The House of Commons voted yesterday in favour on a statutory instrument to change the official ‘exit day’ in the EU (Withdrawal) Act from 29 March to either 12 April or 22 May, depending on whether MPs pass the Withdrawal Agreement. However, the House has failed to produce a majority for any of the Brexit options proposed under the first stage of the ‘indicative votes’ process. During the debate Sir William Cash made the following interventions:
The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Robin Walker): I beg to move,
That the draft European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019, which were laid before this House on 25 March, be approved.
First, I express my gratitude to the Joint Committee on Statutory Instruments for its report today. I do of course regret the necessity to have to introduce this instrument and would prefer that we were leaving the EU with a deal at the end of this week. I have voted on two occasions for that outcome, but the House has not. The Chancellor of the Duchy of Lancaster made it clear in the debate on 14 March that the Government would accept the will of the House and seek an extension if that was what Parliament voted for. Parliament then voted by 412 to 202 to approve a motion to seek to extend article 50. An extension has therefore been agreed with the EU and the Government are now committed to implementing it in domestic law.
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Sir William Cash (Stone) (Con): Will the Minister report to the House the outcome of this afternoon’s meeting of the Joint Committee on Statutory Instruments? Did the Committee consider the question of vires, as is within its Standing Orders?
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.
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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.
Adam Afriyie (Windsor) (Con): If what my hon. Friend says turns out to be the case and the Government did take the decision unlawfully or outwith the scope of this place, what would be the consequences?
Sir William Cash: The regulations are not binding and they are invalid in law—it is as simple as that. This is a serious matter. Let us view the question from the point of view of people listening to this debate outside Parliament. This is not just a question of process. It is about the fact that as I speak, under the provisions of the European Union (Withdrawal) Act, we intend to repeal the European Communities Act 1972 on exit day, which is 29 March. That is the law of the land, subject only to this rather esoteric question about the commencement order, which can be resolved in 30 seconds by a Minister coming to the Dispatch Box and saying, “This commencement order is now in force.” It is as simple as that. It does not require anything more than that.
We are talking about something that goes to the heart of the referendum decision itself—the democratic decision of the British people—which was that they wanted to leave the European Union. By the way, the House of Commons voted by 499 to about 120 for the European Union (Notification of Withdrawal) Act. It also voted for the European Union Referendum Act 2015 and gave the British people the right to make that decision. Contrary to the rubbish I hear all over certain parts of the House—that somehow or other remainers in Parliament have a right to take back that decision from the people—it was given to them and 17.4 million made it. This Parliament has no right to take it back from them.
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Mr Richard Bacon (South Norfolk) (Con): I never knew we were going to have such a treat this evening, so it is a great pleasure to have the opportunity to ask my hon. Friend a question. It so happens that I have a copy of the European Union (Withdrawal) Act 2018 with me. It does say in schedule 7—[Interruption.] Actually, Mr Speaker, it was completely by chance, because I had no idea that my hon. Friend was going to dilate on this matter. I heard the hon. Member for Brent North (Barry Gardiner) saying, first of all, the word “deviation” as if this were some sort of BBC panel show. Then I heard him, from a sedentary position, saying that he had no idea what my hon. Friend was talking about. It turns out that schedule 7(14) states very clearly:
“A statutory instrument containing regulations under section 20(4)”—
for the benefit of the hon. Member for Brent North, that is the section of the Act by which exit day is changed, so it is hardly a deviation—
“may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
It occurs to me—I invite my hon. Friend to agree with me—that my hon. Friend is doing an enormous service to this House.
Sir William Cash: I am extremely indebted to my very good and very close hon. Friend. I am so glad that he has made that point, because I am simply trying to do what I have always tried to do, which is to get past all the fog and ask the central question, which bears on the issue of the sovereignty of this House in relation to that European Union (Referendum) Act 2015, which gave the right to the British people.
The 2018 Act, to which my hon. Friend refers, is the moment in time when we made that decision in this House. Even my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) voted for the Third Reading of that Act. This was, therefore, a decision taken by this Parliament. So forget the fact that these indicative votes going on at the moment, which I regard as a parliamentary bag of liquorice allsorts, is an obfuscation of the fundamental issues. The draft regulations published a few days’ ago are not in accordance with the 2018 Act, since they do not change exit day to a particular date. Instead, they purport to change exit day to two different dates—the point Lord Pannick referred to—depending on whether the House does or does not pass a resolution that satisfies the European Council decision. I emphasise the words “does not satisfy the European Council decision”, Mr Speaker.
I have raised this matter repeatedly. We have been supplicating the EU. We have given in to the EU. My European Scrutiny Committee last March published a very good report in which we pointed out that we should not accept the terms of reference dictated to us by the European Union. That is where it all went wrong. It went wrong when the European Union (Withdrawal) Act was overtaken by the Chequers agreement, in a pre-planned operation inside No. 10 driven by the Prime Minister and her advisers, the effect of which was to undermine the repeal of the 1972 Act. I say “pre-planned” because the 2018 Act received Royal Assent on 26 June and within 10 days the Chequers proposals had come forward, which morphed into the withdrawal agreement and article 4, the effect of which is to make us subjugated to the rule-making of the European Union. That is what went on and it was done deliberately. It was going on while we were actually passing the withdrawal Act itself. I would describe it as a monstrous deceit on the British people.
I will go further. The course taken by the Government in seeking to pre-empt the affirmative resolution has definitely contaminated the lawfulness of their actions. It has, at a minimum, created serious doubts about the legal situation. I draw attention, for those who would be interested, to the views of the retired Lord Justice of Appeal, Sir Richard Aikens, who is entirely clear on this question.
I wrote a letter to the Prime Minister yesterday. I have not yet had a reply. She has not, in fact, answered my question about the ministerial code, which I have asked twice. As far as I am concerned, this statutory instrument should be voted down. I invite the Attorney General to explain whether, as a matter of fact—irrespective of whether he is prepared to disclose his advice, which I think he should publish—the Prime Minister did consult him, as required under the ministerial code.
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Sir Bernard Jenkin: This House has now embarked upon an unprincipled constitutional experiment. The Public Administration and Constitutional Affairs Committee, which I chair, recently heard from a retired Lord Chief Justice that nothing like this experiment has occurred since the recasting of the role of Parliament in 1688, which shows just how radical it is. I recognise the sincerity of many right hon. and hon. Members involved in the experiment, but they have resorted to the most questionable constitutional methods, which leave no Government or anyone else accountable for what is being decided. Who will the voters now hold to account for the outcome of the Brexit question?
Moreover, the process has been supported by those either embarking upon embellishing the discredited withdrawal agreement with ever greater restrictions on our right of national democratic self-determination or seeking to disrupt Brexit or stop it altogether in defiance of the manifesto promises upon which most of us were elected. I therefore regret to conclude on these matters, including these regulations, that this House is left with questionable democratic legitimacy.
Sir William Cash: I absolutely endorse what my hon. Friend has said. I remind Members, including those on the Conservative Benches, that they voted consistently for the Acts of Parliament, including the European Union (Withdrawal) Act 2018, that will give effect to all the enactments and that to pursue such an objective is effectively to reverse their decisions on specious and unacceptable grounds.
Sir Bernard Jenkin: I agree with my hon. Friend. I will vote against these regulations, and let me say something about the mess that we are now in. I can fairly claim to be one of the minority in this House who were the authors of the voters’ referendum decision, and I am proud of that. Most of us who voted leave have stuck with what we believe, one way or another. We are not the authors of what the remain majority in this House, with the Government, have made of Brexit, nor of what they continue to inflict upon our sad and disillusioned voters.
