EU Exit Day Amendment

John Bercow Excerpts

Wednesday 27th March 2019 Commons Chamber

[Sir Christopher Chope]

On a point of order, Mr Speaker. The Minister made light of my intervention, in which I expressly drew the attention of the House to what we had been told on Friday during an urgent question by a Minister of the Crown from his Department. If what was said then is wrong, when are we going to get an official correction and apology from the Government, because those of us who were in the House on Friday were certainly gravely misled by what was said?

[Mr Speaker]

I am very grateful to the hon. Gentleman for his point of order. Obviously I well remember the exchanges, and I am aware of the particular interaction to which he is referring. The normal principle applies: every Member is responsible for the veracity of what he or she says in this Chamber. If a Member inadvertently errs, it is incumbent upon that Member to correct the record. The Minister, perfectly reasonably, said that he had not seen what was said. However, it is not beyond the wit and sagacity of the hon. Member for Christchurch (Sir Christopher Chope) to arrange for a copy of the extract from the Official Report to wing its way to the Dispatch Box during the course of this consideration, and the Minister might then be in a position further to respond to him.

[Ms Angela Eagle]

On a point of order, Mr Speaker. Could you advise me on whether what Conservative Members are objecting to is the use of the royal prerogative, which allows us to sign up to international treaties using that power? If so, the logic of what they are arguing is actually that we should get rid of the Queen.

[Mr Speaker]

I simply say to the hon. Lady that it is not for me to offer an exegesis of what individuals might think about our constitutional arrangements, including the use or otherwise of the royal prerogative, but she has made her own point in her own way, with some panache, and it will be studied in the record.

[Mr Francois]

Further to that point of order, Mr Speaker. There are some people in this House who want to get rid of Her Majesty, but they are on the Opposition Benches, not the Government Benches.

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[Mr Speaker]

I am extraordinarily grateful to the right hon. Gentleman, but I wonder if we now might return to the relatively narrow ambit of the statutory instrument.

[Mr Walker]

Thank you, Mr Speaker. I shall be brief.

I am acutely aware of the huge amount of work undertaken by Members across the House to scrutinise the near 550 statutory instruments brought forward to prepare for exit and provide legal certainty. If this instrument were not to pass, that work would be undermined by the legal uncertainty created. If, on the other hand, we passed today’s instrument, the only thing that would change across all those SIs is the moment at which they come into force, aligning with the time of our exit so that they work properly.

I remain hopeful that the House will support the Prime Minister’s deal and that we will leave the EU on 22 May, with a short technical extension to ensure that we can pass the necessary implementing legislation. This instrument is, however, without prejudice to whether that is the case. I hope the House can agree on the necessity of this instrument and approve it, so that it can come into force and we can avoid serious confusion and uncertainty for businesses and individuals.

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[Sir William Cash (Stone) (Con)]

The first point I would like to raise is about the ministerial code and the actions of the Prime Minister. It is quite clear under the ministerial code—I am glad to see the Attorney General sitting on the Front Bench—that the Law Officers must be consulted in good time before the Government are committed to critical decisions involving legal considerations. Even if I was prepared to concede, which I am not, that the Law Officers do not necessarily have to divulge their opinions—actually, the Attorney General was obliged to do so by a resolution of the House on 4 December 2018—the question is whether, as a matter of fact, the Prime Minister, who today and two days ago resolutely refused to answer me, had consulted the Law Officers. I asked her that, but she twice refused to tell me, and the inference is that she did not do so. Is this not misleading the House? That question worries me intensely.

Having dealt with that serious issue, I also have to say that I take the strongest possible exception, as do many other distinguished lawyers, QCs and former judges, to the Government’s action in entering into a binding agreement in international law, which purportedly alters the UK’s exit date from the European Union in advance of the votes in each House on the draft regulations, the effect of which would alter exit day in the European Union (Withdrawal) Act 2018.

It has been suggested that the Act provides that the draft regulations can only be submitted to each House for affirmative resolution once the date of exit has been altered at international level. That is simply not correct. The provision for approval by affirmative resolution is free-standing in paragraph 14 of schedule 7, under which a draft instrument is to be submitted to both Houses. It was incumbent on the Government to respect the normal practice of allowing Parliament to approve any legislative changes before entering into a binding international obligation.

I was the shadow Attorney General during the Iraq debacle. On that occasion, it became apparent that there should have been consultation with Parliament on a matter of the gravest national importance. If I may say so, I obliged, or created the circumstances in which the then Attorney General submitted his opinion to the House. More recently, we had a similar situation with regard of the bombing of Syria. The idea that Parliament is not required to postpone approval of any legislative changes until we enter into a binding international obligation is well established in recent precedent.

The course that the Government have taken seeks to present Parliament with a fait accompli whereby Parliament is pressured to approve the draft regulations because, the Minister alleges, failure to do so would cause disconformity between the UK’s international obligations and domestic law.



Under our constitutional law, the power of the UK Government to conclude binding agreements with states and other international actors such as the European Union exists under the royal prerogative. It is a basic principle of our constitutional law that the royal prerogative may only be exercised consistently with the intention of Parliament. Any purported exercise of the royal prerogative that is inconsistent with the intention of Parliament is unlawful and of no effect in our internal legal order.

I am troubled by what could be the outcome of the meeting of the Joint Committee on Statutory Instruments today. That is why I intervened on the Minister. I asked whether there was proper consideration of whether the matters before it were intra vires or ultra vires. I do not know the answer because I have not been given the information. I ask the Minister to check whether the Committee considered the question of vires in relation to the issues before it today.

The intention of Parliament is to be found solely in Acts of Parliament. It is not shown by resolutions of the House of Commons. Unless an Act of Parliament says otherwise, such resolutions do not have effect. Under the principles of public international law, in article 46 of the Vienna convention, a state is entitled to invoke the fact that its apparent consent to be bound by an international agreement has been expressed in violation of a provision of its internal law, if that violation is manifest, which is defined as “objectively evident”, and concerns a rule of internal law of fundamental importance. Those criteria are clearly satisfied, so there is manifest violation of our internal constitutional law. The Government’s actions are completely unlawful.

It is abominable that we should be faced with having to vote on the specious ground of so-called uniformity, which the Minister has presented. I do not blame him personally. I ask him to forgive me for suggesting that he is taking advice from other persons who purport to be learned in the law. I am afraid that they are entirely wrong.

Only yesterday, Lord Pannick himself raised those very questions. Lord Pannick, of course, is a most distinguished lawyer. In fact, he was the lawyer for the plaintiff Gina Miller in the case that resulted in the requirement for the European Union (Notification of Withdrawal) Act 2017. Lord Pannick knows what he is doing. In fact, I and others instructed him in relation to the Rees-Mogg case back in 1993, so I know a little bit about the brilliance of Lord Pannick. He said:

“The legal concern which some lawyers have expressed is that a power to specify the day and time when the treaties are to cease to apply is not satisfied by identifying two possibilities; it is not possible, if this SI is enacted, to identify exit day simply by reading it.”—[Official Report, House of Lords, 26 March 2019; Vol. 796, c. 1721.]

It is worth considering the fact that Lord Pannick is not to be taken for granted and that he has raised serious doubts about the matter.

[Mr Speaker]

But I think the House will be relieved to know that it is to be spared a dilation on the matter of Lord Pannick’s involvement in the Rees-Mogg case—of which sparing I think I can be comfortably reassured by the hon. Gentleman.

[Sir William Cash]

Absolutely. I do not need to dilate on that question at all; I am simply using it as a point of reference. The draft regulations contain unlawful sub-delegation.

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[Several hon. Members rose—]

[Mr Speaker]

I call Sir Bernard—oh, I do beg the pardon of the hon. Member for Wallasey (Ms Eagle): I call Angela Eagle, and then other colleagues. I remind the House that there are fewer than 25 minutes to go.

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[Steve Double (St Austell and Newquay) (Con)]

And me.

[Mr Speaker]

The hon. Gentleman also wishes to contribute, so I know that the right hon. Gentleman will exercise an enormous self-denying ordinance.

[Mr Francois]

Thank you, Mr Speaker. Tonight, we are debating whether or not to extend article 50. The thing I would like to touch on briefly is whether the EU would ever countenance a further extension. I say that because from 2007 to 2010, when we were on the Opposition Benches, I was my party’s shadow Europe Minister. I did the Lisbon treaty, working with William Hague, and that was my epiphany; we had 14 days’ debate in this place and we could not change a single punctuation mark. That was when I realised that we had to leave. I hope the Minister will accept that in those three years I spent a lot of time visiting the institutions of the European Union, because that was my job. I came to realise that for many people in the EU, particularly, though not exclusively, in the Commission, what is often referred to as the “European project” has the status almost of a religious act of faith. People passionately believe in it, it transcends almost all other considerations and it must be promoted and protected almost at all costs. Very many people in the EU were utterly shocked when the UK voted to leave. They were absolutely stunned, because in their world what we had done was an act of heresy—it was apostasy to leave.

Many people in the EU believe we should be punished, not least pour encourager les autres. But what they are even more worried about is the UK taking part in European elections, which would bring 73 UK MEPs into the Parliament, many of whom, though not all, would be likely to be Eurosceptic. That would completely upset the calculations that they have made to reconfigure the new Parliament in order to keep out what they call the “populists” from eastern Europe and, for instance, the Lega Nord from Italy. That is why they would not accept the extension to 30 June. They insisted either on 22 May or 12 April, which is the drop-dead date for when we would have to begin European election preparation in the UK.

So my argument simply is this: I believe that for the EU protecting the integrity of the Parliament, which under the co-decision procedure under the Lisbon treaty has much greater power now relative to the other institutions, would be even more important to those who really believe in the project than trying to keep the UK in the EU, although many would like that. Therefore, if I am right, they would not countenance any further extension beyond the dates that have been given, because it would muck up the European Parliament and that would spoil Macron’s plans to federalise the EU. So my argument is that we should not be worried about a long extension, because I believe, although I cannot prove it in the House tonight, that they will never grant it. They do not want, in any circumstances, to go beyond 12 April because it means European elections that they simply cannot stomach, because there would be 35 to 40 Eurosceptic British MEPs who completely rip up their plan for the Parliament.

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[Steve Double]

rose—

[Mr Speaker]

Is the right hon. Member for Rayleigh and Wickford (Mr Francois) giving way, or has he completed his speech?

[Mr Francois]

I have finished to leave time for my right hon. Friend the Member for Wantage (Mr Vaizey).

[Mr Speaker]

It is very good of the right hon. Gentleman to advise me, but I was going to call Mr Double, and then Mr Vaizey.

[Mr Vaizey]

indicated dissent.

[Mr Speaker]

You can divide it between you.

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[Mr Bacon]

rose—

[Mr Speaker]

I call Mr Ed Vaizey.

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That the draft European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019, which were laid before this House on 25 March, be approved.

[Mr Speaker]

I will now suspend the House until the outcome of votes on motions—[Hon. Members: “Oh!”] Let me advise the House that it was very much the hope of our extremely dedicated and professional staff that they would be able to provide the results of the indicative votes to be announced immediately after the result of this Division, but that has not proved possible. I do not expect the suspension to be very long, but I will suspend the House until the outcome of votes on motions relating to the United Kingdom’s withdrawal from and future relationship with the European Union is available. The Division bell will be rung two minutes before the House resumes.

[Sir Patrick McLoughlin (Derbyshire Dales) (Con)]

On a point of order, Mr Speaker.

[Mr Speaker]

Order.