EU Exit Day Amendment

Peter Bone Excerpts

Wednesday 27th March 2019 Commons Chamber

[Mr Walker]

I did not catch the whole of my hon. Friend’s question, but I am confident that the Joint Committee on Statutory Instruments has had a chance to look at the matter, and I welcomed its report at the beginning of my speech.

Let me be clear with the House that the power in the EU withdrawal Act can only be used to redefine exit day to the new day and times that the treaties will cease to apply in the UK. To specify any other day would not be a legal use of that power. It is critical that the House approves this instrument for the simple reason that the extension of article 50 has been agreed and is therefore legally binding in international law.

I understand that some Members have been of the view that we are still set to leave the EU on 29 March, but that is not legally the case. Owing to the agreement between the UK and the EU to extend article 50, the UK will remain a member state of the EU until at least 11 pm on 12 April as a matter of international law. If this instrument were not to pass, therefore, it would not change that fact, but it would lead to confusion across our statute book from 29 March.

[Mr Peter Bone (Wellingborough) (Con)]

I have this wonderful machine that says we are now two days, four hours, 17 minutes and 12 seconds away from coming out of the EU; this is a pretty good machine, actually. Is not the truth of the matter that, if we reject this SI tonight—I hope we do by a big margin—we will have come out in domestic law and we will be in breach of an international treaty for about two weeks, and that is why the Minister needs to get this through?

[Mr Walker]

I simply do not share my hon. Friend’s understanding or view of the matter. I respect his point of view, but I am afraid that he is not right on the legal facts.

A large volume of EU exit legislation, preparing the statute book for the moment EU law ceases to apply, is due to enter into force automatically on exit day. Without this instrument in place, there would be a clash in our domestic law whereby contradictory provisions would apply—both EU rules and the new UK rules simultaneously. In some cases, new UK rules would replace EU rules prematurely.

We estimate that tens of thousands of amendments to our domestic legislation will be made in the light of EU exit. These include changes that relate to the sharing of information, reporting requirements placed on businesses and public institutions, and the role of the European Commission in issuing licences and certificates. For example, let us take the amendments relating to the rights of lawyers to practise in the UK. If these regulations come into force on 29 March, EU lawyers who are not registered European lawyers immediately before exit day are at risk of committing a criminal offence if they continue to provide particular legal services in the UK. Other examples include UK operators being unable to comply with the EU emissions trading scheme and having to surrender their emissions allowances early, and the risk that firms stop trading to avoid legal breaches given their uncertainty about when new customs, excise and VAT regimes would kick in.

There are examples from across the statute book, but it is clear that without this instrument there would be significant confusion and uncertainty for businesses and individuals on 29 March.

--- Later in debate ---

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

I rise on behalf of the Opposition to support the motion. As the Minister made clear, this statutory instrument is a necessary one, and it should be entirely uncontroversial. As the House knows, in response to the Prime Minister’s letter of 20 March to the President of the European Council, the Council agreed to an extension of the article 50 process until 22 May, provided that the withdrawal agreement is approved by the House this week. The Council further agreed that if the withdrawal agreement is not approved this week, an extension until 12 April will take place to allow for the UK to “indicate a way forward” for its consideration, to which we hope the preceding debate and votes will contribute.

On 22 March, the UK’s permanent representative to the EU, Sir Tim Barrow, wrote to the President of the European Council to confirm agreement of the proposed extension arrangement under article 50(3) of the treaty on European Union. As such, the extension of the article 50 process until at least 12 April will now happen as a matter of European law, and as the Minister said, it is legally binding in international law. This statutory instrument merely aligns “exit day” as it is defined for the purposes of the European Union (Withdrawal) Act 2018 with the new dates that have been agreed. It is entirely correct that it comes after agreement on extension was reached between the two parties.

Indeed, the withdrawal Act makes clear that this sequencing—that is to say, that any new agreement between the parties as to when the treaties cease to apply to the UK must precede any change to exit day for the purposes of the Act—is precisely what is required. Section 20(4) of the Act provides that a Minister of the Crown may by regulations amend the definition of “exit day” to

“ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom”—

the operative word being “are”, not the day and time that the Government hope the EU Council would agree to. As such, logically, the Act makes clear that the Government could not propose a statutory instrument that would stipulate a date or dates for exit day different from the date on which the treaties would cease to apply, as agreed at the time. In short, the power to redefine exit day as set out in the 2018 Act passed by this House arises only if the date has already been changed.

[Mr Bone]

The Act refers to a date. Does the hon. Gentleman agree that it would therefore be more logical for this statutory instrument to state 12 April, and if that date needs to be changed, it should be changed subsequently? I do not understand how we can have two dates in the statutory instrument.

[Matthew Pennycook]

I thank the hon. Gentleman for raising that point, as he has in recent days. I think that it can be done either day—that is the short answer. There are different legal opinions on which creates the least amount of confusion and potential for legal challenge, but the Government have decided to do it this way, and we support the statutory instrument as a means to do so.

Those who take issue with the sequencing or the mere fact that this statutory instrument is before us at all today do so because they oppose in principle an extension to the Brexit process beyond Friday 29 March, presumably because they are either relaxed about leaving without a deal or positively wish for such an outcome.

--- Later in debate ---

[Kirsty Blackman (Aberdeen North) (SNP)]

I cannot promise that I will speak without hesitation, repetition or deviation, and I probably will not limit myself to a minute, but I will do my best on all those counts. An extension to the exit day is a good thing for several reasons, but the extension that has been asked for, which we are discussing tonight, is not the one that we should be faced with, and I want to look back at how we got into this mess.

Several Members have mentioned the fact that people are expecting us to leave on 29 March. However, when people voted in the June 2016 referendum, not one person mentioned 29 March 2019 as exit day, nor did they mention 12 April or 22 May. The people voted either to remain in or leave the EU. That was the proposition, and there was no discussion of the actual exit day. While I am on the subject, nobody during the referendum expected that the right hon. Member for Maidenhead (Mrs May) would now be the Prime Minister. No one expected this deal to be the deal before Parliament, because that was not discussed during the course of the referendum, and it is absolutely wrong for anyone to say that it represents the settled will of the UK people.

[Mr Bone]

I remind the hon. Lady that David Cameron said that if the referendum resulted in the UK leaving, he would trigger article 50 the day after. He did not do that, and he resigned.

[Kirsty Blackman]

The article 50 process is a two-year period with the possibility of extension. Triggering article 50 does not mean we leave exactly two years afterwards. There is a negotiation period, and anybody with an ounce of sense, for a start, would not have triggered article 50 until they were in a position to negotiate something with which Parliament and the people would agree, and they would have negotiated extensions so we do not leave before we are ready.

[Anna Soubry]

I am not aware of David Cameron ever having said that he would trigger article 50 the day after the referendum.

[Mr Bone]

He did.

[Anna Soubry]

I just said I am not aware of it, but I am certainly aware of the Leader of the Opposition saying it.

I am sure the hon. Member for Aberdeen North (Kirsty Blackman) paid a lot of attention to the leave campaign. Does she remember the leave campaign making it very clear to the British people that we would not be leaving the European Union before a deal on our future relationship had been secured? That absolutely has not been done by this Government.