European Union (Withdrawal) (No. 5) Bill

George Eustice Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 3rd April 2019 Commons Chamber

[Chuka Umunna]

Absolutely; I was just making an observation.

Ultimately, there is a need for compromise, and we are at that stage in the process where I think that that is what the public expects. Introducing a provision within the duties in the Bill for the Government to seek an extension for the purpose of a people’s vote is, I would argue, a compromise, in part because there are ways of carrying out a people’s vote that would take account of all the different views in this House. That would involve compromise. For example, we do not like the Prime Minister’s withdrawal agreement or the framework for the future relationship, but we would be prepared not to stand in the way of them if they were put to a confirmatory vote.

I shall finish by explaining why I was so keen to crowbar these points into the debate. If we do not address these points, and if, through a backroom deal, we ignore the fact that a people’s vote is not provided for in the duties of the Bill, what are we saying to the 1 million people who marched on the streets of this city? What are we saying to the 2 million young people who now have a say on this whole issue but did not have a say three years ago? What are we saying to the 6 million people who signed a parliamentary petition arguing for a revocation, in frustration that a people’s vote might not happen? And what are we saying to the majority of people in this country who certainly did not vote for this mess? That is why it is important, if we are going to seek an extension, that we make it clear that we want to do so primarily to give those people a voice so that they get a final say on whether we go ahead with this disaster or whether we seek to change our country in a different fashion.

[George Eustice (Camborne and Redruth) (Con)]

I thank the House of Commons Clerks for the immense amount of work they have put in to ensure that we have these amendments in order and ready to be debated. This is clearly a rather unprecedented type of Bill to bring before Parliament. In common with my right hon. Friend the Member for Newbury (Richard Benyon), I have been somewhat supportive of the attempts by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) to create space on the House’s agenda to discuss indicative votes. Indeed, I have tabled amendments of my own during the debates on those votes, and I abstained on a business of the House motion to enable those votes to take place. I did not do that today, however, because like my right hon. Friend the Member for Newbury, I believe that this is a very different reason for taking control of the House.

I rise to speak to my two amendments: amendments 20 and 21. Amendment 20 seeks to add to subsection (3) of clause 1 a maximum date of 30 June 2019 to that elected by the Government. Amendment 21 would delete altogether subsections (6) and (7) of clause 1, which make provision for how the House would deal with a situation in which the European Union had rejected an approach by the Government to seek an extension and had instead made a counter-offer. My reason for tabling both those amendments is that, as a number of hon. Members have pointed out, this legislation is indeed rushed. We all have our views on the reason for that, and we are indeed at the eleventh hour of the process of leaving the European Union. That means that this is an unusual Bill, in that it seeks to bind the hands of the Government on a decision that would normally be a matter of prerogative power and a matter for the Executive to take to negotiations in international forums. Both amendments recognise the fact that the Bill has now had its Second Reading and is therefore in play, but they nevertheless seek to place a restriction on its scope and power.

While any date can be placed in a motion under clause 1(2), amendment 20 seeks a maximum of 30 June 2019, making it impossible for the Government, or someone else by amendment, to set a date beyond that. That is an important principle given the rushed nature of this legislation. It would enable both this House or the Government to seek a short extension, as the Prime Minister has already indicated she would, but it would prevent this House or the Government from electing for a long extension, which might effectively lead to the revocation of article 50.

[Hilary Benn (Leeds Central) (Lab)]

I want to pick up on a comment the hon. Gentleman made a moment ago. As I understand it, amendment 21 would delete subsections (6) and (7) and amendment 20 seeks a maximum extension length of 30 June 2019, but subsection (5) would remain. On my reading of the Bill, that would allow the House to amend the 30 June date that he seeks to insist is the latest date that the Prime Minister could put in any motion provided for under subsection (2). Will he just clarify whether that would be the result of his amendments?

[George Eustice]

Well, we have all had a little time to look at the Bill, but my understanding is that amendment 20 would insert a maximum time limit and that subsection (5) would then be subject to it. Subsection (3) makes explicit reference to subsection (2), which relates to the motion that would be before the House. I think the consequence of amendment 20 would be to include a limit of the 30 June, notwithstanding what the right hon. Gentleman says about subsection (5).

[Hilary Benn]

I am grateful to the hon. Gentleman for giving way again. That would not be my interpretation, because subsection (5) states:

“If the motion in the form set out in subsection (2) for the purposes of subsection(1) is agreed to with an amendment”,

meaning an amendment to the date that the Prime Minister has asked for, which clearly shows that the motion that the Prime Minister would move is amendable. Therefore, if the House decided to include a date different from 30 June 2019, that is what the Prime Minister would have to seek in her discussions with the European Union.

[George Eustice]

I do not agree, because subsection (3), as amended by amendment 20, would mean that it would not be possible to have a date in a motion under subsection (2) that went beyond 30 June, because subsection (3) would make it explicit that the date could be no later.

[Gareth Snell (Stoke-on-Trent Central) (Lab/Co-op)]

Without wishing to cause a row with my right hon. Friend the Member for Leeds Central (Hilary Benn), I agree with the interpretation of the hon. Member for Camborne and Redruth (George Eustice). It has always been the case in this place that a motion cannot trump legislation, so the Bill would have primacy if the motion included a date that was later than that on the face of the Bill. While I understand my right hon. Friend’s misinterpretation, I would interpret the Bill in the same way as the hon. Gentleman.

[George Eustice]

I thank the hon. Gentleman for his intervention. Subsection (3) would have to not exist for the point of the right hon. Member for Leeds Central (Hilary Benn) to be valid. Amendment 20 would amend subsection (3) and therefore change the terms under which subsection (2) could be exercised, which would in turn have a direct impact on the reading of subsection (5).

[Mrs Anne Main (St Albans) (Con)]

I want to test amendment 20 slightly, because it is not dissimilar to an amendment that has been selected in my name. How did my hon. Friend pick 30 June 2019? How does that offer clarity on what he wants to achieve?

[George Eustice]

My hon. Friend makes an important point. I think I chose that date primarily because the Prime Minister initially suggested that she may seek a short extension until, say, June. We all recognise the issues with the European elections and that if we were to go for a long extension, we would have to consider whether to fight those elections and start fielding candidates. My own view is that, by selecting 30 June as a maximum, the amendment would not preclude the Government from choosing a date of, say, 22 May, but if, for instance, it were thought necessary to go slightly longer, to go to 30 June, it would be open to all parties, both the UK Government and the European Union, to have a conversation about whether it is indeed necessary to hold European elections in this country, given it would be only a short extension for another month.

I am aware that the British civil service has considered whether, in a short-term, interim arrangement, it might be possible to send delegates from this House to represent the UK in the European Parliament.

[Mike Gapes]

Is it not a fact that the European Union has made it absolutely clear that the maximum extension available—an extension has to be agreed, unlike a revocation—is to 22 May, unless there is a long extension of potentially 21 months or more? In those circumstances, we would have to fight the European elections. If the hon. Gentleman’s proposal were agreed, it is unlikely to be accepted by the European Union, which could lead to us crashing out with no deal.

[George Eustice]

I simply say to the hon. Gentleman that amendment 20 is generous to the Government and would give them the option, should they believe it necessary under EU law, to set a date of 22 May under subsection (2), but if it were felt necessary by all parties, including the European Union, that—in order to get a withdrawal agreement over the line—an extra month would be needed beyond May, it is not beyond the wit of man to do so and to put arrangements in place so it would not be necessary for us to hold European elections in this country.

I would further contend that one of the biggest problems we have had throughout this negotiation is a tendency to get over-obsessed with the intricacies of so-called European law. My right hon. Friend the Secretary of State for Environment, Food and Rural Affairs recently told me of a meeting he had had with Ministers from other European countries, at which they made the point that, if the politics require it, it is always possible to amend or disapply European law for the short term, should it be necessary and expedient for all parties, to get a sensible resolution to a difficult crisis.

[Anna Soubry (Broxtowe) (Ind)]

With respect, I think the hon. Gentleman will find that in treaty, in international law, EU citizens are entitled to vote in European elections and to be represented in the European Parliament. Although I agree that, often, where there’s a will there’s a way, especially with the European Union, my understanding is that a change to an international treaty would be required to extend the date to 30 June without holding those elections. That is why the EU is very keen that, if the date is extended, the extension should be much longer.

[George Eustice]

I understand the right hon. Lady’s point. I simply say that Sweden, unlike Denmark and the UK, never had an opt-out from joining the euro, but it held a referendum that decided it should not join the euro. As a result, technically speaking, Sweden has been in breach of international law and European law ever since.

It is simply the case that if it were felt necessary to find a way of extending our membership to get the withdrawal agreement through—for a period of one month under amendment 20—I cannot believe it is beyond the wit of man for that to be accommodated, notwithstanding what might be said in some treaty or other. It would not be the first time that the European Union has done this.

As I pointed out earlier, if the Government believe that the treaties are, indeed, inviolable and cannot be changed, even for a period of four weeks, it would be open to them to select a date of 22 May. My amendment is generous in giving them the option, should it be possible to get agreement with the European Union and other parties, to go for a slightly later date.

[Craig Mackinlay (South Thanet) (Con)]

Let me assist my hon. Friend. This question of the date has been a vexed one. Obviously, we are not in favour of any extension, but the Commission tends to think that 22 May is a key date. I had a meeting with Guy Verhofstadt in Brussels and he tends to recognise the 30th as a cut-off date, so I think we are into a period of ambiguity and my hon. Friend is right to give this sort of latitude.

[George Eustice]

I thank my hon. Friend for all that. One problem with this whole negotiation is getting hung up over some clause or other in some EU treaty when we all—we or the EU—face a much bigger dilemma: how do we settle this political crisis? We have to consider how we find a resolution to this dispute, and achieve a reconciliation in our country and an outcome to this debate that can settle the Brexit argument and deliver the referendum result from 2016.

[David Hanson]

Does the Bill, as drafted, not give the Prime Minister—I am surprised at myself for saying this—the flexibility to discuss with Opposition parties and come to a conclusion as to the best date, in the interests of achieving the very objectives the hon. Gentleman has set?

[George Eustice]

Yes, but it does so through a Bill and it gives the Prime Minister the opportunity to make her case to Parliament, but without any constraint on that at all. Given that this is a very novel legal approach—a rushed piece of legislation, with a Bill being driven through the House in one day—we should be cautious about the scope we attach to that Bill. Attaching an ability to go for a very long extension of several years—potentially five years if Parliament decided that is what it wanted—is worthy of further deliberation.

[Seema Malhotra]

I understand the hon. Gentleman’s perspective on the politics of this and the policy outcome, which would be a limit of 30 June in terms of what this Bill could achieve. I want to clarify something with him, because my interpretation of his amendment is more in line with that of my right hon. Friend the Member for Leeds Central (Hilary Benn). Amendment 20 would put a date of

“no later than 30 June 2019”

in clause 1(3). It seems to me that that is superseded by subsection (5), and if the hon. Gentleman wanted to achieve his intended outcome he should have tabled a further amendment, proposing another date in subsection (5). He has not done that, so it would override and be able to amend a date in a motion tabled under subsection (2).

[George Eustice]

I strongly disagree with the hon. Lady’s reading, as subsection (3) sets out the terms in which anything can be offered under subsection (2) and amendment 20 places a clear limit in subsection (3) of 30 June. Subsection (5) then says:

“If the motion in the form set out in subsection (2) for the purposes of subsection (1) is agreed to with an amendment to change the date”

and so on. The issue I have is that subsection (3) says that the date has a time limit, so it would not be legally possibly under subsection (2) to have a date that contradicted the requirements set out in subsection (3). That is my contention and I disagree with the hon. Lady. If she and the right hon. Member for Leeds Central were right, they would not have had subsection (3) at all.

[Sir William Cash]

My hon. Friend made a remark that goes to the issue of the money resolution that I raised earlier. He said, and I am going to take his word for it, because no doubt as a recent former Minister he has followed this carefully, that the extension in question could be as long as five years. Let us think about that. If we multiply five by £18 billion of taxpayers’ money, which is the amount we pay every year in gross contributions to the EU, we find that it works out at £90 billion. That is his assessment, and I am simply asking him to ask the Minister vicariously whether he is aware that this Bill could cost £90 billion of taxpayers’ money? I think—I hope—the media will pick up on that.

[George Eustice]

My hon. Friend makes an important point. It is why, given the rushed nature of the Bill—we all understand the reasons for that—it is necessary to place constraints on the scope of its operation, to limit precisely the kind of financial liabilities to which he alludes.

My contention is that any suggestion of a longer extension beyond 30 June, perhaps to 21 months, two years or even longer, should surely be the subject of another Bill. After all, we have demonstrated today that we can introduce Bills of this sort in short order. If the future of this House is to be that any decisions of this sort require a Bill, and that one can be delivered with a day’s debate on the Floor of the House, surely it is right to constrain and restrict the scope of this Bill to delivering us through this immediate crisis—without doubt, this is a crisis—but nevertheless to keep open the option for the House to consider a longer extension if it wished to do so.

[Seema Malhotra]

The hon. Gentleman is being generous in accepting interventions. I fear that the interpretation of his amendment is not what he intends. This is not about the rights or wrongs of the date, but what his amendment seems to do, which is to put a cap and an end date on what the Prime Minister may put to the House, but not on an amendment to her motion that the House could seek. That is the difference between subsections (3) and (5).

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[George Eustice]

Nothing in this Bill prevents the Prime Minister from still exercising royal prerogative powers outside the Bill. Were the Government to recommend to the House a decision to go for a longer extension, and they had a clear rationale for doing so, I still think that they would be able to do so outside the scope of the Bill. What the Bill does not do is say that the prerogative powers of the Executive are vanquished in all areas for all time. Instead, it seeks to establish an ability for the House, on this particular narrow issue, to table a motion. Nothing in the Bill constrains the Government’s ability still to exercise prerogative powers; it clearly requires them to exercise those prerogative powers in accordance with the Bill, if they are indeed exercised in response to motions passed by this House, so I do not accept the hon. Lady’s point.

[Michael Tomlinson]

I have been wondering about that. My hon. Friend says that the motion in effect will mandate, but does he agree with my reading, which is that under subsection (2) the House simply agrees that the Prime Minister is seeking an extension? It does not mandate or order it. Does that not again make nonsense of swift drafting on such an important issue?

[George Eustice]

There will always be issues when legislation of this sort is drafted. This is unorthodox legislation, an unusual type of Bill, and that is why the two amendments I tabled seek to place some restrictions on the scope in which the powers may be exercised.

Amendment 21 would simply delete subsections (6) and (7) altogether.

[Sir William Cash]

On a point of order, Dame Rosie. Given the complete rubbish that the Bill contains, is it possible for us to find out who drafted it? Was it drafted by parliamentary counsel or by some ad hoc person? That is quite important.

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[The Second Deputy Chairman]

I think the hon. Gentleman is expressing a debatable opinion about the Bill. The Public Bill Office is always available to advise Members on the drafting of the Bill. I think we will leave it there.

[George Eustice]

I put on record my enormous respect for my right hon. Friend the Member for West Dorset. I appreciate that through all the measures that he has tabled, he is trying to deal with the incredibly difficult and complex situation that the country faces. From the time I was first involved with the party, I have worked with him closely. He has been the anchor-man for several leaderships in the Conservative party. Whatever differences Members may have on this issue, he deserves the respect of all Conservative Members.

Amendment 21 would delete subsections (6) and (7) of clause 1, which provide for the House to consider a counter-offer from the European Union. If the Prime Minister were to seek an extension until 30 June 2019 and the European Union made a counter-offer, the question would arise of what should happen next. My contention is that at that point, the Government should bring their own proposals to the House. If the House then felt that it wanted to bind the Government’s hands on what should happen next, that would surely be a matter for a future Bill, given that we have today demonstrated our ability to pass legislation in a speedy and efficient fashion.

[Sir Oliver Letwin]

I am grateful for my hon. Friend’s kind remarks, but I wonder whether he means to remove subsections (6) and (7). If we did not pass the Bill and the Prime Minister went to the European Council, as my hon. Friend envisages, with a request for something less than 30 June, and it said, which I think would not suit him, and might well not suit me, that there should be a 21-month extension, there would be nothing to prevent the Prime Minister accepting that, using the prerogative power. It would of course be necessary, as things stand, for the House to agree a statutory instrument changing the exit date in the European Union (Withdrawal) Act 2018 to reconcile UK law with the position in international law, but the House would not have much choice about that, because we would be out of kilter with international law if we did not make the change, as we discovered when the original SI was made.

Of course, when the Prime Minister made the original application, she did not seek the approval of the House; she was able to make it, perfectly properly, under the prerogative power. If my hon. Friend removes subsections (6) and (7), the effect is not, as he might imagine, to stop the Prime Minister doing something that he would regard as a mischief—namely accepting then and there a very long extension—but to continue to enable her to do that.

[George Eustice]

I am sure that my right hon. Friend is aware of the reason that I resigned from the Government, which is that I genuinely believe it is right that the Executive should, as a general rule, retain control of these types of decisions. If we got into a position where 650 or so MPs here were trying to participate in a negotiation with the European Union, I would say we were in quite a bit of trouble.

This is a question of the balance of risk. My view is that, confronted with an unpalatable decision—a demand for, say, a two-year extension from the European Union as the only deal on offer—I would still rather take my chances with the Cabinet to show some backbone than take the risk with this House, and I say that having resigned from the Government. That is as simple and as honest as I can be.

[Sir Oliver Letwin]

In that case, I withdraw what I was saying in the sense that my hon. Friend would be achieving exactly what he wants; he would be leaving the Prime Minister with untrammelled prerogative power, and of course that is a perfectly possible choice to make.

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[George Eustice]

It is very good that my right hon. Friend and I agree on something. If we are not careful, I fear that what will actually happen is that the European Union will make appalling demands for financial contributions and a long extension, and, when it came down to it, this House would not have the courage to resist, having already indicated that it lacks the courage to leave without a deal, which I believe was a mistake. I did not want to leave with no deal—I would like there to be an orderly withdrawal with an agreement—but I believe that taking no deal off the table would fundamentally undermine our position.

[Michael Tomlinson]

Following on from the intervention by my constituency neighbour, my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), is it not the case that in any event, notwithstanding whatever is in the Bill, the Prime Minister would still retain the prerogative power? The Bill may seek that the Prime Minister asks for a certain date, but in fact there is nothing preventing her from adopting a parallel track or making a third request. Even if this Bill is passed unamended, which my right hon. Friend clearly does not want to happen, the Prime Minister could still chart her own course.

[George Eustice]

My hon. Friend makes a good point, but the way in which this Bill is crafted—linking back to the European Union (Withdrawal) Act, as it does in clause 1(2)—means that it does have legal force. Therefore, it does bind the House and constrain the ability of the Government to exercise those prerogative powers. That is why the two amendments that I have tabled would accept that the Bill has passed Second Reading—and, therefore, that this House has voted to constrain those prerogative powers—but would nevertheless place constraints on the scope within which the House can exercise those powers. My hon. Friend is absolutely right that, were amendments 20 and 21 agreed to, it would still be open to the Government to use their prerogative powers to make agreements beyond that scope.

[Sir Oliver Letwin]

I apologise for continuing a triangular discussion through my hon. Friend, but in response to the point made by my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson), I think that the answer is actually no. The prerogative power is subject to statutory limitation. This Bill would limit statutorily the prerogative power in that respect. We can know that for sure because that is the view of the Government lawyers. Government amendment 22 seeks to reintroduce the prerogative power because the Government recognise—this is the discussion that I have been having with the Government during the course of the day—that the Bill currently limits the prerogative power.

There is a choice for the House. We may obviously take different views about how to make that choice, but just as a matter of plain fact, there is a choice to be made. One option is the position advocated by my hon. Friend the Member for Camborne and Redruth (George Eustice), which is one of reinstating the full prerogative power. That could otherwise be achieved by Government amendment 22, so there are two ways to do that. The other option, which I would prefer, is to limit that prerogative power by statute so that the House has the ability to constrain, to some degree, what the Prime Minister accepts by way of an extension from the EU.

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[George Eustice]

I think my right hon. Friend’s comments were directed at my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson), rather than directly at me, so I will not become engaged in this discussion.

Regarding the provisions for subsections (6) and (7), the question still remains of what would happen if there were a counter-offer from the European Union. My contention is that that should then be a matter for the Government to bring before the House in a statement, to be challenged in the usual way. If at that point the House was unsatisfied with the Government’s proposal, it would still be open to it, through an initiative of the sort we have seen today, to introduce a Bill placing a further constraint on the Government, perhaps by requiring them to accept a counter-offer, for instance of a two-year extension, so that we could have a fuller, longer and perhaps more considered debate on what in my view would be a really big decision, because we would have gone five years since the first referendum and achieved nothing. The risk of not leaving the European Union at all and ending up arguing about a second referendum would grow. I believe that opting for such a lengthy extension would a very big decision, and one that would warrant a separate Bill with a separate, much longer and much more detailed discussion.