EU Exit Day Amendment

Matthew Pennycook Excerpts

Wednesday 27th March 2019 Commons Chamber

[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.

[Steve Brine (Winchester) (Con)]

I am grateful for the Opposition’s support. Is not the bottom line that we are extending article 50 via this SI tonight to avoid the damaging no-deal exit that my constituents in Winchester, and I am sure the hon. Gentleman’s constituents, do not want to see, and that this House has now expressly said on several occasions—I predict it will do so again this evening—it does not want to see?

[Matthew Pennycook]

I agree with the hon. Gentleman to the extent that we have to do everything possible to avoid a disastrous no-deal exit. This SI does not do that; the extension agreed by the European Council and the UK does it. This SI ensures that our domestic legislation aligns with what has already been agreed and that we do not create legal confusion.

It is certainly the case that no one, including those who have no problem with the extension, expected that this Government would fail so miserably that an extension of any kind would be required, but it was always a possibility. That is precisely why the EU withdrawal Bill, at least in its original form, was drafted to provide for circumstances in which a withdrawal agreement came into force later than 29 March, following an extension. As the Government themselves put it at the time in their delegated powers memorandum:

“Exit day will be dependent on the withdrawal negotiations with the EU.”

As my hon. Friend the Member for Wallasey (Ms Eagle) has commented, it was the Government’s decision to play politics with the issue of exit day for the purposes of our domestic legislation—constraining the flexibility provided for in the original drafting of the Bill by putting in a fixed exit date and time in a vain attempt to curry favour with the hardliners on their own Benches—that means we require a statutory instrument in the form before us. That said, it remains the case that it is simply not reasonable to question the legitimacy of the Government’s actions in agreeing to an extension to the article 50 process or the fact that these regulations have sequentially followed that agreement.

[Sir Bernard Jenkin]

I want to correct the hon. Gentleman’s account of recent history. In fact, the Government agreed to put in the date voluntarily, and then were blackmailed by the remain faction in our party to provide flexibility on the date. That is actually what happened.

[Matthew Pennycook]

I think the hon. Gentleman would agree with me that the original draft of the Bill did not include the date. The reasons why the Government put it in and the actions of the right hon. Member for West Dorset (Sir Oliver Letwin) in again helpfully coming to the rescue, I will leave to the hon. Gentleman and his view of what happened at the time.

It follows that, if the House votes against this statutory instrument, it cannot prevent an extension of the article 50 process until at least one of the two proposed dates. In short, and much to my delight, there is nothing that right hon. and hon. Members on the Conservative Benches can do today to force the UK out of the EU in two days’ time. All that would be achieved by voting against these regulations would be immense legal confusion, with two parallel sets of regulations in place—those deriving specifically and directly from EU law, and those made under the 2018 Act, which would diverge from it. As the Minister put it, our statute book would be in a complete mess. That is why this statutory instrument should self-evidently be supported, and why the Opposition will be doing so when we divide on it.