Business of the House

Charlie Elphicke Excerpts

Wednesday 3rd April 2019 Commons Chamber

[Sir Oliver Letwin (West Dorset) (Con)]

I beg to move,

That—

(1) At today’s sitting-

(a) the order of the House of 1 April (Business of the House) shall apply as if, at the end of paragraph (2)(a), there were inserted “and then to proceedings on the European Union (Withdrawal) (No. 5) Bill”;

(b) any proceedings governed by that order as amended or this order may be proceeded with until any hour, though opposed, and shall not be interrupted;

(c) immediately upon the conclusion of proceedings under the order of 1 April, the Speaker shall call a Member to move the motion that the European Union (Withdrawal) (No.5) Bill be now read a second time;

(d) the Speaker may not propose the question on the previous question, and may not put any question under Standing Order No. 36 (Closure of debate) or Standing Order No. 163 (Motion to sit in private);

(e) any proceedings interrupted or superseded by this order may be resumed or (as the case may be) entered upon and proceeded with after the moment of interruption.

(2) In respect of the European Union (Withdrawal) (No. 5) Bill, notices of Amendments, new Clauses and new Schedules to be moved in Committee may be accepted by the Clerks at the Table before the Bill has been read a second time.

(3) The provisions of this order shall apply to and in connection with the proceedings on the European Union (Withdrawal) (No. 5) Bill.

Timetable for the Bill today

(4) (a) Proceedings on Second Reading and in Committee of the whole House, any proceedings on Consideration and proceedings up to and including Third Reading shall be taken at the sitting today in accordance with this Order.

(b) Proceedings on Second Reading shall be brought to a conclusion (so far as not previously concluded) at 7.00 pm.

(c) Proceedings in Committee of the whole House, any proceedings on Consideration and proceedings up to and including Third Reading shall be brought to a conclusion (so far as not previously concluded) at 10.00 pm.

Timing of proceedings and Questions to be put today

(5) When the Bill has been read a second time:

(a) it shall, notwithstanding Standing Order No. 63 (Committal of bills not subject to a programme order), stand committed to a Committee of the whole House without any Question being put;

(b) the Speaker shall leave the Chair whether or not notice of an Instruction has been given.

(6) (a) On the conclusion of proceedings in Committee of the whole House, the Chairman shall report the Bill to the House without putting any Question.

(b) If the Bill is reported with amendments, the House shall proceed to consider the Bill as amended without any Question being put.

(7) For the purpose of bringing any proceedings to a conclusion in accordance with paragraph (4), the Chairman or Speaker shall forthwith put the following Questions in the same order as they would fall to be put if this Order did not apply–

(a) any Question already proposed from the Chair;

(b) any Question necessary to bring to a decision a Question so proposed;

(c) the Question on any amendment, new clause or new schedule selected by the Chair or Speaker for separate decision;

(d) the Question on any amendment moved or Motion made by a designated Member;

(e) any other Question necessary for the disposal of the business to be concluded; and shall not put any other Questions, other than the Question on any motion described in paragraph (16) of this Order.

(8) On a Motion made for a new Clause or a new Schedule, the Chairman or Speaker shall put only the Question that the Clause or Schedule be added to the Bill.

Consideration of Lords Amendments and Messages on a subsequent day

(9) If any message on the Bill (other than a message that the House of Lords agrees with the Bill without amendment or agrees with any message from this House) is expected from the House of Lords on any future sitting day, the House shall not adjourn until that message has been received and any proceedings under paragraph (10) have been concluded.

(10) On any day on which such a message is received, if a designated Member indicates to the Speaker an intention to proceed to consider that message—

(a) notwithstanding Standing Order No. 14(1) (which provides that government business shall have precedence at every sitting save as provided in that order), any Lords Amendments to the Bill or any further Message from the Lords on the Bill may be considered forthwith without any Question being put; and any proceedings interrupted for that purpose shall be suspended accordingly;

(b) proceedings on consideration of Lords Amendments or on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement; and any proceedings suspended under subparagraph (a) shall thereupon be resumed;

(c) the Speaker may not propose the question on the previous question, and may not put any question under Standing Order No. 36 (Closure of debate) or Standing Order No. 163 (Motion to sit in private).

(11) Paragraphs (2) to (7) of Standing Order No. 83F (Programme orders: conclusion of proceedings on consideration of Lords amendments) apply for the purposes of bringing any proceedings on consideration of Lords Amendments to a conclusion as if:

(a) any reference to a Minister of the Crown were a reference to a designated Member;

(b) after paragraph (4)(a) there is inserted –

“(aa) the question on any amendment or motion selected by the Speaker for separate decision;”.

(12) Paragraphs (2) to (5) of Standing Order No. 83G (Programme orders: conclusion of proceedings on further messages from the Lords) apply for the purposes of bringing any proceedings on consideration of a Lords Message to a conclusion as if:

(a) any reference to a Minister of the Crown were a reference to a designated Member;

(b) in paragraph (5), the words “subject to paragraphs (6) and (7)” were omitted.

Reasons Committee

(13) Paragraphs (2) to (6) of Standing Order No. 83H (Programme orders: reasons committee) apply in relation to any committee to be appointed to draw up reasons after proceedings have been brought to a conclusion in accordance with this Order as if any reference to a Minister of the Crown were a reference to a designated Member.

Miscellaneous

(14) Standing Order No. 82 (Business Committee) shall not apply in relation to any proceedings on the Bill to which this Order applies.

(15) No Motion shall be made, except by a designated Member, to alter the order in which any proceedings on the Bill are taken, to recommit the Bill or to vary or supplement the provisions of this Order.

(16) (a) No dilatory Motion shall be made in relation to proceedings on the Bill to which this Order applies except by a designated Member.

(b) The Question on any such Motion shall be put forthwith.

(17) Proceedings to which this Order applies shall not be interrupted under any Standing Order relating to the sittings of the House.

(18) No private business may be considered at any sitting to which the provisions of this order apply.

(19) In this Order, “a designated Member” means –

(a) the Member in charge of the Bill; and

(b) any other Member backing the Bill and acting on behalf of that Member.

For the avoidance of doubt, I should begin by saying that it is the feeling of both the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) and me that we should accept amendment (a), which provides for the possibility of indicative votes on Monday, should that be necessary in the light of discussions between those on the Front Benches between now and then, which I strongly welcome.

This House has debated a number of measures in the past few weeks about the Order Paper and Standing Orders, and who controls them. I am sure that some of my right hon. and hon. Friends, some of whom have made learned and important speeches about the subject already, will wish to raise those issues again. Of course, I am happy to respond to any points made in the course of my remarks about that matter, but I do not intend to dwell on it all over again, because I have more or less said what I had to say about that subject. I just want to refer to the substance of the business of the House motion.

The first question that needs to be addressed is: why bother with this business of the House motion and, therefore, why bother at this point to consider the Bill that stands in the name of the right hon. Member for Normanton, Pontefract and Castleford, of which I and others are backers, given that the Government have already said they are going to seek an extension, which, again, is an enormously welcome development? I say to my right hon. and hon. Friends on the Front Bench that it is not that I have any doubt that the Government will now wish to seek an extension and avoid the cliff edge of a no-deal exit on 12 April, but rather that there is concern that there should be a transparent and orderly statutory process or framework within which the House has an opportunity to consider the length of the extension that is asked for and to provide the Prime Minister with backing for her request to the EU in an unequivocal and transparent way. That is the purpose of ensuring that we consider the Bill that follows this business of this House motion, and therefore the main purpose of the business of the House motion is simply to provide for the proceedings on that Bill.

The second question I wish to address is that of the speed with which we are considering the Bill. I would much prefer to have had considerably longer set out in the business of the House motion for consideration of the implications of the Bill, because, as right hon. and hon. Members will see when it is debated, although the Bill is short, it is nevertheless significant and there are significant details associated with it. It would have been nice to have a considerable time in which to debate and consider it over a number of days, as is normal. Unfortunately, there is no point in legislating if that which we are legislating about has occurred before the time when the legislation would be relevant.

[Charlie Elphicke (Dover) (Con)]

I am listening very carefully. My right hon. Friend said that the emergency legislation process is necessary but, as the whole House knows, the reality is that the Prime Minister has already said that she is minded to seek an article 50 extension. I fail to see what the emergency he is claiming is, considering that his Bill is completely and utterly unnecessary.

[Sir Oliver Letwin]

I am grateful to my hon. Friend for his remark that he was listening carefully to what I said. In the preceding section of what I was saying, I explained the reason for the Bill, which is to provide a transparent means of ensuring that the precise details of the extension that the Government seek are brought before the House. That would have been necessary anyway. My view is that it would be a good proceeding for our Parliament to have the opportunity to scrutinise and debate the extension proposed by the Government. I am now explaining not why it is an emergency but why it is a quick process. The reason for it being a quick process is that, if we believe it to be a necessary one, it would obviously be redundant if done after the event to which it refers.

[Charlie Elphicke]

As my right hon. Friend will be aware, the Prime Minister has already sought an article 50 extension. She came to this House to explain it and, to my mind, I cannot see how she has not been transparent already. What extra transparency does he think is necessary that she did not provide with the extension that she has already sought?

[Sir Oliver Letwin]

That is an instructive example. The last time around, when as my hon. Friend rightly says the Prime Minister sought an extension, in point of fact, she sought a double extension in a sense, because she then brought before the House a statutory instrument which, although not much considered, provided both for 12 April and a later date to be included in the adjusted domestic law, in the European Union (Withdrawal) Act 2018. There was, however, no direct discussion in this House of the validity or otherwise of the period for which she sought the extension. I do not complain about that because, as things then stood and as they stand today before the passage of this business of the House motion and the Bill, if they do pass this House, the Prime Minister has an absolute right to seek those extensions—without consulting anyone, actually. There is absolutely no need for her to do so, because it is a prerogative power. She might feel it necessary to mention something to Her Majesty, but otherwise there is no reason for the Prime Minister to tell anyone.

The Bill will provide for a transparent process not for consultation but for approval by the House of the application that the Prime Minister makes to the EU. I believe, as do others who support the Bill, that that is appropriate. Of course, one can have an argument about that—my hon. Friend the Member for Dover (Charlie Elphicke) might well disagree—but that is the purpose of the Bill, so I do not think one can deny that, from my point of view or that of someone who shares it, the Bill is therefore necessary.

--- Later in debate ---

[Sir Oliver Letwin]

I am grateful to the hon. Gentleman for bringing us back to the business of the House motion, which has not had much of an airing yet. The paragraph to which he refers is one of a large number of provisions in the motion that are collectively designed to ensure that the short time at our disposal is not ill used on procedural devices and dilatory actions, and to ensure that we can spend the time talking about the Bill, rather than whether we should talk about the Bill, whether we should have talked about some other Bill, whether we should talk about it on some other day, whether we should sit in private, whether we should adjourn, or any other matter of not the slightest significance that might be raised to delay our talking about the Bill—by, incidentally, those who may also complain that we do not have enough time to talk about the Bill. I think it is legitimate to close off those things.

I pay enormous tribute to the brilliance and incredible hard work of the Clerks, on which those of us engaged in this have called repeatedly. The quality of their advice, and their sustained effort, is beyond compare. It is a really remarkable performance by the highest class of professional.

I shall mention briefly the other features of the motion. As well as provisions on timing, which take us up to paragraph (8), the motion provides for the House of Lords to bring back messages, should it seek to amend the Bill. In fact, unless the Government choose to move amendments today on the detail, in order to increase the Government’s flexibility, we will need, I think, to accept some amendments from the House of Lords—a punctilious House that will, I am sure, want to tighten the Bill. Paragraphs (9) to (12) allow that to happen in an expeditious way, and are otherwise uncontroversial, as is paragraph (13).

[Charlie Elphicke]

The whole House can see that my right hon. Friend has given himself the style, if not the title, of leader of this House in his actions today, but what is his plan for making sure that his Bill, should it pass through this House, is discussed in the House of Lords, and that any messages are further debated in that House?

--- Later in debate ---

[Valerie Vaz]

I think we can wait for the hon. Gentleman’s lecture later.

The motion allows for the Bill to be considered and asks the Prime Minister to make a proposal to be considered by the House the day after enactment. As with every Bill, a helpful explanatory note to the Bill is available in the Vote Office that describes each clause and exactly what the Prime Minister has to do.

[Charlie Elphicke]

Will the hon. Lady give way?

[Valerie Vaz]

I am nearly finished.

We are trying to help the Government. I am pleased that the amendment tabled by my right hon. Friend the Member for Leeds Central (Hilary Benn) has been selected. Her Majesty’s Opposition support the motion and want to find a way forward. Our democracy demands it.

--- Later in debate ---

[Pete Wishart]

Absolutely. My hon. Friend makes a very good point. This does present such a precedent, and I hope all parties across the House will make use of it and ensure that Bills are passed on Opposition days. This is a new way of doing things that should be looked on positively. I am really very surprised that the “take back controllers” cannot see the opportunities presented to this House to, in effect, take back control in this Parliament.

Doing this with a Bill for the first time ever is really interesting. I have to say to the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) that I think there are deficiencies in the Bill. Earlier, I called it a bit of a dog’s breakfast, but it is the only meal on the menu, so we have to take advantage of the opportunity that has been presented. What it does is ensure that we do not leave next week without a deal. It attempts to ensure that there is at least some sort of way forward in trying to renegotiate with Europe, and it will oblige the Prime Minister to come back and give updates about the progress she is making.

I think the right hon. Member for West Dorset (Sir Oliver Letwin) said, absolutely correctly, that if we do not do this we will have to leave it to the Prime Minister and take it on trust. What we have seen from this Government already is that they contemptuously ignore outcomes in this House repeatedly, and again and again. All of a sudden, however, we are supposed to trust them with the process of doing what they say they are going to do.

[Charlie Elphicke]

The hon. Gentleman says we would have to leave this as a matter of trust to the Prime Minister. The reality is that, if he had actually bothered to read it, he would see that the Bill simply makes a request to her, and she could completely ignore it. That is why this Bill is so pointless, and why it is an abuse of this House to be using the emergency legislation method. The precedent, which he acknowledges will be created, will be visited most dearly and deeply on Opposition Members when they find themselves seeking time but a Government cite this precedent, which they themselves have adopted, as to why they should not have it.

[Pete Wishart]

That sounds like some sort of admission that the Conservatives are on their way out and they are expecting to change places. God help us if what the hon. Gentleman says was ever actually the case. There are in fact lots of deficiencies in the Bill—I am quite happy to concede that—but what he presented is not one of them. The Bill explicitly mandates the Prime Minister to come back to ensure that there is a statement about any conversations she has with the EU. I suggest that the hon. Gentleman should perhaps read the Bill before he intervenes again.

This is a day for precedent, isn’t it? As another part of the breakthrough in the Brexit process, we now have the Prime Minister sitting down exclusively with the Leader of the Opposition. This idea to try to share Brexit with the Opposition is a huge elephant trap that has been set for the Leader of the Opposition, and he has gone wandering into it with his size 12 shoes, like some sort of hairy mammoth. That is exactly what the Opposition are doing today, and it will be fascinating. Today, remainer meets leaver across the table to discuss Brexit—a remainer whose party is a bunch of leavers and a leaver whose party is a bunch of remainers—so this will be fascinating. We are looking forward to the outcome of this particular meeting, and I think the whole House will be thoroughly entertained by the outcome. For Scottish National party Members, this looks a bit like Better Together 2.0: the sequel. Here are Labour and the Conservatives sitting down to conspire to take Scotland out of Europe against its will. That is exactly what will be done, or it looks very much like that to us on these Benches.

--- Later in debate ---

[Charlie Elphicke (Dover) (Con)]

I rise to oppose the business motion. I want to draw out some of the points I made to my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) as the key reasons for my opposing it.

The first issue is that the Bill is so obviously entirely unnecessary, because of the commitment of the Prime Minister, given on TV last night to the entire nation, to the effect that she was minded to seek an article 50 extension in any event as one of the possibilities, and that she did not want us to leave without a deal. In those circumstances, it is entirely obvious to me that this Bill is completely otiose.

I would go further. When I pressed my right hon. Friend, he said that this was a matter of transparency and that the House should have a say. I suspect, however, that he would not be able to cite one example of transparency that the Prime Minister has not already provided to the House. In response to my intervention, my right hon. Friend could not provide a realistic and respectable reason that the Bill was needed. I put it to the House that that is because he tabled the motion and the Bill before the Prime Minister made her statement. The Prime Minister having made her statement, I would hope that my right hon. Friend has the grace to do the honourable thing and withdraw them.

[Sir Oliver Letwin]

My hon. Friend is right to say that the Bill has a long genesis; it is the fifth of its kind, and it goes back to long before the Prime Minister’s statement. Of course, we had the opportunity, once she had made the statement, to make a judgment about whether to press the motion and the Bill, and we judged that we should. What does my hon. Friend think there is in the Prime Minister’s statement—I do not criticise her for this, because I think her intention is clear—to prevent her from making a decision for which she does not have the House’s approval on the length of the extension that she seeks?

[Charlie Elphicke]

My answer to that is simple. The Prime Minister has already given a commitment, and she does not need an Act of Parliament to reinforce the commitment that she has made. This is a classic case of putting on boilerplate for no purpose whatsoever.

[Sir Oliver Letwin]

My hon. Friend is right that the Prime Minister has made a commitment to seek an extension, and I trust her on that. However, she has not made a commitment to a given length of extension, and she has not made a commitment to seek the approval of the House for the length of the extension. Therefore, I do not see how my hon. Friend can argue that the Bill does not do something beyond the Prime Minister’s statement.

[Charlie Elphicke]

My response to that is that in clause 1(2) there are square brackets instead of a length for the extension. It seems to me that the promoter and sponsors of the Bill could not decide on the length of the extension, so they decided to cover up their own disagreement by putting the matter in square brackets. The Prime Minister has said that she is not minded to leave without a deal, and that she is minded to seek an extension. Although I do not agree with that view, I know that my right hon. Friend does, so he will be pleased about the position that she is taking. He should quit while he is ahead, pocket her commitment and allow the rest of us to move on.

I will come to the other great danger of what my right hon. Friend is doing, which is the danger to our constitution. Our constitution in this United Kingdom has always been unwritten and determined largely by convention. Unlike the United States constitution, which is written and therefore quite hard to change, ours has a long tradition of bending like a reed in the wind. The landscape shifts when events shift. That is a great strength of our constitution, but it is also a great weakness, because constitutional innovations such as this have unintended consequences.

I also made a point to the hon. Member for Perth and North Perthshire (Pete Wishart) about the risks. The Opposition say that we can use emergency legislation for a matter such as this—even though this Bill, as I have said, is completely unnecessary—and it has to be done in an awful hurry. If that is the case, what is to prevent the Government from asking, “Why do we have Committees of the whole House for Finance Bills? Why don’t we just do away with them? In fact, why do we have a Committee at all on the Finance Bill? Why don’t we just pass the Finance Bill in a day?”

My right hon. Friend the Member for West Dorset has pointed the way to an innovation that could well be used by the Government to curtail debate in this House, and I oppose it for that reason. Today, I may be speaking from the Government Benches, but on another day I might be speaking from the Opposition Benches and wanting to make sure that there was proper scrutiny. The Government of the day should have scrutiny from the Opposition. They should not be afraid of that, but this precedent, which—let us be clear—is largely being created by the Opposition, is a grave threat.

Let us also be clear about the numbers who are backing this Bill. This is not some Conservative innovation. It is an innovation by the Scottish National party; by the new party, which is frightened of going to the polls and facing the people; by the Labour party; and by a handful of Conservatives. It is really a Labour-dominated move to try to seize control of the legislative timetable. I say to Labour and all Opposition parties that sauce for the gander is sauce for the goose. The precedent that they are creating means that this kind of emergency legislation procedure could well be used for routine business. They are playing with constitutional fire and they will live to regret it.

Our rules have always given great latitude to the Chair of our illustrious institution. I have always been a huge supporter of yours, Mr Speaker, but what if a future Government came along with a larger majority and said, “Actually, we are not so sure about the discretion of the Chair in choosing amendments and motions and enabling the business of the House, as we have long allowed our Chair to under Standing Orders.”? Colleagues know that in other Parliaments around the world, including in the Commonwealth, that same discretion that we afford is not afforded to their Chairs.

Innovations and situations such as this may give people pause for thought, including the Procedure Committee in the House of Commons, and mean that they start looking at that and saying, “Maybe we should allow less discretion.” I think that we would be the poorer for that, but that is where this leads. We need to be very honest with ourselves about the risks and unintended consequences of doing such things. We need to make sure that we give voice to the minority opinion in this House, give time in the House and do not rush through legislation in this way, using emergency procedures when there is no emergency and no necessity, as I have pointed out.

There is another issue: what if we end up with a written constitution as a result of this? We would be the poorer for that because we would be less flexible. We also have to remember, when we look at constitutional innovations, that there was a time—about two centuries ago—when this House did not have the Government controlling this House’s business. In that time there was effectively the separation of powers and there were vetoes of legislation by the Government of the day as a mechanism for putting in blocks. As we know, those exist in the United States today. The President of the United States can just put a Bill in his pocket—that is a pocket veto—or he can formally veto Bills of Congress. If we go down this route where we try to seize the Order Paper from the Government of the day, we are heading constitutionally and logically towards a separation of powers, which in turn means that our old mechanisms, last used for the Scottish Militia Bill, come back into play and become constitutional again in reaction to the unconstitutional, or constitutional, innovations—people can choose that as they will—that we are seeing in this House.

Situations that people are talking about, such as where Parliament is prorogued or where there are vetoes and in relation to other mechanisms that exist on the separation of powers, is where this leads. That is why I am very cautious and urge the House not to pass this business motion. That is not simply because it is not necessary for this Bill, not simply because this is an abuse of the emergency legislation procedure, and not simply because it can be used against the Opposition, and I fear will be for the rest of this Parliament. Every time that they whinge about a programme motion and say that they do not have enough time, or say they want protected time, the Government will be within their rights to cite the precedent that they have created. That is why I urge colleagues to oppose this motion, because it will not lead to any good for either side of this House.