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—

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[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—

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[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

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.”

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[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.

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[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.

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[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.

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[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

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.

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[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

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

Tuesday 31st January 2017 Commons Chamber

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

After more than three hours of debate, a great deal of what needed to be said on either side has been said, and I do not intend to bore the House by repeating it. Like my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), I voted to remain; unlike him, I voted to promote the referendum and indeed played some part in bringing the Conservative party to the point of committing to a referendum. I shall therefore obviously vote tonight in favour of triggering article 50 in line with the outcome of that referendum. I shall also vote in the succeeding week against each and every attempt through amendments of whatever kind to bind the Government in any way—administratively or legally—because the Government must have the ability to negotiate flexibly and in the national interest.

In the brief minutes allowed, I would like to add one point that I do not think has so far come out of the debate: what we are doing if, as I suspect, we vote tomorrow night to trigger article 50. There has been some suggestion in some speeches that, somehow or other, this vote is not irrevocable or final, and that there will come a time when Parliament can decide whether it likes the deal that the Government have negotiated or whether it prefers instead to go back to the position of remaining in the EU. That is clearly contrary to what the Prime Minister set out in her speech, when she made it perfectly clear that, in her view, what Parliament will then be deciding is whether to accept the deal or not to accept it, in which case we will have to fall back on the WTO and other such arrangements because we will in any case leave.

I want to make it clear why I think the Prime Minister was right about that from three points of view. The first is the question of legal fact. None of us in this House is qualified to make a judgment about the law in that respect, but we have a piece of luck, which is that the Supreme Court has made a judgment on that. In the judgment of the High Court—a rather unusual High Court as it was composed—it was not totally clear, but in the Supreme Court judgment it was totally clear that the presumption of the minority as well as the majority was that this was an irrevocable act. The whole foundation of the legal case was that.

[Mr Bone]

My right hon. Friend is making a very powerful speech, but was it not agreed in the High Court that both sides accepted that it was irrevocable, so that the Supreme Court did not look at that question?

[Sir Oliver Letwin]

My hon. Friend makes an interesting point, but it seems to me that the difference between the two judgments is that the Supreme Court made it clear that in an irrevocable act, what was happening in its view was a fundamental change in our constitution, which is a different character of argument from what was made in the High Court judgment—and it seems to me conclusive. It means that the Supreme Court has ruled that, in its view, this is an irrevocable act.

In a sense, that is irrelevant to us, because we are a Parliament and not a group of lawyers. So we come next to the question of the democratic mandate. Is there a democratic mandate requiring that, when article 50 is triggered, the result—whatever it may be; an acceptable deal or a non-acceptable deal—should be that this country leaves?

In that regard, I thought that my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) and one of two others who spoke in similar terms were right. In fact, I know they were right, because I am one of the guilty men. During the referendum campaign, I made it perfectly clear to the many audiences whom I addressed that, in my view—and this is part of the reason why I voted to remain—an inevitable consequence of leaving the EU would be leaving the single market, we would have to reassert our control of the borders which would be incompatible with the single market, we would seek to negotiate with the rest of the world, and therefore we would have to leave the customs union. I made it perfectly clear that we might find ourselves unable to negotiate a free trade agreement—because that takes two sides, and it is impossible for one side to guarantee what the other side will do—and that therefore we might have to fall back on the WTO, which I think would be greatly to the disadvantage of this country.

I made all that clear, so it seems to me, when it comes to the question of the democratic mandate, that the people who voted to leave were voting with their eyes wide open, knowing that the consequence might be our falling back on the WTO. I should add, to be fair, that the leave campaign—or, at least, the more responsible and sensible people in the leave campaign—made that perfectly clear as well. It seems to me that, both as a matter of legal fact and in the context of a democratic mandate, there is an extraordinarily strong argument for believing that when we vote tomorrow night we shall be taking an irrevocable step, which should not lead Parliament to be under any illusion that at a later date it can go back to remaining if it chooses, and if it does not like the deal.

The third and, I think, overwhelming point is this: in the end, what matters most is the fate of our country. All these arguments are just arguments, but the fate of our country is a real thing that affects the men and women living in it. The truth is that the negotiating hand that our Government have will largely determine whether, in the event, we secure a comprehensive free trade deal of the kind that the Prime Minister rightly seeks. I know of no fact more certain than that if the House were to suggest to our counterparties in the EU 27 that we might decide at a later date that, if the deal offered to us was bad enough, we would prefer to remain, they would offer us the worst deal they could think of. It would be an inevitable consequence of their wanting to keep us in—and, although I do not know exactly why, many of our EU 27 counterparties do want to keep us in—that they would best achieve that by offering the worst deal possible if they knew that Parliament might then vote to remain.

I therefore think that we in the House have a very solemn duty to make it abundantly clear—not just to the people in this country, but to the EU 27—that tomorrow night’s vote will be an irrevocable act. We must make it clear that we are taking a step from which we cannot go back; that if those countries want a proper deal that is in the mutual interest, they should offer it; and that if we do not get that deal we will leave, because we have triggered article 50 and we will be out, and we will have to cope with the consequences thereafter. That makes tomorrow night’s vote one of the most important that we shall ever take in the House, and I take it with some doubt and hesitation, but I take it because I believe that, ultimately, the will of the people has been expressed.

Oral Answers to Questions

Oliver Letwin Excerpts

Thursday 26th January 2017 Commons Chamber

[Mr Walker]

The Prime Minister has talked about aiming for a frictionless system in which we can agree not to have tariffs or barriers, which is something we should all be aiming for in a new partnership between the UK and the EU.

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

In the light of the Prime Minister’s clear statement and the observations of my right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith), does the Minister believe that it might be sensible to set out, at an early date, the rules that will obtain for attracting high-quality and highly skilled talent into the UK?

[Mr Walker]

In the light of the Prime Minister’s speech and her ambition to create stability and certainty through this process, the sooner we can come forward with those proposals, the better.

The Government's Plan for Brexit

Oliver Letwin Excerpts

Wednesday 7th December 2016 Commons Chamber

[Edward Miliband]

My hon. Friend puts it very well.

What about the plan on immigration, including for citizens of this country who want to go and work or live abroad in the future? What is the vision? I think the Secretary of State for Exiting the European Union, who is no longer in his place, was nodding and saying that they would produce a plan on our approach to crime and terrorism, foreign policy, climate and energy policy, in respect of which Governments of both parties have taken a leadership role in Europe. What is the future for that? We do not know at the moment, so it must be in the plan.

Our motion is not a request for every dot and comma of the negotiations, to use the Prime Minister’s words, to be included. We are talking about basic and fundamental questions about the Government’s vision of our economy and place in the world, post-Brexit.

As my hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) said, the plan must be produced in January—soon enough for Parliament and, crucially, the British people to debate it properly. I had some time on my hands, so I looked up the consultations on which the Government have embarked since the 2015 general election. There were 1,200 in all, and they include everything from consultation on the code for small sea-going passenger ships to one on the regulation of traffic signs. The Government consult a lot. Are we seriously saying that the issue on which they are not going to consult the British people is the post-Brexit arrangements for our country? I would point out that this is less of a niche issue than the regulation of traffic signs—important though that issue is.

Here is the thing. The Government said that they want to bring the country with them. That is really important, and those words were echoed by the leader of the Scottish Conservative party, who said that we have got to listen to the voices of the 48%. But a Government cannot take the country with them if they do not tell the country where they are seeking to go before the negotiations begin.

I have no greater authority to cite on this than the current Prime Minister. In 2007, she wrote a very interesting pamphlet with somebody called Nicholas Timothy, who I believe is her chief of staff. It is called “Restoring Parliamentary Authority: EU Laws and British Scrutiny.” I am told that it has been taken off the relevant website, but fortunately the House of Commons Library has a copy. It says:

“Our feeble system of scrutiny undermines Parliament’s ability to check or restrain the Government’s action in Europe…We therefore need a system that gives Parliament real powers over ministers, enough time to scrutinise, and the transparency to restore public trust in the process.”

I could not have put it better myself.

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

rose—

[Edward Miliband]

I give way to the right hon. Gentleman, who might well have had a hand in the pamphlet or written many like it.

[Sir Oliver Letwin]

I am grateful. To clarify, for the benefit of the House, is the right hon. Gentleman arguing whether, after the scrutiny, Parliament or Government get to decide on how to proceed with the negotiations?

[Edward Miliband]

I believe, as the right hon. and learned Member for Rushcliffe said, that of course there should be a parliamentary vote—a mandate for the Government. That takes me precisely to further crucial points. The Government think that they will be weaker if they bring a plan to the House and get our support. I think the Government will be stronger in the negotiations, because they will be able to go to our partners in Europe and say that the plan is not just the Government’s, but one endorsed by the British Parliament.

The Government’s excuse relates to secrecy, and I think this needs to be dealt with. I do not think this argument stands up even to the most basic scrutiny. Let us think about how things will unfold. Once the formal negotiations begin, the EU negotiator will obviously have to confer with the 27 other Governments. Our Government’s intention and detailed proposals will remain secret for a few days if they are really lucky, but probably not even for a few days. The Government’s position will inevitably leak. The question before us is not whether the Government’s intentions are kept secret—which is apparently what the Prime Minister wants—but whether those in this Parliament and this country are the last people to know what the Government’s intentions actually are. It seems to me that there is absolutely no chance of the Government’s uniting the country, and taking the country with them, if they adopt that approach.

There is also the question whether the referendum decides the form that Brexit will take. I do not believe that it does, as many other Members have said, but it is not just me who takes that view. Daniel Hannan, one of the leading Leave campaigners, has said:

“Some Leavers claim the result as a mandate for whatever arrangement they happened to want.”

That is the truth about this, and there is no getting away from it. There are many different forms of Brexit, as we see in the numerous other countries that are outside the European Union.

I want to end where I began, with a point about the spirit of the debate. My right hon. Friend the Member for Leeds Central quoted some comments that had been made by Downing Street spokespersons on Monday, but they said something else which I find incredibly troubling. They said that those of us who are asking for transparency were not “backing the UK team”. In other words, we are not being patriotic. By my reckoning, that puts Sir John Major, Ruth Davidson and a number of Conservative Members of Parliament in the unpatriotic category. I am used to being called unpatriotic, and my dad has been called unpatriotic as well, but it really is something when Conservative Members are called unpatriotic. We know that things have become desperate for the Government when that starts happening.

We are not seeking proper scrutiny of the plans for Brexit because of our lack of patriotism; we are doing it out of patriotism, because we believe in the unity of the country. We believe that the country must be brought together. We believe that the cohesion of the country must be protected. This is the most complex and treacherous situation that our country has faced for a generation. Candour and transparency are not qualities that the Government should fear, but qualities that they should embrace, because they are the only route to uniting our nation, and we all have a responsibility to seek to unify the country.

I urge the Government not to choose a path of division, excluding the 48%, refusing to share their intentions and vilifying their opponents, including those on their own side. That is not behaviour equal to the moment: it is not behaviour that our country and the world need. We all have a responsibility to rise to the moment, and that is what we must do in the months and years ahead.

--- Later in debate ---

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

The right hon. Member for Wolverhampton South East (Mr McFadden) has made out that the essence of today’s debate is about whether the Government publish a plan and how it is scrutinised, and the shadow Secretary of State echoed that thought. I do not believe that is the debate we are having today; as was made clear in the response to me from the right hon. Member for Doncaster North (Edward Miliband), the former Leader of the Opposition, the debate we are actually having is congruent with the discussion going on in the Supreme Court, over the road. It is about a great constitutional issue: the old Leninist question of “who, whom?” The question is: should the Government of the UK, following a referendum, be able to conduct negotiations in the style and manner and with the intent that they decide, on behalf of the people of the UK, or should Parliament seek to constrain the negotiation, ultimately by passing a law constraining the activities of the Government in that negotiation? That is the issue we are facing.

I wish briefly to argue, in the time allotted, that if we think about it carefully, it is clear that it is impossible to conduct that negotiation successfully on the basis of a legal mandate given by Parliament. Why? It is because once a law is passed that determines negotiation, the negotiation as a whole, and in every particular and at every moment, is justiciable. We will end up with the Supreme Court and lower courts being called upon to decide, from moment to moment, in judicial review after judicial review, whether the Government have sufficiently transparently made clear every detail of the negotiation to satisfy the Court that the mandate of Parliament in the law is being observed; and whether they have fulfilled the terms of the mandate, once everything is transparent. Any Member of this House who believes this country will have an advantage in the outcome from such a process is severely misguided.

I voted to remain, and I still believe that would have been the right decision for this country. I believe we would be better off inside the customs union than out and better off inside the single market than out; I wanted to be free of the rest of the EU’s jurisprudence, but not of those things. I think we might have achieved that, but that world has passed; the referendum has occurred—we are leaving. If we are leaving, we have to negotiate an exit. The horror and the tragedy of the discussion we are having now is that, if it does lead to Parliament imposing those kinds of constraints on the Government, it will not be possible for the Government to do a trade deal with the remainder of the EU when we have left—by that, I mean left the single market and left the customs union, as we are bound to do by the logic of the situation—and it will not be possible for the Government to negotiate a trade deal to the advantage of our country because it will not necessarily be within the mandate, and that could leave us in the worst of all possible positions. So I urge Opposition Members to remove the cloak, cease to pretend that this is about transparency and plans, as we know perfectly well where the Government are going, admit that this is a constitutional argument and give up the attempt to control the negotiations line by line from Parliament.

[Helen Goodman]

When the right hon. Gentleman looks at the way the other European countries conduct their negotiations within the EU at the moment, he will surely acknowledge that, for example, the Chancellor of Germany goes to her Parliament and receives a negotiating mandate, and then goes to Brussels. It is that kind of process that we on the Labour Benches are looking for.

[Sir Oliver Letwin]

The hon. Lady is an old friend of mine, but she is totally misguided if she thinks that this is an analogous situation. This is the first time in history that a country has sought to remove itself from the EU. We are engaged in the most complicated game of multidimensional chess that any country has ever engaged in. To imagine that that can receive a legally binding negotiating mandate from Parliament, justiciable by the courts, is pure fantasy.

[Mike Gapes (Ilford South) (Lab/Co-op)]

Why is it, then, that the European Parliament can be involved in this process, but this sovereign Parliament, because of the problems that the Government have created for themselves, cannot have any say? That is a democratic outrage.

[Sir Oliver Letwin]

The reason is that the European Parliament is one of the counterparties to the negotiation. The counterparty in our case is the Government of the United Kingdom. We have had a referendum. The Government have to be able to carry through the effect of that referendum, and the plain choice we face is whether or not to constrain the Government. My argument is that, if we constrain the Government, we will end up with a worse result from the point of view of people such as me who were part of the 48%.

[Edward Miliband]

In November 1991, John Major came to the House to seek approval for his negotiating mandate—his plan, we might call it—for the Maastricht negotiations. I do not understand how the right hon. Gentleman can say that this is a terrible breach of our practices when John Major did precisely the same thing.

[Sir Oliver Letwin]

He did. The outcome was catastrophic. I wrote 100 articles inveighing against the Maastricht treaty. Had we never signed up to the Maastricht treaty, we would not now be in this position. The right hon. Gentleman is not citing a precedent that augurs well for the negotiations that are to come.

[David T. C. Davies (Monmouth) (Con)]

During those negotiations, did not John Major say,

“don’t bind my hands when I am negotiating”

with the European Union?

[Sir Oliver Letwin]

He did. He did not succeed in having his hands not bound, and I repeat that the result was a catastrophe.

[Mr Duncan Smith]

The Maastricht treaty and internal negotiations on being in the EU are wholly different from leaving the EU. The strategy for those was about remaining in the EU—all the rest was detail for debate. Here we are debating something strategically quite different: we are departing from the European Union, including the European Court of Justice and various other elements. Too much detail on that will delay the whole process and make it impossible to reach the agreement that my right hon. Friend is talking about.

[Sir Oliver Letwin]

I happen to agree with my right hon. Friend, but my point goes beyond that. It was never suggested, even during the Maastricht debates, that there should be a justiciable mandate. It has never been the case in the course of our island’s history that the prerogative power of making treaties was constrained by a justiciable mandate, still less in the case of a negotiation of this complexity, as my right hon. Friend has said.

[Anna Soubry]

I pay tribute to my right hon. Friend, as ever, for his careful and thoughtful remarks. He says that we are out of the customs union and that we will not be part of it, but people such as me and my constituents are asking whether that is right. Is not it right that we in this place should have a debate to determine whether that is the case?

--- Later in debate ---

[Sir Oliver Letwin]

My answer is no. It is not right that we in this place should decide those things, because ultimately they can be decided only as part of the negotiation. As a matter of fact, I think that the Government will be compelled by the logic of the situation to take us out of the customs union, but whether or not they do that has to be left in the hands of Ministers to negotiate as part of the complex of negotiations.

--- Later in debate ---

[Mr Dominic Grieve (Beaconsfield) (Con)]

As the Member of Parliament for a constituency that voted narrowly to remain, I have felt ever since the summer that my task is to help my colleagues in the Government to achieve Brexit in a manner that is satisfactory and will lead to the best possible outcome for everyone in the country, and today that is still exactly what I want to do. The difficulty, as I see it, is that what we have heard over the last two months in particular—the vitriolic abuse, the polemical argument without any substance, and the ignorance of some of the basic ABC of our constitution—has reached a point at which I sit in the Chamber and listen to utterances that border on the completely paranoid. The nadir, for me, was to sit one evening and hear a Minister of the Crown—not one of those who are on the Front Bench today—say that one of the Queen’s subjects who was seeking to assert her legal rights in the Queen’s courts, and who was, I might add, subjected to death threats as a result, was doing something, or had achieved something, that was unacceptable. If we continue like this, we are on the road to a very bad place.

In my opinion, while my duty as a Member of Parliament is to seek to uphold Brexit and help the Government to achieve it, that does not mean that I must suspend all judgment. On the contrary, we have a clear responsibility to scrutinise legislation, to ask awkward questions, to express our views and, if necessary, to intervene in the process if we think it is going off the rails to such an extent that it is no longer in the national interest. That is why I felt frustrated by the Government’s apparent refusal to come up with a coherent plan.

When article 50 is triggered, we shall be embarking on a process which, in reality, the Government themselves will have great difficulty in controlling. I certainly do not take the view that it is the duty of the House to micromanage the Government, and it has certainly never occurred to me that we should lay down prescriptive rules for what the Government should be trying to achieve, along the lines feared, I think, by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). I do not think that that is realistic. However, I do think we are entitled to know what the Government are intending to achieve, in broad terms, so that we can debate it and influence it. Some Members may then have to accept that they are in a small minority in respect of some of the legitimate issues that we can debate within the parameters of Brexit itself, and then help to sustain the Government as they go ahead with their work. The fact that the Government have that mandate and have the approval of the House, will, in my view, help them immeasurably in their negotiations.

[Sir Oliver Letwin]

My right hon. and learned Friend is making a powerful speech. Does he agree that if this House and the other place sought to amend the triggering legislation, that would have the effect of making the mandate justiciable?

[Mr Grieve]

It depends on whether we were seeking to limit the mandate in carrying out amendments. As I have not seen what the Government are proposing by way of primary legislation, I have no idea to what extent it might or might not be amendable, but it certainly would not have crossed my mind that one of the sorts of amendments I should produce would involve creating justiciable targets. I think my right hon. Friend knows me well enough from my time as a Law Officer to know that my views about declaratory legislation and targets are probably fairly unprintable—and certainly unutterable in this Chamber—and I do not recommend it to anybody.

On the question of where we are going after that and considering the issues around Brexit, I simply point out that some of the things said, even today by Government Members who I respect, seem to me to be rather fanciful. We have heard a lot about the sovereignty issue requiring us to withdraw from the European Court of Justice. I have to gently point out that if we are going to stay within the mechanisms of justice and security, which the Secretary of State said he believed was in the national interest, although our withdrawal from the EU will mean we will no longer be subject to the direct effect of the ECJ, decisions of the ECJ on interpreting the treaty will continue potentially to have force on us in this country. That is not surprising because we are signed up to over 800 international treaties which have arbitral mechanisms for resolving disputes.

So unless we start getting out of this fantasy element about Europe as a pariah entity, we are not going to start getting down to a realistic assessment of what it is in our national interest to remain adherent to and what it is in our national interest to withdraw from, even though we will be outside the EU and therefore not subject, for example, to direct effect at all.

Article 50

Oliver Letwin Excerpts

Monday 7th November 2016 Commons Chamber

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

Does my right hon. Friend agree that nothing in the High Court judgment in any way constrains the ability of Parliament to determine its own procedures, and that, in light of that, it would be possible for both Houses of Parliament to amend their procedures in such a way as to bring forward a Bill and to pass it, long before the Supreme Court judgment?

[Mr Davis]

Yes.