European Union (Notification of Withdrawal) Bill

Oliver Letwin Excerpts

2nd reading: House of Commons
Wednesday 1st February 2017 Commons Chamber

[Mr Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)]

I am grateful to my right hon. Friend the Member for Gordon (Alex Salmond) for trailing my speech in his remarks.

I did not intend to speak yesterday or today, but as I listened to the speeches yesterday, it occurred to me that the House of Commons has quite clearly taken leave of its senses. That happens at times, but the difficulty and danger is that the public trust the House of Commons at moments such as this. They trusted the House of Commons on Iraq, when it had taken leave of its senses, and on the poll tax, when it had taken leave of its senses. On the poll tax, that was quickly corrected, but Iraq still lies in ruins. It is at times when the Opposition unite with the Government that the House particularly takes leave of its senses. If ever there was a time to beware, it is now.

I listened carefully to the right hon. Member for Tatton (Mr Osborne), who is not in his place. He gambled with his scare stories on the EU and on Scotland. On Scotland, he won; on the EU, he lost. This time, are we feeling lucky? A deal is in the gift not of the UK Government alone, but of 38 assemblies and regional parliaments across Europe, 27 sovereign nation Parliaments and one EU Parliament. We are but one in 67 voices, and we have to get that into our heads.

The Prime Minister has said that no deal is better than a bad deal, but no deal would mean for farmers that meat had 22% tariffs, dairy had 36% tariffs and fish—this particularly affects my constituency—had 12% tariffs. People assume that the House of Commons knows what it is doing, but it does not. It is crossing its fingers and hoping for the best.

We are told time after time in the Chamber that people know what they voted for. Perhaps they knew what they were voting for—to leave the EU—but they certainly did not know the destination, and neither does this House. The International Trade Committee, of which I am Chair, does not know the destination, nor does the Department for International Trade. The Prime Minister does not know the destination. The pretence that because the people voted to leave the EU, they knew the destination is beyond facile. People who have appeared before my Committee from BASF, Manchester Airports Group, the CBI, the National Farmers Union, Dairy UK, the Society of Motor Manufacturers and Traders, the British Chambers of Commerce, the Agriculture and Horticulture Development Board, Tech City UK and the Law Society do not know the destination for the UK. The UK is on a precipice.

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

The hon. Gentleman is speaking as though that is a great perception. Has he ever come across a negotiation between two parties in which it was possible to predict the outcome in advance?

[Mr MacNeil]

The right hon. Gentleman makes precisely my point, and I am grateful to him for doing so. He may be able to tell me how many member states of the United Nations are not in a regional trade agreement. Anybody? [Interruption.] The hon. Member for Braintree (James Cleverly) knows: he was at my Committee session today. There are only six member states of the United Nations that are not in a regional trade agreement.

European Union (Notification of Withdrawal) Bill

Oliver Letwin Excerpts

Committee: 1st sitting: House of Commons
Monday 6th February 2017 Commons Chamber

[Mr Harper]

I completely agree with my hon. Friend and it is difficult to avoid the conclusion that, certainly the Opposition Front Bench was desperately looking around for amendments that would not stop the Bill in its tracks, and this was about the best they could come up with. But it does not really add very much and is rather unnecessary, and, as I have said, many of the new clauses are rather repetitive, talking about reports and information about a whole raft of EU institutions, which will, of course, be covered in any event.

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

Does my right hon. Friend agree that the effect, if not the intent, of the Opposition new clause would be to make all these matters justiciable and therefore bring the courts into the question of whether the Government’s reports were sufficient and, indeed, appropriate?

[Mr Harper]

My right hon. Friend makes a very good point. Once we put things into primary legislation and set out the nature and terms of the report, it will, as we have seen, be justiciable, and it will allow people to go to court and argue—they might be successful, they might not—that what the Government have brought forward is not adequate, and we will then have a continuation of the legal arguments that we have seen.

--- Later in debate ---

[Helen Goodman (Bishop Auckland) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Howarth. I should like to speak to new clauses 29 and 33, tabled in my name and those of other right hon. and hon. colleagues.

The Secretary of State—who is not here for this debate—said with his usual braggadocio that he would produce a Bill that was unamendable. Today, we have a list of amendments that is 145 pages long. The ratio of lines in the amendments to lines in the Bill 580:1, which must be an all-time record. It is certainly a tribute to the productivity of hon. Members on this side of the House. However, the chutzpah of the Secretary of State was exceeded by the civil servant who wrote paragraph 14 of the Bill’s explanatory notes, which states:

“The impact of the Bill itself will be both clear and limited”.

No. The effect of the Bill is not clear and it is certainly not limited. The fact that hon. Members have tabled so many new clauses and amendments demonstrates why this debate on parliamentary scrutiny is so important.

I am pleased to follow the hon. Member for Colchester (Will Quince), whose constituents voted leave in the referendum. Mine did too, and his speech was the perfect introduction to my own. I want to describe why it is also in the interests of those who voted leave that we should have proper parliamentary scrutiny. The referendum campaign was won on the slogan of taking back control and bringing back parliamentary sovereignty. We cannot do that without having proper parliamentary scrutiny.

New clause 29 is perfectly simple and straightforward: it proposes a quarterly reporting system during the negotiations. That would give the House a structured approach. The right hon. Member for West Dorset (Sir Oliver Letwin) complained about new clause 3—which was ably moved by my hon. Friend the Member for Greenwich and Woolwich (Matthew Pennycook)—saying that it would create problems of justiciability. I hope the right hon. Gentleman will agree that the requirement to produce a report once a quarter is not such a high or complex legal bar, and that it would not lead to extremely long litigation. It is a simple, practical measure.

[Sir Oliver Letwin]

Does the hon. Lady imagine that there would be no court cases about whether such quarterly reports conformed with the appropriate procedure? Is she aware of the chain of jurisprudence in judicial review that leads to the possibility of that kind of contest? What does she think would happen if the courts started intervening in the matter of whether the reports met the requirements of her new clause?

[Helen Goodman]

First, it is not clear that such cases would get leave of hearing. Secondly, any such case would be dismissed straight away, so long as the Government had abided by the requirement to produce quarterly reports. There simply would not be a case to answer. This is a simple and straightforward proposal.

[Sir Oliver Letwin]

So does the hon. Lady think that the Government would satisfy the conditions of her new clause if they simply produced one line saying, “This is our report”? Or does she believe that it would have to be an appropriate report? If that were the case, could not a court decide whether it was appropriate or not?

[Helen Goodman]

As the Chairman of the Select Committee said earlier, when we got into a discussion about the requests from the Opposition Front Bench, the nature of the report would be a matter for the Government. I am sure that the Government would behave in a reasonable manner if this provision were in the legislation.

As I was saying to the hon. Member for Colchester, my constituency voted leave. I voted for the Bill on Second Reading so that the Prime Minister would have the power to trigger our intention to withdraw from the European Union under article 50. However, the political legitimacy stemming from the result of last summer’s referendum does not extend to giving the Government a blank cheque for their negotiating objectives or for the way in which they conduct the negotiations. Everyone is clear that this will have major constitutional, political, economic and social implications for our relations with other countries and for the domestic framework of our legislation.

Given the lack of clarity, and the fact that there was no plan, I have consulted my constituents on their expectations and hopes, and on how they want these decisions to be taken. I wrote to 5,500 of them, and I held six public meetings. They felt strongly that they wanted Parliament to be involved. In fact, some of them thought that the negotiations should be conducted by a cross-party team. I said that I did not think that was terribly likely—

--- Later in debate ---

[Jenny Chapman]

I had anticipated that intervention from the hon. Gentleman, consistent as he is in raising such points. If he will forgive me, I shall deal with it later in my speech.

[Sir Oliver Letwin]

If the Government wish to proceed with article 50, and if SNP Members do not wish to proceed with it and that is the position of the Scottish Government, how are the United Kingdom Government meant to take this into account? What happens if someone takes into account the opposing view?

[Jenny Chapman]

I agree that it is difficult. [Laughter.] I do not think it is funny, but it is difficult. Our amendment does not require consensus, and if the right hon. Gentleman reads it closely, he will see that it has been very carefully worded. The fact that consensus is not easy does not mean that we should not at least try.

--- Later in debate ---

[Mr Harper]

I am grateful to you for calling me to speak, Ms Engel. I can see that Members are looking forward to this. There are a number of new clauses and amendments in this group, and Members will be pleased to know that I do not plan on speaking to all of them. I shall group them in a way that I think is sensible. There are some that are unnecessary, some that arguably do very little but run a risk of doing harm, and some that are outright vetoes on the process, which is completely unacceptable. There is one about a national convention, about which I will speak briefly, and a couple of very important ones about Northern Ireland, which I would also like to speak to.

Starting with new clause 4, to which the hon. Member for Darlington (Jenny Chapman) has just spoken, I think my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) put his finger on it when he asked her about consensus. I think we need to explore this point further. The new clause proposes that

“the Secretary of State must seek to reach a consensus”.

My right hon. Friend pointed out that it was unlikely that any such consensus would be reached because the Scottish nationalists fundamentally disagree with our leaving the European Union. Not only that, but unlike the other First Ministers, they also do not wish to see a continuation of the United Kingdom—[Interruption.] They have just confirmed that verbally in the Chamber. So it seems unlikely that consensus would be reached. The problem with putting this new clause in statute is that it would then become justiciable, as my right hon. Friend said earlier. A court could then be asked to adjudicate on whether the Secretary of State had tried hard enough to reach consensus. Even if the court then ruled that everything was fine, this would still be just a way of delaying the process.

[Sir Oliver Letwin]

Did my right hon. Friend also notice that the Opposition spokesman referred to “embedding” the Scottish Government in the proposals? Does he agree that, roughly speaking, that is like Wellington being asked to embed Napoleon in his strategy for the Napoleonic wars?

[Mr Harper]

My right hon. Friend has a much greater command of history than I do, but even with my limited reading I think he is probably about right.

My right hon. Friend the Member for East Devon (Sir Hugo Swire) asked the hon. Member for Darlington to distinguish between the First Ministers of the different devolved nations, and I think the distinction is that the First Ministers of Northern Ireland and of Wales wish to see the continuation of the United Kingdom, but the First Minister of Scotland does not. That is material to the sensibleness of proceeding with new clause 4.

European Union (Notification of Withdrawal) Bill

Oliver Letwin Excerpts

Committee: 2nd sitting: House of Commons
Tuesday 7th February 2017 Commons Chamber

[Helen Goodman (Bishop Auckland) (Lab)]

I rise to speak to new clauses 28, 54 and 99, standing in my name and those of other right hon. and hon. Members. New clause 28 deals with the sequencing of votes on the final terms—the issue on which we have had a concession this afternoon from the Minister; new clause 54 is about how to secure extra time if we need it in our negotiations with the EU; and new clause 99 embeds parliamentary sovereignty in the process.

I am pleased to follow the right hon. Member for Wokingham (John Redwood), but I am disappointed that he has not come clean to the Committee on the fact that he has identified an alternative process he hopes to use to secure the kind of Brexit he wants. He did not refer to another blog he wrote recently, in which he said:

“Being in the EU is a bit like being a student in a College. All the time you belong to the College you have to pay fees... When you depart you have no further financial obligations”.

This is a somewhat outmoded view of the way student finances work, but putting that to one side, he evidently has not read the excellent paper by Alex Barker of the Financial Times pointing out that the obligations on us will fall into three categories: legally binding budget commitments; pension promises to EU officials; and contingent liabilities, which indeed are arguable.

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

Will the hon. Lady give way?

[Helen Goodman]

I will make a little more progress, if the right hon. Gentleman does not mind.

The right hon. Member for Wokingham has also pointed out that Ministers can only authorise spending and sign cheques with parliamentary approval. He is right about that, and it is right that we have that say, but he is hoping to use that moment to veto the withdrawal arrangements and scupper the chances of a more constructive and productive future relationship. On Second Reading, the right hon. Member for Tatton (Mr Osborne) said—this was astute if somewhat tasteless—that it

“will be a trade-off, as all divorces are, between access and money.”—[Official Report, 1 February 2017; Vol. 620, c. 1035.]

For the right hon. Member for Wokingham and his friends, there is no trade-off—he does not want access or money.

New clause 54 calls for extra time. Hon. Members have already raised the need for extra time if Parliament declines to approve the final terms. The new clause adds a scenario in which the Government have not managed to complete the negotiations within the 24 months specified in article 50. This is more likely than not. Almost everyone who has looked at the matter in detail is incredulous that we can complete these negotiations in 24 months. The record on completing trade deals is not good, and there are many more strands to this negotiation. It would be patently absurd to flip to a damaging situation without an agreement, if we can see, once we are in the negotiations and have the detailed work schedule, that a further six or 12 months would bring us to a successful conclusion. Similarly, it is possible that the Minister’s optimism is well founded but that, while the negotiations have been completed, the parliamentary process has not. In that instance, too, we ought to have extra time.

New clause 99 addresses a different matter. It would embed parliamentary sovereignty in the process of approving the final terms of withdrawal and ensure that the UK withdrew on terms approved by Parliament. Bringing back control and restoring parliamentary sovereignty were a major plank of the Brexit campaign. The new clause is the fulfilment of that promise—the working out in practice of what was promised. The Prime Minister has already said that Parliament should have a vote at the end of the process, and new clause 99 strengthens that promise by requiring primary legislation to give effect to any agreement on arrangements for withdrawal and, even more importantly, on the future relationship. This is important, so that Parliament does not have to give only a metaphorical thumbs-up, which could, as my hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) has said, be meaningless. Instead, Parliament can undertake line-by-line scrutiny. Brexit has major constitutional, political, economic and social consequences. It is right for Parliament to approve the way in which it is done. This new clause will improve the dynamic of the negotiations and strengthen the Prime Minister’s hands. She can say to the EU, “Parliament won’t agree to that.”

--- Later in debate ---

[Helen Goodman]

I may wish to test the will of the Committee on this new clause when we reach the end of the debate.

I think most rational people would say that the new relationship is more important than the terms of withdrawal.

[Sir Oliver Letwin]

The hon. Lady said a moment ago that new clause 99 did not seek to delay or derail the leaving process. In the event of paragraph (b) of the new clause coming about—namely, no deal—if Parliament voted against it, would the effect not clearly be that we would stop the process of leaving, thereby denying the effect of the referendum?

[Helen Goodman]

I do not think it does mean that. It would depend on whether or not extra time had been agreed with the European Union. If the right hon. Gentleman referred back to article 50, he would see that we might get an extension if the other member states agree to provide us with it unanimously. They may; they may not. As we stand here today, it is quite difficult to project ourselves forward into the situation we will find in two years’ time.

[Sir Oliver Letwin]

I am doubly grateful to the hon. Lady. Does she not agree that in the event that we are not given extra time by mutual agreement, and in the event that Parliament has rejected withdrawal without an agreement, the effect of paragraph (b) of the new clause would clearly be the negation of the result of the referendum by Parliament? Does that not go against what she has voted for?

[Helen Goodman]

I do not think it does, because it leaves open the possibility of the Government’s going back to the drawing board and making a further new arrangement. As I say, for us now, when we have not yet embarked on the process and we do not know what the deals will be and what is going to be offered, it is extremely difficult for us to foresee.

--- Later in debate ---

[Tim Farron]

I am not going to give way, as I have given way many times and I want to bring my remarks to an end, for everybody else’s sake. [Hon. Members: “Hear, hear.”] I thought Members would like that.

The final deal will not be legitimate, it will not be consented to and our country will not achieve closure if it is imposed on the British people through a stitch-up in the corridors of power in Brussels and Whitehall. Democracy means accepting the will of the people at the beginning of the process and at the end of the process. Democracy means respecting the majority and it also means not giving up on one’s beliefs, rolling over and conceding when the going gets tough. You keep fighting for what you believe to be right and that is what Liberal Democrats will do. So we agree with the Brexit Secretary: let us let the people have their say. Let us let them take back control.

[Sir Oliver Letwin]

Let me start by correcting the record. I had something to do with the production of our manifesto, which clearly the hon. Member for Westmorland and Lonsdale (Tim Farron) was unable to read in the time available to him. It made no assertion such as he suggests. It was perfectly clear that what it said about the single market would be superseded were there a referendum with the unanticipated result of the British people taking us out of the EU as a whole. I regret that decision—I voted and campaigned to remain—but the British people voted to leave.

The interesting thing about this interesting debate is that it is one of those moments when the cloak of obscurity is lifted from an issue and the dynamic that is actually going on becomes clear. We have reached the crunch issue. We have reached the point at which we are discussing whether the effect of the Supreme Court judgment should be that Parliament has the option at some future date of overruling the British people and cancelling the leaving of the EU, or whether it should not have that ability.

My right hon. Friend the Minister made it perfectly clear that there will be a vote, but he also made it perfectly clear that that vote will be between the option of accepting a particular set of arrangements that have been negotiated by Her Majesty’s Government, and not accepting those arrangements and thereby leaving the EU without either a withdrawal agreement or an arrangement for the future. He is right to be optimistic that we can reach such agreements, but neither of us can possibly know whether we will. It is therefore right, if one is trying to follow the logic of the referendum decision, that the judgment of this House should simply be about whether the deal is good enough to warrant doing or, on the contrary, we should leave without a deal.

That is a completely different proposition from the one which, in various guises, some on the Opposition Benches—I exempt entirely from this the Opposition Front-Bench team—are putting, which is that Parliament should instead be given, by one means or another, the ability to countermand the British people’s decision to leave the EU by having a vote either on whether we should or should not leave or, in the proposition of the leader of the Liberal Democrats, on whether the people should have a second referendum on whether we should leave. In both of those propositions is a clear determination to undo the effect of the referendum, and we have now reached the point at which that has come out into the open.

[Alex Salmond]

The alternative is just to instruct the Government to negotiate a better deal. The phrase in the Conservative manifesto, which the right hon. Gentleman did not write, was:

“We say: yes to the Single Market.”

That sounds pretty unequivocal.

[Sir Oliver Letwin]

Not at all; at that moment we were a member of the EU and we said yes to the single market. I campaigned for the single market and I campaigned to remain part of the EU. That was the Government’s position in the referendum. But we also committed to a referendum, and the point of committing to a referendum, which we made perfectly clear not only in the manifesto but in a range of speeches around it, was that if the British people voted to leave, we would leave. It seems to me perfectly clear that the word leave means leave. It does not mean remain. The right hon. Gentleman is an expert parliamentarian, and he has been arguing in many ways, over a long time—the leader of the Liberal Democrats has been arguing it more explicitly—that leave ought to be translated as remain. I deny that that is a translation to which the English language is susceptible.

It seems to me to be perfectly clear that those of us who campaigned to leave and those of us who campaigned to remain have a choice: we can either accept the referendum result or reject it. I accept it, and some Opposition Members also take that view. It may be that some take the view that we should reject the referendum result, and that is a perfectly honourable view. The leader of the Liberal Democrats was effectively arguing, more openly, that we should reject the referendum result. I do not in any way decry his ability to argue that, but everybody who is arguing that should come out openly to that effect, as he did, and not pretend that they are trying to invent some method of parliamentary scrutiny. They are doing nothing of the kind; they are trying to invent a means of undoing the result of the referendum. This House has voted conclusively not to undo the result of the referendum. I think the House was right to do that, but whether it was right or not, it should do that with its eyes open and should not be gulled by anybody into passing amendments that have an effect that it has not signed up to openly.

[Tim Farron]

I want to clarify that from my point of view it is absolutely clear that this place, Parliament as a whole and, indeed, the courts have no right whatsoever to bar the will of the people. It would be absolutely wrong to overturn the outcome of the referendum last June. I am merely asking for the British people to have the final say on the deal, and that if they reject it, we should stay in the EU. I should also point out that voting to say we leave the EU means leaving the EU; it does not mean leaving the single market—it does not mean that for Norway and Switzerland.

[Sir Oliver Letwin]

There are two points at issue. First is the question of whether leaving the EU means leaving the single market. As I argued throughout the referendum to those I was seeking to persuade to remain, it does inevitably mean leaving the single market. I have always taken and continue to take the view that leaving the EU does entail leaving the single market. I regret that, but that is what it entails, in my view.

Leaving that aside, however, I accept that the Liberal Democrat proposition is that it should be not this House directly that countermands the referendum, but a second referendum. The proposition of the hon. Member for Westmorland and Lonsdale (Tim Farron), which is perfectly decent and honourable, is that however many times it takes, the British people should go on being asked to reverse their original decision, and that one should never give up trying to do so because the right answer is to remain. That is a perfectly respectable proposition, but it is not the proposition of a democrat. It is the proposition of a clerisy that knows the answer and believes that people who vote otherwise are misguided and need to be led, time after time, to revise their opinion by whatever means until at last they give the answer that is required.

Unfortunately, that is the very dynamic that has given rise to this whole problem. We are at this juncture today, because our Government passed the Maastricht treaty against the will of the British people and without consulting them, and took us into a form of the European Union to which the people had never consented. That eventually produced the democratic result that the hon. Gentleman and I both dislike. His answer to that is to go on with that logic until at last the British people totally lose faith in any semblance of democracy in this country. Personally, I cannot accept that proposition. In the end, much as I would have preferred to remain, I would rather be in a country that is run as a democracy and that has faith in its governance. We can only achieve that today by fulfilling the terms of the referendum.

I want to turn briefly to the new clauses; by comparison it is a minor point. New clause 1 is fairly innocuous. I am delighted that my right hon. Friend the Minister has indicated that we will not accept it, because there is a scintilla of doubt about whether it is itself justiciable. It says that the statement of the proposed terms of the agreement must be accepted. If that is written into the law, a very clever lawyer—Lord Pannick and others are very clever lawyers—might be able to mount some kind of judicial review of the question of whether the Government had in fact brought forward a statement of the proposed terms of the agreement that was adequate to the intent of the Bill, or the Act. I doubt that that would occur, so, personally, I do not have any very strong feelings about the new clause.

New clauses 99 and 110, about which some Opposition Members have spoken, are entirely different in character. Each of them makes it clear in two different ways that the House of Commons would be called on to make a set of decisions that are justiciable and potentially undermine the leaving of the EU.

In the case of new clause 99, notwithstanding my exchange with the hon. Member for Bishop Auckland (Helen Goodman), it is perfectly clear in paragraph (b) that if Parliament found itself in a position in which it had not approved the withdrawal without agreement then it would have created an appalling conflict of laws. Article 50 is very explicit. It says:

“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification”.

If the EU had agreed unanimously not to extend the period, the treaties would cease to apply, but Parliament would have, prospectively, voted not to leave. If Parliament has voted not to leave and the treaties do not apply, who in this House could possibly say which of these two laws is superior to the other? We would be in a position of intolerable legal conflict. Clearly, new clause 99 is deficient as a piece of legislation. I hope therefore that those who propose it will take that point and not press it.

New clause 110 is not as bad as new clause 99, although it is very odd because it says:

“any new Treaty or relationship with the European Union must not be concluded unless the proposed terms have been subject to approval by resolution of each House of Parliament.”

Now, it is possible to be subject to approval without being approved, and it is entirely unclear whether new clause 110 refers to approval or to the process that might have led to approval. That, itself, would be justiciable.

Quite apart from that bad drafting, the new clause creates a legal minefield, because it makes it clear that

“any new Treaty or relationship with the European Union must not be concluded”.

Now, one possible relationship that “must not be concluded” without parliamentary approval would be the relationship of not being in the EU, so the new clause, arguably at least—this could be contested in court—would be an opportunity for Parliament to reverse the intent of the referendum and deny leaving.

New clauses 99 and 110 look as innocuous as new clause 1. In fact, they are neither innocuous nor well drafted, but poorly drafted and highly noxious. They fulfil the purposes to which I referred in the earlier part of my remarks: to gull Parliament, if it were to accept either new clause, into putting itself in the position of potentially reversing the decision of the British people. I very much hope that even if the Minister is at any time remotely tempted to accept new clause 1, he will never accept new clauses 99 or 110 at any rate, and that we will steadfastly resist such amendments should they appear here or in the other place.

[Charlie Elphicke]

I have two concerns about new clause 1. The first is that it is already clear that the Government mean to involve Parliament throughout the whole process, with frequent statements, updates and discussions. The second is that we cannot know all the permutations around which the agreement and exit may be affected. To legislate for that now, before we know how it will all end up, is premature and would risk us binding the hands of the Government and negotiators.

[Sir Oliver Letwin]

I share my hon. Friend’s preference for not legislating in that respect. In fact, one can go wider. There are good reasons why, over a very long historical evolution, the House of Commons has always resisted legislation that governs its own proceedings. A number of authorities on our constitution have written that the nearest approximation to the constitution of the United Kingdom are the Standing Orders of the House of Commons. That is not a frivolous remark by those authorities; it is true.

Such a situation has arisen because we have resisted having legislation that governs the House of Commons in order to avoid the judges becoming the judges of what should happen in the House of Commons. We have invented, over a very long period, the principle of comity—that the judges do not intervene in the legislature, and the legislature does not intervene in the decisions of the judiciary. To legislate for how the House of Commons proceeds would move over a dangerous line. I am therefore with my hon. Friend the Member for Dover (Charlie Elphicke) in hoping that we will not accept new clause 1. I am just saying that if we were tempted at all to introduce any piece of new legislation at any stage, it should certainly look like new clause 1, not new clauses 99 and 110. Those new clauses would subvert the referendum, and we cannot allow that.

[Chris Leslie (Nottingham East) (Lab/Co-op)]

I have some respect for the right hon. Member for West Dorset (Sir Oliver Letwin), but I have been in enough Bill Committees over my short time in Parliament to have heard some of those arguments. When I hear hon. Members resorting to mentioning the drafting of a particular phrase—particularly when the right hon. Gentleman came to the phrase “subject to approval” of both Houses, as if it were somehow an alien concept to be resisted in all circumstances—I hear the last refuge of the parliamentary barrel scraper. If he has substantive arguments against new clause 110, which I advocate as it is in my name, it is better to engage with those, rather than dancing around trying to find second or third order arguments against.

It has been an interesting debate so far. There was a moment of frisson and excitement—well, excitement in parliamentary terms—at the beginning when the Brexit Minister, the right hon. Member for Clwyd West (Mr Jones), who is still in his place, stood up and breathlessly said, “Let me give you a concession. I’ll indicate that something here is substantively different.” At the Dispatch Box, he clarified a little further—not much further—than the Prime Minister did in her speech at Lancaster House the timing of the vote that Parliament will have, but the right hon. and learned Member for Rushcliffe (Mr Clarke) quickly spotted that, in the definitions of when a negotiation is concluded and when it is signed off, there is still a grey area as to what the timing would be.

I suppose it is some small mercy that many hon. Members might say that this is some level of progress, but having been marched up to the top of the hill in the expectation that this was a great concession, I am afraid that, as the minutes have ticked by, we have marched back down the hill again. Through the probing of many hon. Members on both sides of the House, we have discovered a number of things about the vote, and we should not forget that we are trying in this section of the debate to secure a properly meaningful vote at the end so that parliamentary sovereignty can come first, as the Supreme Court emphasised in its judgment.

When pressed, the Minister had to admit that if we ended up with no deal, the House would not get a vote on that circumstance. That is deeply regrettable because new clause 110 deliberately talks about a “new Treaty or relationship”. A relationship, of course, involves the connection between two entities. That connection can be a positive new one, but it can also be one with a disjoint within it. We should have a vote if that relationship includes no deal.

The Minister said we would not be having a vote if there was no deal. That is extremely disappointing; it is not in the spirit of the concession being sought. We were looking for a concession on not just the timing of the parliamentary vote but the scope—in other words, the circumstances in which, having gone through the negotiations, we would be able to vote.

It is a little like travelling for two years down that road of negotiation, getting to the edge of the canyon and having a point of decision: are we going to have that bridge across the chasm—that might be the new treaty, which might take us to that new future—or are we going to decide to jump off into the unknown and into the abyss? Parliament should have the right to decide that. That is the concession I think many hon. Members were seeking, and it is not the concession we received.

[Sir Oliver Letwin]

The hon. Gentleman has given an extraordinarily important clarification of his new clause. As I suspected and speculated, “relationship” includes the potential for no relationship. Therefore, he is advancing the proposition that Parliament should be able to reverse the effect of the referendum and prevent the United Kingdom from being able to leave the EU.

[Chris Leslie]

No. As we saw on Second Reading, it is quite clear to all concerned that we will be leaving the European Union. That was the judgment in the referendum, that was the question on the ballot paper and the House came to that point of view. But it is important that Parliament reserves the right, as the Prime Minister has sort of indicated, to have a say on the final deal. This is our opportunity—potentially our final opportunity— to set out on the face of the Bill precisely what the circumstances would be.

--- Later in debate ---

[Mr Grieve]

I agree entirely with my right hon. Friend. I hope that the Government will listen because, as I say, this issue will not go away. It will keep coming back to dominate our politics until we have resolved it satisfactorily. That said, I would be being curmudgeonly towards the Minister if I did not thank him for having listened on this issue, for which I am grateful.

[Sir Oliver Letwin]

My right hon. and learned Friend has thanked the Minister, but I think that the Committee ought to thank my right hon. and learned Friend. He has set out the responsible version, which we did not hear from Opposition Members, of how to deal with this issue.

[Mr Grieve]

I am grateful to my right hon. Friend. He made some of the points that I might have made in his speech. He and I approach the issue from a similar angle.

--- Later in debate ---

[Mr McFadden]

The new clause is very simple on this point. It asks that in those circumstances the Government will seek to negotiate an alternative agreement. That is perfectly reasonable.

[Sir Oliver Letwin]

Will the right hon. Gentleman give way?

[Mr McFadden]

I do not have much time so I am going to conclude.

The point of all of this is to avoid the choice between being told that we have to define as success, on the first account of it, whatever the Government have managed to negotiate, or default to the WTO. To be honest, a concession on timing that does not allow us to ask the Government to go back and negotiate a better agreement is simply holding a gun to Parliament’s head a few months earlier than would otherwise have been the case. This new clause is about taking all the claims made for decades about parliamentary sovereignty and making them real, rather than giving us a choice between deal or no deal, take it or leave it, my way or the highway. Frankly, Parliament and the country deserve better than that.

European Union (Notification of Withdrawal) Bill

Oliver Letwin Excerpts

3rd reading: House of Commons & Committee: 3rd sitting: House of Commons & Report stage: House of Commons
Wednesday 8th February 2017 Commons Chamber

What is it about our air and our seas, and the impact of our carbon emissions on the planet, that is specific—so specific that addressing it cannot be done better through continued collaboration with the European Union?

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

I have been listening to the hon. Gentleman with great interest for around 20 minutes. What does what he is saying have to do with article 50?

[Paul Blomfield]

I guess the right hon. Gentleman has spotted that triggering article 50 will signal our departure from the European Union; he can intervene if I have got that wrong. [Interruption.] The right hon. Member for Forest of Dean (Mr Harper) is not going to get a chance. Our departure puts at risk the many benefits—

--- Later in debate ---

[Kit Malthouse]

My hon. Friend rightly points out that, as with all of these amendments, even if this does not happen, there is nothing to be done. There is no sanction; there would just be a shrug of the shoulders, and we would have to turn our back and ask the hon. Member for Nottingham East what we are supposed to do next if we cannot manage to comply with his amendment. It really is nonsense. I know the hon. Gentleman has ambitions within his party, but he will have to do a little bit better than produce stuff like this.

Again, new clause 179 on protecting current levels of funding states:

“In negotiating and concluding an agreement in accordance with Article 50(2) of the Treaty on European Union, Ministers of the Crown must have regard to the desirability of protecting current funding from the European Union.”

Funding to whom? Which funding? All funding? The funding that we send? The funding that comes back? Defence spend? Funding to us, or funding to other countries? The vagueness of these new clauses is extraordinary.

Again, new clause 183 on membership of the single market including EU-wide reform of freedom of movement states:

“secure reforms of provisions governing the free movement of persons between EU member states in such a way as to allow for greater controls over movement of people for member states”.

That is all very vague, as is

“maintain the highest possible level of integration with the European single market.”

What does that mean? What is the highest possible level of integration? Perhaps that means membership.

[Sir Oliver Letwin]

I think my hon. Friend is being a little uncharitable. He seems to be assuming that these new clauses are without purpose, but, as was recently pointed out, they have a very definite purpose: were they to be passed, it would be impossible for the Government to proceed with article 50. It would be in the courts certainly for years, possibly for decades, and maybe even for centuries. A very conscious policy of great intelligence is being followed here. My hon. Friend is underestimating the ingenuity of the Opposition.

[Kit Malthouse]

My right hon. Friend may well be right. Perhaps I am—

--- Later in debate ---

[Caroline Flint]

I absolutely agree with that statement by my right hon. Friend the Member for Birmingham, Hodge Hill (Liam Byrne). We should be having a more grown-up discussion about the mistakes that have been made and how we navigate what is for us all uncharted territory. A little humbleness in all that would not go amiss.

[Sir Oliver Letwin]

rose—

[Caroline Flint]

I will be two seconds. [Interruption.] Okay, I give way to the right hon. Gentleman.

[Sir Oliver Letwin]

I am most grateful to the right hon. Lady, who is making a very serious speech. Does she agree that as part of the grown-up discussion to which she refers, Members on both sides of the House need to have the courage to explain that migration of many kinds is beneficial to our economy and our society, in a way that we have not done so far?

[Caroline Flint]

I totally agree with that, but perhaps part of the problem is that often we talked about that a lot, to the exclusion of sometimes talking about the ways in which communities were feeling that it was not working for them. That is part of the problem. We in politics all know that we create white noise, but how much of it actually gets through to the public? Let us remember that every single region in England, outside of London, voted to leave. If we avoid these important issues, we do so at our peril. For me, the biggest danger is that we let the extremes of the far right occupy ground that allows them to influence the debate, and I hope none of us would want that.

I wish to make some progress and address briefly some of the amendments and new clauses that are important for both sides of the House to consider. Whether or not they are passed tonight, we will see, but I hope that their content and some of the contributions that are made will be taken seriously by Ministers and given some attention when they respond.

It is important, and in the UK’s interest, that we present ourselves not as a nation retreating from a successful international union, but as a nation that remains determined to uphold that union’s best values. New clause 7 speaks to that aim, as it would commit the Government, in advance of any negotiations, to having regard to the legislation shared throughout the EU on preventing and tackling tax avoidance and evasion—a matter to which I have given considerable time over the past few years.

In September last year, the UK put itself at the forefront of the international debate on public country-by-country reporting. Our stance should be, as it was then, that the best and biggest international companies with any substantial presence in the UK should have no fear of openness, and no fear of publishing where they do business and pay taxes. In that spirit, the UK should pledge, ahead of the negotiations, to comply with the EU code of conduct on business taxation. We should do so not because we are required to, but because we want to uphold the standards on which, in many ways, the UK has been leading. It is unfortunate that some of the Prime Minister’s comments seem to rail against some of the positive efforts that have been made to tackle tax evasion and avoidance and some of the issues relating to tax havens. It would be a huge step backwards if we were seen to step away from something important and on which we could be leading the world.

New clause 100 is a modest provision on equality and women’s rights, yet its values reach to the core of what modern Britain should be about. It is modest because it simply asks that during negotiations the Government have regard to the public interest in maintaining employment rights and co-operation against trafficking, domestic violence and female genital mutilation. It suggests a cross-departmental—it could be cross-party, if we want—working group to recommend appropriate legislation on equality and access to justice. The values are clear: it asks only for what we already have, but it also asks the House to embrace the things we value and to make it clear that none of them will be sacrificed during our departure from EU membership.

New clause 163 is about consultation with the English regions. We have heard much in this Chamber about the importance of a meaningful dialogue with the devolved Administrations, and I endorse that approach. I have argued publicly that the best way forward is for the Government to acknowledge that we are in uncharted waters, and that the Prime Minister should be seeking cross-party agreement and having regular meetings with other party leaders. I should not need to remind her that, like me, her Government argued to remain. The decision of the British people on 23 June was an instruction not just to the Prime Minister and a handful of Ministers, but to all of us in this House.

European Union (Notification of Withdrawal) Bill

Oliver Letwin Excerpts

Ping Pong: House of Commons
Monday 13th March 2017 Commons Chamber

[Keir Starmer]

There was one question on the ballot paper, and that was whether we should stay in the EU or leave the EU. There was no second question about the terms of leaving. It is impossible to extrapolate, but I would be staggered if most people thought that this House should not have a proper grip of the available options in two years’ time and hopefully beyond. I expect that they would have said, “Of course we want Parliament to be fully involved. We would expect accountability and scrutiny, and we would expect votes.”

I shall conclude, because we only have two hours and other people wish to speak. These are simple amendments that would improve the article 50 process. They have obtained cross-party support and large majorities in the Lords, they are the right amendments on vitally important issues, and the obsession with the idea of a clean, unamended Bill should not triumph over decency and principle.

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

I agree with what my right hon. Friend the Secretary of State said about amendment 1, but I wish to speak about amendment 2. The operative provision is subsection (4) which states—I want to remind the House as it is material to what I am about to say:

“The prior approval of…Parliament shall…be required in relation to any decision by the Prime Minister that the United Kingdom shall leave the European Union without an agreement”.

I have already argued in past debates exactly what my right hon. Friend argued today—namely, that if that subsection were to have its intended effect, it would be inimical to the interests of this country, because it would have the undoubted effect of providing a massive incentive for our EU counterparts to give us the worst possible agreement. I agree with him about that. However, I think that the situation is worse—far worse—than he described, because the operative subsection is deeply deficient as a matter of law. The reason for that is not just the one that Lord Pannick admitted, or half-admitted, in the House of Lords, but because under very plausible circumstances this subsection will not have anything like its intended effect. Let me briefly illustrate why that is the case.

Article 50 of the treaty on European Union is, for once in treaties, entirely clear. Paragraph 3 of the article states:

“The Treaties shall cease to apply to the State in question…two years after the notification…unless the European Council… unanimously decides to extend this period.”

Let us imagine that what the Secretary of State, the Government, all my hon. Friends and, I suspect, all Opposition Members hope will not be the case—namely, that the negotiations for a proper comprehensive free trade agreement break down—actually happens. We all hope that will not happen, but we cannot preclude the possibility that it will happen. If it does happen, I think all Members on both sides of the House must have the emotional intelligence to recognise that in all probability that would be under circumstances of some acrimony.

How likely is it that under such circumstances, with agreement having broken down in some acrimony, the European Council would be able to achieve a unanimous agreement to allow the UK to remain a member beyond the two-year period? I speculate that it is very unlikely. If we assume that that were to occur, we need to ask ourselves what would actually happen under those circumstances. One thing can be predicted with certainty: there would be litigation. The litigation would ask, ultimately, the Supreme Court to decide the question, “What has happened here? Has the Prime Minister made a decision, or has the Prime Minister not made a decision?” That could be decided in one of two ways. I rather think that Members on both sides of the House would agree with me that the Supreme Court must decide either that the Prime Minister has made the decision or that the Prime Minister has not made the decision.

Let us suppose for a moment that the Supreme Court decides that the Prime Minister has not made a decision, because it has been made instead by the European Council—a perfectly plausible outcome of the Court’s proceedings. In that case, subsection (4) is totally inoperable. It has no effect whatsoever, because what it does, purportedly, is to prevent the Prime Minister from making a decision without a vote. If the Prime Minister has, in the ruling of the Court, made no decision, it is impossible for her to have made a decision without a vote; therefore, the law has been conformed with, and Parliament is not given any ability to vote on the matter.

[Sir William Cash (Stone) (Con)]

I entirely agree with my right hon. Friend, and there is a further point. When it comes to the competing legislation at that point, it would be for the courts to consider whether or not the provisions in the Lisbon treaty that dealt with the question of article 50 had somehow been qualified, amended or repealed by a subsequent enactment.

[Sir Oliver Letwin]

I entirely agree with my hon. Friend, but it seems to me that for this purpose we do not even need to raise that question, because there is only one other possibility in this Court action—that the Court decides that the Prime Minister has implicitly made the decision. I do not quite know how the Court would get to that answer, but we could speculate that if the Prime Minister had acted differently in the course of the negotiations, the European Council would have acted differently, so implicitly the Prime Minister has made the decision.

Under those circumstances, subsection (4) would, purportedly, come into effect. That is, I suppose, what its authors intended. However, if the European Council has not by the end of the two-year period made a unanimous decision and if the courts decided that the Prime Minister had thereby implicitly decided, the courts would be requiring Parliament to do something that it is impossible to do—namely, to get the Prime Minister to reverse a decision that, as a matter of ordinary language, the Prime Minister would not have made at a time when the Prime Minister could not undo a decision that, as a matter of ordinary language, the European Council had made.

I am perfectly aware that it is of the greatest importance for Members of this House to show due deference to the other place, and I also genuinely admire the skills of the authors of the amendment, but I put it to them that even the House of Lords in all its majesty cannot compel the Prime Minister to do something that is impossible. That is beyond the scope of any human agency.

[John Redwood]

Is that not evidenced by Lord Pannick himself arguing seriously in court that the letter is irreversible?

[Sir Oliver Letwin]

I agree with my right hon. Friend, although the Supreme Court went to great pains not to refer the matter to the European Court of Justice, for very good reasons, so we can leave even that argument aside.

My point is very simple. Either subsection (4) would have its intended effect or it would not. If it did, it would be inimical to the interests of this country, because it would induce the worst possible agreement to be offered—as a matter of fact, it will not have that effect in plausible circumstances—and if it did not, it would be bad law. I put it to you, Mr Speaker, that this House should not be passing legislation that either is inimical to the interests of this country or constitutes bad law, and that we should therefore reject the amendment.

[Stephen Gethins (North East Fife) (SNP)]

This is a very timely debate about amendments that go to the heart of the situation in which we find ourselves. The Scottish National party has made it very clear that we want much more detailed reassurance—perhaps the odd detail or two from the Government—and that is where parliamentary scrutiny should have been involved. We should also be having a debate about the kind of country in which we want to live, and the kind of country that Scotland becomes and the United Kingdom becomes. That is where the amendment on EU nationals comes in.

The Secretary of State may have caught the First Minister’s statement earlier today, in which she made it very plain that this was not the situation in which we wanted to find ourselves. In fact, the Scottish Parliament voted by 92 votes to zero, across political parties, that we should look at ways of securing our relationship with Europe. It is a critical relationship that we have with our European partners, one that has an impact on, and benefits, each and every one of us; but, nearly nine months after the EU referendum, we still do not have that much in the way of detail from an increasingly clueless Government.

The most detailed response to the referendum so far came in the form of a compromise proposed by the Scottish Government just before Christmas. That compromise—let us not forget this—would have meant Scotland leaving the EU against its will to protect our place in the single market. It was a big compromise, and it took a lot from the Scottish National party to put it forward, especially given that Scotland had voted overwhelmingly to remain part of the European Union. We did it in order to protect jobs, the economy, and opportunities for young people and their environment in the face of a hard Tory Brexit.

The Fraser of Allander Institute has suggested that we could lose up to 80,000 jobs in Scotland alone as a result of the Government’s plans. We have a responsibility to protect those jobs, we have a responsibility to think about opportunities for young people, and we have a responsibility to think about the rights that we receive from our membership of the European Union. We have a responsibility not to just roll over in the face of a disastrous Tory plan.