European Union (Withdrawal) Acts

Debate between William Cash and Oliver Letwin

Saturday 19th October 2019 Commons Chamber

[Sir Oliver Letwin]

rose—

[Sir William Cash]

rose—

European Union (Withdrawal) (No. 6) Bill

Debate between William Cash and Oliver Letwin

3rd reading: House of Commons & Committee: 1st sitting: House of Commons
Wednesday 4th September 2019 Commons Chamber

[Sir William Cash (Stone) (Con)]

The question I raise in this series of amendments relates in particular, as I said in my brief speech just now, to the extent to which the United Kingdom is put under a duty—an obligation —to be subservient to the European Union. I find this Bill deeply offensive for that reason alone, and, as I said earlier, our whole parliamentary constitutional arrangement is based on the fact that we make decisions in general elections by the free will of the British people in a secret ballot. When those decisions are taken and the results come out in the respective constituencies and a majority or otherwise is arrived at to decide upon the composition of this House of Commons, that is a free Parliament based on a secret ballot and on the free choice of the British people.

I believe that we are heading for a general election, and I think that that will sort out a lot of the problems we are currently experiencing with this Bill and, indeed, in relation to the whole question of satisfying the decision taken by the British people in the referendum, and indeed by this House on frequent occasions with the referendum Act itself by six to one, the notification of withdrawal Act by 499 to 120, and then again the European Union (Withdrawal) Act 2018. Every single Conservative MP voted for that Act, which clearly stated that we would leave the European Union and repeal the European Communities Act 1972 on exit day, which is 31 October. That is categorically the law of the land, so the whole concept of our democracy, which is somehow or other being subverted by this Bill, is actually already in place; this has been decided and I see absolutely no justification whatsoever for seeking to reverse it. I also see no justification for reversing the votes that my hon. Friends have themselves already cast over and over again in favour of not only the referendum Act—it was also in the manifesto—but the notification of withdrawal Act, and the withdrawal Act itself?

So I can see no justification for the majority in this House, because although this measure scraped through by 29 votes, we know where the votes came from. There is no doubt about it; they came from former Conservative Members of Parliament, and some who are unfortunately —I think by their own choice—in a position where they have had the Whip taken away from them.

I regret that; I saw it happen on a previous occasion with the Maastricht treaty, although it did not happen to me personally, but I can only say that if you live by the sword, you die by the sword.

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

indicated assent.

[Sir William Cash]

My right hon. Friend nods his head, because that is true, and that is how it goes.

Leaving the EU: Business of the House

Debate between William Cash and Oliver Letwin

Wednesday 12th June 2019 Commons Chamber

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

I am delighted to follow the right hon. Member for Twickenham (Sir Vince Cable). Much that needed to be said has already been said, so I shall not tediously repeat it. I want to make two points that I do not think have been sufficiently brought out so far in the debate and that might influence hon. Members who are still undecided about how to vote in a few minutes’ time.

First, almost everyone who has spoken has agreed that it would be wrong for the UK to leave the EU without a deal, without Parliament having the chance for a decisive vote. We have no way of telling in advance how that vote would go, or whether Parliament would have an alternative. It has rightly been pointed out that without an alternative we could not prevent no deal from occurring, and it also is questionable whether there would be a majority for any alternative. However, almost everyone has agreed that we need to leave open the option for Parliament to make its mind up in such a decisive vote.

It has been pointed out repeatedly that one possible means of preventing such a vote is a Prorogation. I am indeed concerned about that, but I accept that we might be in luck and have a Prime Minister who does not seek to use that route. However, I want to draw hon. Members’ attention to a point that has not come out so far, which is that Prorogation is not by any means the only way in which an incoming Prime Minister who was determined to leave with or without a deal—as many have put it—could avoid having a decisive vote. They would not need to go to the lengths of Prorogation; in fact, they would not need to do anything. If they introduced nothing to the House of Commons to give us an opportunity for such a vote, the House would not, in the absence of this motion and what follows it, have any such opportunity.

[Sir William Cash]

My right hon. Friend has just referred to this motion “and what follows it”. This is a phantom motion about a phantom Bill. Will he illustrate exactly what we are meant to be talking about, as he did before, because a few months ago there were five Bills—we ended up with a No. 5 Bill? Will he please tell us what specific wording he would import into this motion if it were to be carried to the next stage?

[Sir Oliver Letwin]

My hon. Friend will not need to wait very long. If, but only if, this motion is passed today, it will be proper for those who put it forward to publish a sixth Bill, which it will be the job of the House to inspect and on which the House will take a view. It could be that the Bill will be defeated, but that will be a question for the democracy of our Parliament.

[Sir William Cash]

rose—

[Sir Oliver Letwin]

I will not give way. I am sorry.

The point I am trying to make is that it is not necessary to prorogue to prevent a vote. The incoming Prime Minister would simply need to avoid taking any action. In those circumstances, we would leave on 31 October, and only after that would we need emergency legislation to catch up with the fact that we had left—

[Sir William Cash]

rose—

[Lady Hermon (North Down) (Ind)]

rose—

[Sir Oliver Letwin]

I will not give way. I am terribly sorry, but I promised Mr Speaker that I would be quick and I am going to be quick.

We would then all be forced to vote for that emergency legislation because we could not possibly leave the country exposed to the fact that it had left without a deal and without due legislative preparation. So it is perfectly possible for an incoming Prime Minister to avoid any decisive vote unless we force one, and that is the purpose of reserving the day.

My second point relates to that, and again I do not think it has fully come out in the debate so far. My right hon. Friend the Brexit Secretary has said that there is no reason to act now because there is no emergency—we are not facing immediate withdrawal without a deal, as we were when the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) and I put forward measures to prevent that and to ensure that we sought an extension—and of course he is right: we have until 31 October. That sounds like a long way away, but in parliamentary terms it is not. If we do not do these things now and on 25 June, and in the House of Lords thereafter, and if we do not have in place a process that leads to forcing a decisive vote in this House in early September on whatever the new Prime Minister puts forward, there will be no legislative time to do this, because the House traditionally sits for only two weeks in September and a couple of weeks in October.

That is well known to incoming Prime Ministers, and all the candidates are filled with sagacity and understanding of Parliament, so they will know perfectly well that they only have to occupy four weeks with doing nothing and we will be out. So, although it is not a fast-burning fuse, it is a bomb, and the fuse is already burning. If we do not put the fuse out now, we will not be able to disassemble the bomb in September or October.

[Sir William Cash]

Will my right hon. Friend give way?

[Sir Oliver Letwin]

I am terribly sorry, but I will not.

That is why it is wrong to say that this proposal is premature. It may be right or wrong to vote for this motion this evening, but it is the only time we are ever going to get, and I hope that my hon. Friends and Opposition Members who are wavering about whether to support it recognise that they will have to look back if they do not support it now. If we fail, as we may well do this afternoon, they will have to look back on that as the direct cause of, in all likelihood, our leaving on 31 October without a deal. It is because I do not wish to have that on my conscience that I have taken the uncomfortable step of signing a motion that has at the head of it the name of the Leader of the Opposition, whose party I do not follow and with whose policies I generally profoundly and radically disagree. However, this is an issue so important that it transcends party politics, and I owe it to my fellow countrymen to ensure that we do not descend into a no-deal exit without Parliament having had a decisive vote.

Business of the House

Debate between William Cash and Oliver Letwin

Wednesday 3rd April 2019 Commons Chamber

[Sir Oliver Letwin]

That is an instructive example. The last time around, when as my hon. Friend rightly says the Prime Minister sought an extension, in point of fact, she sought a double extension in a sense, because she then brought before the House a statutory instrument which, although not much considered, provided both for 12 April and a later date to be included in the adjusted domestic law, in the European Union (Withdrawal) Act 2018. There was, however, no direct discussion in this House of the validity or otherwise of the period for which she sought the extension. I do not complain about that because, as things then stood and as they stand today before the passage of this business of the House motion and the Bill, if they do pass this House, the Prime Minister has an absolute right to seek those extensions—without consulting anyone, actually. There is absolutely no need for her to do so, because it is a prerogative power. She might feel it necessary to mention something to Her Majesty, but otherwise there is no reason for the Prime Minister to tell anyone.

The Bill will provide for a transparent process not for consultation but for approval by the House of the application that the Prime Minister makes to the EU. I believe, as do others who support the Bill, that that is appropriate. Of course, one can have an argument about that—my hon. Friend the Member for Dover (Charlie Elphicke) might well disagree—but that is the purpose of the Bill, so I do not think one can deny that, from my point of view or that of someone who shares it, the Bill is therefore necessary.

[Sir William Cash (Stone) (Con)]

My right hon. Friend made an assertion just now about the law relating to the prerogative. He may recall the Gina Miller case and the great deal of powerful evidence to suggest that he is fundamentally wrong on that very question. Will he accept the fact that there are those who have a very different view?

[Sir Oliver Letwin]

The idea that after all these years of many charming conversations with my hon. Friend that I would not accept that he might often have a very different view from mine is of course fanciful. I entirely accept that he might have a very different view from mine—he very probably would do.

On this particular point, I do not think that the Gina Miller case is relevant, because the decision by the Supreme Court in that case was in essence based on the question of individual rights. The argument, whether right or wrong, was that in invoking article 50 there was an attempt to use the prerogative power in a way that the Supreme Court believed would arguably deprive individuals of rights. No one can argue that seeking an extension of the existing position, which is that we are in the EU, deprives anyone of their rights. I therefore very much doubt that the Gina Miller case could be used as a means of injuncting the Government to seek parliamentary approval.

In this case, in any event, we have empirical proof. As my hon. Friend the Member for Dover pointed out, the Prime Minister has already sought an extension, and she did that quite properly without asking the approval of the House of Commons. Therefore, she and the Government lawyers on this occasion obviously agree with me. I accept that my hon. Friend the Member for Stone (Sir William Cash) might well be right and the Government lawyers wrong, but at least I have some backing on the matter.

--- Later in debate ---

[Sir Oliver Letwin]

I am well aware that my hon. Friend did, and I welcomed her arrival in the Lobby. I am just pointing out that it was not me who designed an arrangement that meant it was necessary to take these actions.

[Sir William Cash]

rose—

[Sir Oliver Letwin]

I am terribly sorry, but I will not give way, because I have promised to give way to my right hon. Friend the Member for Chingford and Woodford Green and then to sit down.

European Union (Withdrawal) (No. 5) Bill

Debate between William Cash and Oliver Letwin

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

[Sir Oliver Letwin]

rose—

[Sir William Cash]

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

[Sir Oliver Letwin]

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

[Sir Oliver Letwin]

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

[Sir William Cash]

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

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

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

European Union (Withdrawal) Bill

Debate between William Cash and Oliver Letwin

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Sir William Cash]

For the sake of the record, I would be grateful to my right hon. Friend—I nearly said “learned” because he is doing such a great job—if he also looked at paragraph 5, which, in terms of interpretation, does relate to schedule 1 as well, and so cannot be left out.

[Sir Oliver Letwin]

Oddly enough, I was going to say that, so I will not do so now. I agree with that. While we are at it, I hope that the Solicitor General will also tell us that paragraph 3(1) of schedule 1 will be similarly adjusted, because, clearly, we need the same principle to apply to a private right of action as applies to the quashing of an enactment.

Provided that those changes are made, I think that the basic articulation of clause 5 and schedule 1, unlike clause 6, is in reasonably good shape and therefore I hope that, as well as the very splendid offer of a full analysis of the rights, we will get a very clear statement from the Minister about the kind of amendments that will be brought forward on Report. That would certainly make me more than willing to support the Government tonight.

European Union (Withdrawal) Bill

Debate between William Cash and Oliver Letwin

Committee: 1st sitting: House of Commons
Tuesday 14th November 2017 Commons Chamber

[Sir Oliver Letwin]

The hon. Gentleman did not allow me to intervene on him, but let me say now that, unfortunately, his point is wholly irrelevant to clause 6; it relates to the transition which will be covered in another Bill. My concern is about the continuing state of UK law following exit. This is not going to be resolved by the Government producing a White Paper. It has to be resolved by clause 6 being drafted in a way that creates the very legal certainty that the Government so admirably wish to create, and which they at present so abundantly fail to do.

[Sir William Cash]

My right hon. Friend is asking some very interesting questions, but that does not necessarily mean—he, or indeed any of us in this Chamber, not being a judge—that he is drawing the right conclusions. He is pointing to several questions that need to be raised, however, although he has not mentioned that clause 5(1) states:

“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day,”

and that must include this Bill.

Furthermore, my right hon. Friend has not quite taken on board what the Solicitor General said with respect to our application of the stare decisis method of interpretation, which the Supreme Court will be obliged to apply after exit day. So he is asking some interesting questions, but I do not think we can necessarily draw conclusions from them.

[Sir Oliver Letwin]

I am grateful to my hon. Friend for his comments, and I am very happy to leave it to the Government to draw the conclusions and answer the questions in due course. I do not think clause 5(1) helps at all, however, because my hon. Friend is right that it excludes the possibility of subsequent enactments being subject to the principle of supremacy, but in clause 5(2) it is equally clear that, so far as the retained law is concerned, the principle of supremacy remains, and therefore there may be judgments in the future that already existing law, where there is judged to be a conflict between an Act of Parliament and an ECJ ruling, should have the result that the ECJ ruling triumphs over the Act of Parliament. That is a perfectly possible and sensible position to adopt. It is not one my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) and I would like to see, and I doubt that my hon. Friend the Member for Stone (Sir William Cash) would like to see it, but it is nevertheless a perfectly tolerable position—and it then needs to be carried over for the Supreme Court just as much.

My point remains, however, and it is a simple one: that if the Bill is trying to achieve a hierarchy here, it needs to state what the hierarchy is, and in stating that hierarchy, it needs to make it clear who governs whom. At the moment, the Bill does not do that.

European Union (Notification of Withdrawal) Bill

Debate between William Cash and Oliver Letwin

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

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

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

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

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

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

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

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

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

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

[Sir William Cash (Stone) (Con)]

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

[Sir Oliver Letwin]

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

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

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