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

Debate between Mark Francois and William Cash

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.