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

Charlie Elphicke Excerpts

Monday 20th May 2019 General Committees

[Sir William Cash]

Short of a Lazarus touch I would say the answer is yes, but I take nothing for granted in this place any more. I referred to a constitutional revolution and I fear that there are those who by one means or another will take almost any steps to overturn our established, centuries-old traditions of parliamentary government. As I have said many times in the House in the past year, we have a system of parliamentary government, and not government by Parliament.

[Charlie Elphicke (Dover) (Con)]

Just so I understand the import, if my hon. Friend succeeds in his annulment, would the United Kingdom leave the European Union immediately or would we, as a matter of international law, still be bound in to the European Union until Halloween, when this nightmare can end, so that on All Saints day we would then be free?

[Sir William Cash]

That is a wonderful thought. We have to take one step at a time. One step is to use the procedures of this House to seek an annulment, which we are entitled to seek, and to press for it. Then there is the question whether the courts would adjudicate on a case brought before them. That is yet to be decided or pursued. At the same time there is the question whether we have a vote on the Floor of the House. Although we will have a vote in this Committee, as I explained earlier, I have been advised that I am entitled to call for a vote on the Floor of the House. There may not be a debate but there can be a vote.

It will also be noticed that the end of paragraph 6.6 of the explanatory memorandum, which my hon. Friend the Under-Secretary signed off—or rammed through—at 4.15 pm on the fateful day, states that

“this legislation would come into force and take effect by reference to the current definition of ‘exit day’”—

wait for it, Sir Lindsay—namely

“11.00 p.m. on 12 April 2019.”

According to the Government’s explanatory memorandum, provisions come into effect on 12 April 2019—they are not on the fundamental issues that we are discussing today. I find that extraordinary. I should have thought that that in itself that was worthy of special attention.

The combined effect of these provisions, in my view, comes within the Standing Orders of the Joint Committee on Statutory Instruments, particularly in relation to assessing the technical qualities of the statutory instrument, and matters to which the special attention of each House would need to be drawn. Those are, first, that the statutory instrument imposes or sets the amount of a charge on the public revenue of as much as £7 billion, by reason of the extension from 29 March and/or 12 April, which would not otherwise have been borne by the United Kingdom taxpayer. There is serious and grave doubt as to whether there is power to make the statutory instrument in the form in which it has been made. Undoubtedly an unusual or unexpected use is being made of the power to make that statutory instrument. We have never seen its like before.

In all the circumstances, and bearing in mind that my early-day motion 2294 is a prayer in the form of an humble address praying that the statutory instrument be annulled, and has been signed by 83 Members of Parliament, I appeal to members of the Committee. Looking round, I see a range of people, some of whom are not members of the Committee, but who are all good, stalwart Members of Parliament. There are others who for a variety of reasons have already voted for the exit day prescribed, on 29 March, for the European Union (Notification of Withdrawal) Act 2017, for the referendum and, during a general election, on a manifesto that made it clear we were going to leave the European Union. I believe that there is every reason for this Committee to vote for this statutory instrument to be annulled.

Running parallel to this, several legal actions are pending on the question of vires and the question of whether the statutory instrument is lawful or unlawful. The courts may rule that these regulations are unlawful, or Parliament may decide that it does not want to carry on with them because it would be completely inconceivable that they go through in the circumstances I have described, given it has converted the parliamentary procedure from affirmative to annulment procedure, exploiting the Cooper-Letwin Bill—actually, that was not the case. It was done in Committee, in circumstances that I would describe as discreet to say the least—people did not catch on to the fact that it was happening. It was a very unfortunate and, I believe, retrograde step to convert this statutory instrument procedure from affirmative to annulment procedure.

My argument, in a nutshell, is simply this. My personal belief, and I believe that of the other 82 Members who signed my motion, is that this statutory instrument should be annulled. On that basis, we would have left the European Union on 12 April 2019, and a great cheer would go up in the country.