European Union (Withdrawal) (No. 5) Bill

Oliver Letwin Excerpts

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

[The Chairman]

I am hoping that the lists have arrived.

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

On a point of order, Sir Lindsay. Would it not make sense to suspend the sitting for 10 minutes to make sure that all Members present can have a copy of the amendments and the selection list that you have spoken about?

[The Chairman]

I am just trying to see if we can get an indication of where we are up to with the printing and duplication, and why the lists have not been handed out. Nothing is yet forthcoming. Rather than suspend, I will repeat the list and see whether we can make progress with the numbers. The amendments that have been selected are 13, 20—

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[Yvette Cooper]

Yes—

[Sir Oliver Letwin]

Will the right hon. Lady give way?

[Yvette Cooper]

I will.

[Sir Oliver Letwin]

I should have thought that my hon. Friend the Member for Stone (Sir William Cash) would recognise that that is a reference to the Act that the Bill will become should it pass into law.

[Yvette Cooper]

The right hon. Gentleman is exactly right. Let me clarify the position. There are two references to two different Acts. There is one reference in clause 1(2) to the 2019 Act that this Bill will become, and another reference in clause 2(1), to the Act passed last year.

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[George Eustice]

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

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

[Sir Oliver Letwin]

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

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

[George Eustice]

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

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

[Sir Oliver Letwin]

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

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[George Eustice]

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

[Sir Oliver Letwin]

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

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

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Then there is the issue of UK law and exit day. At the moment, exit day has been redefined in the statutory instrument that went through—I believe unlawfully, but we will park that one for the moment—and it is now 12 April unless the House of Commons approves the withdrawal agreement. This Bill assumes that that will not happen, so exit day has to be 12 April under UK law. The Bill says nothing about changing that, and as I read sections 20(3) and (4) of the European Union (Withdrawal) Act 2018, a Minister cannot propose a change to exit day by laying a statutory instrument until the proposed extension date has been agreed with the EU. So unless all this is tied up on 11 April—which seems impossible, as I have just said—how is the UK law to be changed? It must be changed by UK law in those circumstances, of course.

[Sir Oliver Letwin]

rose—

[Sir William Cash]

I would love to give way to the person who generated this rubbish.

[Sir Oliver Letwin]

I thought it might be productive to intervene on my hon. Friend’s remarks, with literally all of which I disagree profoundly. On this one point, I think it might be productive because there is a fact about this that he will see if he looks at the amendment paper. The Government have tabled new clause 13, which many of us feel is a very sensible proposal and whose acceptance we therefore recommend. It specifically provides for a negative resolution statutory instrument to be substituted for an affirmative resolution SI, in order that it could be made immediately upon being deposited, rather than awaiting the approval of the House. That could obviously be subject to revision later under the negative resolution prayer procedure, but we would all have to be a gang of lunatics not to keep the exit day in line with international law if, as a matter of fact and for better or worse, the Prime Minister had agreed a given date of exit.

[Mr Baker]

Will my right hon. Friend give way on that point? [Laughter.]

[Sir Oliver Letwin]

Alas, my hon. Friend the Member for Stone has the floor. There has been a discussion about all this, and the Government’s new clause 13 is a perfectly sensible way of solving the one serious point that he has raised.

[Sir William Cash]

My right hon. Friend says that I have made one serious point, but he is in serious trouble. Every time he gets up and starts interpreting his Bill, that is likely to be taken into account if there is any judicial review of any of the provisions, as enacted. As all Ministers ought to know—he is the Minister in charge of this day and the various other things that he seemed to have assumed—every time he opines on the question of interpretation, the interpretations that he is making in in a rather fulsome manner could be used as a means of interpreting what is meant by the Bill. He ought to be a little more cautious, but I have waited until this point to say so, because he has said quite enough to put himself in serious difficulty on that account.

Having said that, with regard to new clause 4, any motion brought forward under clause 1(1) in the form set out in clause 1(2) may be amended in line with clause 1(3) only to include a date. In a nutshell, new clause 4 would prevent further amendments to Standing Orders and so on.

Moving on to new clause 5, because I want to get my points on the record—