read one or two, but that leads me to my next point.

[Mr Francois]

Before my right hon. Friend moves on, for the avoidance of doubt, I never said the Cooper-Boles-Letwin Bill was unconstitutional. The way it was rammed through the House in just over three hours, by one vote, was a constitutional outrage, but I did not say it was unconstitutional. I did say it was rancid. They are two slightly different things.

[Mr Vaizey]

I agree. I did not describe my right hon. Friend’s earlier intervention as unconstitutional; I described it as silly. They are two different things. He was perfectly entitled under the constitution to make his intervention. I just thought it was a silly, pointless intervention that did not help to progress the debate.

The book written by my hon. Friend the Member for North East Somerset, and its reviews, leads me nicely to my second point. One should always consult the original source—in that case, his excellent book—rather than reviews, which might be driven by ulterior motives. My point is that, when it comes to the parliamentary constitution, hon. Members should look at the fundamentals of how Parliament operates rather than being driven by the particular viewpoint they take on our exit from the European Union.

We saw that in the debate on article 50. We found ourselves in a peculiar situation where quite a few hon. Members argued that Parliament should have no say in the most important decision we are likely to take in our political lifetimes, and probably the most important decision Parliament has taken since the second world war. We relied on a ruling by the Supreme Court to allow Parliament to take back control and make that decision. I certainly would not describe the article 50 Bill as a rancid Bill; it was debated comprehensively, and Parliament was then able to take a vote.

I can tell by certain hand gestures from the Chair that you are keen, Sir Lindsay, for me to bring my remarks—

[The Chair]

No, I was just trying to help. You were drifting, and I wanted you to come back to points relevant to the regulations.

[Mr Vaizey]

I now understand what you were indicating, Sir Lindsay.

[The Chair]

I can see I will have to spell it out all the way through.

[Mr Vaizey]

Exactly. You were indicating two things, Sir Lindsay: first, that I need to get back to the point; and secondly, that I am an incredibly poor reader of hand signals from the Chair. I can tell that a few other hon. Members, who may not be members of the Committee, are also keen to project hand signals in my direction as part of this courteous but robust debate—the kind of debate that has characterised our approach to our exit from the European Union.

Turning to the regulations in front of us, my fundamental problem with the argument of my hon. Friend the Member for Stone is as follows. First, fundamentally, he believes that the regulations are ultra vires—that Parliament does not really have the power to pass them. He did not suggest that. He is an honourable man, and he would never dream of suggesting it. There can be no suggestion that the Government are trying to pull a fast one—that they are consciously passing legislation that they know to be ultra vires. I think it is the case, as we saw with article 50, that the Government take advice from their lawyers and follow procedures that they think are within the law and the constitution.

[Sir William Cash]

rose—

[Mr Vaizey]

That is the case here, and my hon. Friend is about to help me make my fundamental point.

[Sir William Cash]

It is terribly simple. I believe that the Government knew perfectly well that this procedure was inappropriate. Furthermore, they rammed it through the House of Commons that afternoon of 11 April after the abject surrender by the Prime Minister, and then purported to say that it was an agreement when quite obviously it was imposed on the Prime Minister by the European Union’s 27 member states.

[Mr Vaizey]

I am slightly taken aback by that statement. My hon. Friend is someone whom I have long admired and looked up to—he has been in the House for more than 30 years and is well known for his constitutional expertise—but he makes a pretty serious allegation that the Government are putting through legislation that they are constitutionally not entitled to put through. I hope that, at some point, the Minister will address that, or that my hon. Friend will have the chance to expand on his point, but it surprises me. I compare the Government’s approach to that on article 50, as I said—because a treaty was involved, they believed that they had the power to extend article 50 without recourse to Parliament, and it took a court case to illustrate that invoking article 50 fundamentally changed legislation and so Parliament’s approval was required.

Given my hon. Friend’s intervention and that he has talked about Government through Parliament, not Parliament through Government, the other point that I find surprising is that he now appears to be saying that the Government are acting in bad faith. With his overview of the evolution of our unwritten and flexible constitution, is he coming to the conclusion, perhaps, that it is better to have parliamentary government, rather than Government through Parliament? On that basis, from his own arguments, surely he has now changed his mind on the Cooper-Letwin Bill, which came about partly because of the legislature’s mistrust of the motives of the Executive. The legislature was concerned that the Executive was not putting in place the procedures needed to stop no deal, which all of us in the room can at least agree would be absolutely catastrophic for the United Kingdom—[Interruption.] I am amazed that my banal remark has provoked an intervention, but I will give way.

[Mr Bone]

We cannot have an hon. Member misrepresenting the views of other Members. No deal is the best thing for this country—my hon. Friend knows it and we all know it. Take that back, sir!

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[Mr Vaizey]

On a point of order, Sir Lindsay. I do not know whether I am allowed to make a point of order in the middle of my remarks, but is it in order for my hon. Friend, for whom I obviously have the utmost admiration—we came into the House at the same time, and have grown up and learned together—to accuse me of misrepresenting hon. Members?

[The Chair]

We are in danger of going down a route that we are not going to go down. The point is, Mr Vaizey, you gave way even though you knew exactly that Mr Bone had a slight disagreement with you. In fairness, as you entered the House together, good friends should never fall out. I also know that you want to let other Members speak, so I am sure you want to move on and to stick with what is before us.

[Mr Vaizey]

I have been speaking for about 14 minutes. I think that counts as what is known technically as “half a Cash”—a new parliamentary convention. If I get to half an hour, I will have made a “full Cash”. If I manage to make it to six o’clock, I will have done a “double Cash”. Those are the kinds of benchmarks emerging from our flexible constitution, but I will draw my remarks to a close, because I sense the mood of the Committee.

I am pleased that my hon. Friend the Member for Stone has come around to the view that Parliament should take back control. He has put it on the record that he mistrusts the Executive and their motives. He believes the Government are capable of playing fast and loose with both parliamentary procedure and even the law. Therefore, future Back-Bench Bills that emerge, be they Cooper-Letwin or the one I particularly want to introduce: a Royston-Vaizey Bill with the backing of my hon. Friend the Member for Southampton, Itchen (Royston Smith)—[Interruption.] Is my hon. Friend the hon. Member for Corby just going to make points from a sedentary position or will he make an intervention? Will he be man enough? I therefore hope the Royston-Vaizey Bill would get the support of my hon. Friend the Member for Stone.

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[The Chair]

That is also not.

[Mr Vaizey]

We are debating the constitutional propriety of the regulation. Does my hon. Friend share my concern that too many hon. Members are playing fast and loose with our constitution? Is it now a constitutional proposal that this House abides by opinion polls? If it is, the Australian Labor party would now be in government, based on the last opinion poll. If it is not, surely we need a confirmatory referendum on no deal.

[The Chair]

Totally irrelevant. Let us get back to where we were.