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

Mark Francois Excerpts

Monday 20th May 2019 General Committees

[Sir William Cash]

It is actually horror-in-wonderland politics. In our consideration—the House of Commons was given only one hour to consider Lords amendments—I tabled an amendment that would have prohibited our taking part in the European elections. To my astonishment, despite the fact that that was Government policy, I was informed that No. 10 had given instructions to oppose my amendment. It is unimaginable, but that is exactly what happened.

[Mr Mark Francois (Rayleigh and Wickford) (Con)]

It appears that, owing to some incredible administrative oversight within the Whips Office, I was not put on this Committee. Has my hon. Friend seen—[Interruption.] Thank you, Sir Lindsay; at least somebody has put me on the Committee. Has my hon. Friend seen the “Behind Closed Doors” documentary, which showed in graphic detail the utter contempt with which this House and this nation are regarded by our European partners? Does he wish that everybody in the United Kingdom could see this SI, so that they could see how it is as much a rant as that documentary?

[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.

[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.

[Mr Francois]

Will my hon. Friend confirm that, in effect, the rancid Cooper-Boles-Letwin Act is now spent and has no further legal effect of any kind that would impede us from leaving the European Union on Halloween?

[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.

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[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 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?

[The Chair]

Order.

[Mr Francois]

He wanted a robust debate.

[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.

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[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—

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[Matthew Pennycook]

I am going to make some progress.

As I said, these are relatively uncontroversial regulations that should be supported. That is why the Opposition take no issue with them. I do, however, have one question for the Minister. As he will know, and as the hon. Member for Stone said, the regulations differ from their predecessor in providing only for an extension until 31 October. The predecessor regulations sought to anticipate two different exit day scenarios: 22 May if the withdrawal agreement was approved before 29 March; or 12 April if it was not. By providing only for an extension until 31 October, the regulations signal a tacit acceptance of what we all suspected to be the case at the time: we would have to participate in the European elections.

More than that, however, in providing only for that single date, the regulations do not cater for the possibility that the withdrawal agreement might still be ratified before 31 October—something that, were it to occur, would mean, through the agreement between the UK and the European Council, that exit day would have to be changed to 1 June, 1 July, 1 August, 1 September or 1 October. Therefore, could the Minister tell the Committee—I do think the Committee should have an answer to this—what the Government will do or plan to do in the admittedly unlikely scenario that the withdrawal agreement is approved before 31 October? Would a further statutory instrument be introduced to change exit day yet again, or would the Government seek to use the withdrawal agreement Bill to modify more comprehensively the provisions connected with exit day? I look forward to the Minister’s answer—

[Mr Francois]

Will the hon. Gentleman give way before he finishes?

[Matthew Pennycook]

I will not give way; I have just come to a conclusion.

[Simon Hoare (North Dorset) (Con)]

Sometimes it is quite hard to refer to people on our own side as honourable or right honourable Friends. For me, that is the case today. I am not going to name him, but I do curse the colleague who sent me an email to say, “Is there any chance you could sub on the statutory instrument this afternoon?” I actually had quite a quiet afternoon planned, and yet here I am—he will owe me a very large drink afterwards.

[Mr Francois]

Name him!

[Simon Hoare]

I am not going to name him, although I have to say, given the choice of topics on offer, I rather wish I were on the Floor of the House instead of here.

May I say this in answer to one point that my right hon. Friend the Member for Wantage has made? He has suggested one Bill that could come forward. Might I suggest that a Bill co-sponsored by my hon. Friend the Member for Stone and me would, given our surnames, not actually be incredibly helpful?

I think we should take some heart—in fact, quite a lot of heart—from the fact that my hon. Friend, and indeed friend, the Member for Braintree is the Minister who has put his name to this legislation. My hon. Friend campaigned on a different side from me in the referendum, but we are both democrats and, I believe, firmly rooted in a pragmatic tradition of politics, which is what is required. I agree with the Opposition Front-Bench spokesman, the hon. Member for Greenwich and Woolwich, that this is something that really should not be raising the temperature. It is a necessity; it is not a desirable necessity, but it is one that we had to face up to.

Like all of us in the House—well, increasingly I am beginning to doubt whether use of the word “all” is pertinent. I think that most of us in the House are, in essence, democrats who believe in living by the decision of the British people. We asked the British people for their decision back in June 2016. They arrived at a decision that I did not support but am pledged to deliver. I have taken the view—colleagues will take a different view—that the best way of delivering that is through the orderly mechanism of a deal, the content of which we can, of course, debate. That is just my view. I could be wrong and—I am picking at random—my right hon. Friend the Member for Wokingham could be right that, in fact, it is immaterial and leaving without a deal will—

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[Simon Hoare]

I am not entirely sure how, based on what I just said, the hon. Lady could have arrived at the statement that she made in that intervention. I did not speak with any degree of certainty; I merely said that, having looked at everything, I had come to a view. If she had listened to what I said—I say this to her respectfully—she would have heard me say that my right hon. Friend the Member for Wokingham could be right. At the moment, nobody is entirely sure. We could both be wrong. The truth could be somewhere in between. Unlike some in this debate, I am not claiming any golden insight—some sort of crystal ball that I can gaze at and that allows me to predict with absolute certainty. I think that all of us, frankly, are trying to find our way in a chapter in our nation’s history for which there is no precedent and no other example to which we can turn. We are all trying to find our way. WTO might be the best thing since sliced bread, if sliced bread is your thing, but it might not be; I do not know. I do not think it is, which is why I have concluded on behalf of my constituents that we should leave with a deal. I do not claim the certainty that the hon. Lady suggests.

[Mr Francois]

My hon. Friend makes the very reasonable point that, in his opinion, no deal is not the best way forward, and we respect him for his honesty. However, does he accept that, in a ComRes poll at the weekend, 63% of the public said that they do think it is the best way forward—they want to leave as soon as possible, even with no deal? It might not be his view, but it is now the view of almost two thirds of the British public.

[The Chair]

I do not want to drift too far. The point has been made, but I do not want us to get into opinion polls on where we may or may not be.

[Mr Francois]

But it is such a good poll.

[The Chair]

You have got that on the record; do not over-milk it.

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[James Cleverly]

I completely understand. I have been knocking on doors, as I am sure my right hon. Friend has, and I am well aware of the anger—I will not be euphemistic and use the word “frustration”—out there about the fact that Brexit has not yet been delivered. Again, I will come on to that specific point.

I will have to be ungenerous with regard to further interventions, because I am conscious—

[Mr Francois]

Will the Minister give way?

[Vicky Ford (Chelmsford) (Con)]

Will the Minister give way?

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[James Cleverly]

I would have to refer to Hansard to make a decisive comment on that. I can only assume from the certainty with which my hon. Friend delivered that intervention that he knows the chronology. The main point is that the Prime Minister was required to act by an Act of Parliament, and as my hon. Friend the Member for Stone highlights, we all—and that includes the Government—have to act within the law.

The agreement reached with the European Council was for an extension until 31 October 2019, but with the important caveat—this was the point made by my hon. Friend the Member for Chelmsford—that it could be ended earlier if the withdrawal agreement is ratified prior to that date. That was agreed by the UK and the EU and the new date of 31 October 2019 was fixed in international law in the early hours of 11 April.

[Mr Francois]

Will the Minister confirm two things? The first is that we cannot extend article 50 again unless the UK Government consent—in other words, that the EU cannot extend it again against our will. Secondly, will he confirm that no indicative vote in this House would stop us leaving on 31 October and that if we do not ask to extend, the only thing that would legally stop us leaving on that date is an Act of Parliament? Is that correct?

[James Cleverly]

The Government have made it clear that the default position if no other proactive measure is taken by the House is that we leave on 31 October, without an agreement if that is the case. That is the default position and that is why the Government maintain preparations for what we call a no-deal Brexit on 31 October 2019.

[Mr Francois]

So only an Act of Parliament will stop it.

[James Cleverly]

The default position is that that is how we leave. The House would have to do something proactively to prevent that.

The purpose of this statutory instrument is to align UK domestic legislation and international legislation. Hon. Members will recall that for the first extension of article 50, the equivalent SI was subject to the affirmative procedure and debated in both Houses before it came into force.