United Kingdom’s Withdrawal from the European Union

Geoffrey Cox Excerpts

Friday 29th March 2019 Commons Chamber

[The Attorney General (Mr Geoffrey Cox)]

I beg to move,

That this House notes the European Council Decision of 22 March 2019 taken in agreement with the United Kingdom extending the period under Article 50(3) of the Treaty on European Union, which provides for an extension to the Article 50 period to 22 May 2019 only if the House of Commons approves the Withdrawal Agreement by 29 March 2019; notes that if the House does not do so by that date the Article 50 period will only as a matter of law be extended to 12 April 2019 and that any extension beyond 22 May 2019 would require the UK to bring forward the necessary Day of Poll Order to hold elections to the European Parliament; notes that Article 184 of the Withdrawal Agreement refers to the Political Declaration between the UK and EU agreed on 25 November 2018, but that the EU has stated it remains open to negotiating changes to the Political Declaration; notes that the House is currently undertaking deliberations to identify whether there is a design for the future relationship that commands its support; notes that even should changes be sought to the Political Declaration, leaving the European Union with a deal still requires the Withdrawal Agreement; declares that it wishes to leave the EU with an agreement as soon as possible and does not wish to have a longer extension; therefore approves the Withdrawal Agreement, the Joint Instrument and the Unilateral Declaration laid before the House on 11 March 2019 so that the UK can leave the EU on 22 May 2019; notes that this approval does not by itself meet the requirements of section 13(1)(b) of the European Union (Withdrawal) Act 2018; and resolves that it is content to proceed to the next steps of this process, including fulfilling section 13 of this Act.

May I begin by thanking all Members for coming to the House on a Friday, and by apologising for the fact that we have had to convene today? The reasons we are convening today are partly to be found in the fact that today is 29 March, and as this House voted some months and years ago, it was today that should have been the day on which we left the European Union. However, we are—

[Mike Gapes (Ilford South) (Ind)]

Where we are.

[The Attorney General]

Precisely: we are where we are. I intend not to review how and why we have arrived at this point, but to explain the motion that the Government have placed before the House.

On 21 March, the Council agreed a decision that if the withdrawal agreement is approved, we have a legal right as a country to an extension to 22 May 2019. If this withdrawal agreement is not approved, that extension will expire on 11 April. That means that any other extension that this House might desire to be agreed by the Union would be at its discretion, subject to the veto of 27 leaders. Therefore, by this evening, if the 11 o’clock deadline expires and the agreement has not been approved, that legal right will expire with it.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

Will the Attorney General give way?

[The Attorney General]

I will in a moment, but not now.

This is, therefore, the last opportunity to take advantage of our legal right. The Government have taken the view that it would have been wrong to allow that time and date to expire without giving this House the opportunity to consider whether it should avail itself of the legal right or whether it should move into a position where any further extension will be at the discretion of the 27 leaders.

[Stephen Doughty]

Will the Attorney General give way on that point?

[The Attorney General]

I am not taking interventions at the moment; I will in due course. [Interruption.] I do not intend to take long. I want to set out clearly the choice before the House today.

The minimum necessary in order to secure this right, which is ours as a matter of law, is that the withdrawal agreement is approved. All negotiated exits from the European Union will require this withdrawal agreement to have been approved. The Union has made it abundantly clear, and the decision—

[Stephen Doughty]

On a point of order, Mr Speaker.

--- Later in debate ---

[Mr Speaker]

I am grateful to the hon. Gentleman, but that does not require adjudication by the Chair. The Attorney General will have heard the point of order and it is open to him to respond to it or not, as he thinks fit.

[The Attorney General]

I will take interventions. I did not refuse the hon. Gentleman’s; I was just asking whether he would be patient. Let me deal with his point now. The Government were considering asking that the indicative votes process continue this morning, so that we could have brought a motion this afternoon or this evening. That is exactly what the thinking was. There is no desire on the part of this Government to interfere with the process that the House is currently undergoing—on the contrary, the motion acknowledges it and notes it. I will come to it, if I may, in due course.

The minimum necessary to secure our legal right to an extension, therefore, is that this withdrawal agreement be approved. All negotiated exits that any Member of this House might conjecture or dream of will require this withdrawal agreement. Therefore the House has before it a clear choice this morning: it can either approve this withdrawal agreement, knowing that by doing so it secures its right to an extension; or it can decline to do so and know, in doing that, that by next week there will be no right to an extension, that any extension applied for will require some clear indication of the pathway forward and a stable majority behind it, and, thirdly, that it will be subject to the veto of those 27 member states.

That brings me to the motion before the House. This motion sets out clearly that it is not a meaningful vote pursuant to section 13(1)(b) of the Act. It is designed solely to give the opportunity to this House of taking advantage of the right that we have in international law. Indeed, it could not be a vote under section 13(1)(b) precisely because, Mr Speaker, you have ruled—a ruling that the Government fully respect—that a meaningful vote cannot be brought back while it poses the same or substantially the same question to this House.

Therefore, this motion has been designed to comply with your ruling, Mr Speaker, and in complying with that ruling, it cannot comply with the requirements of section 13 of the withdrawal Act. We put before the House the choice that the House faces today. What this choice will bring is certainty to thousands of businesses and millions of individual citizens throughout this country and to 1 million citizens of our country residing in the European Union. That is a not inconsiderable benefit. That certainty will be because, by taking the step of approving the withdrawal agreement today, the House will set out a clear and certain pathway to our departure from the European Union.

Let me come now to the political declaration.

[Several hon. Members rose—]

[The Attorney General]

I will not give way now, but I will give way to Members in due course. I want to set out the choice before the House.

As the motion acknowledges, the political declaration is open to change. The Union has accepted that it is open to negotiating change and that it will consent to discuss it, and so the House is undergoing a process at the moment of seeing whether a stable majority can be found for any political solution for the future. Of course, the Government respect that process: they acknowledge that it is continuing and they accept therefore that further steps will be necessary to approve the political declaration in this House.

This House will have to ratify not only the withdrawal agreement, but the political declaration. So the Government will give consideration as to precisely how the full package will be approved with the political declaration. One option will be to introduce the EU withdrawal implementation agreement Bill before this House. If this agreement is approved today, the Government will introduce the Bill within the next few days.

[Ian C. Lucas (Wrexham) (Lab)]

I am grateful to the Attorney General for giving way. Does he agree with me that the motion today flatly contradicts the European Union (Withdrawal) Act 2018, which specifically provides that both the political declaration and the withdrawal agreement must be in place before we comply with the Act?

[The Attorney General]

As the motion notes, this is not purporting to be a section 13(1) vote. This is simply designed to afford the House the chance of taking advantage of the legal right established by the Council decision. It is not a vote under section 13. There is nothing unlawful and certainly nothing procedurally improper about it. It is done to afford the House this chance.

[Hilary Benn (Leeds Central) (Lab)]

I am grateful to the Attorney General for giving way. I want to ask him about the consequences for any further extension of this motion passing today. If we get until 22 May but in the week leading up to that it becomes clear that we have still not reached agreement on a political declaration, and if we ask the EU for a further extension, is it not likely to say, “I’m sorry—you can’t have one because you did not take part in the European Parliament elections”? Therefore, defeating this motion today will at least give us the chance to make that choice with an extension until 12 April, when we could get a longer extension. We could not get that if we go to 22 May.

[The Attorney General]

I understand the right hon. Gentleman’s point. I say straightaway that the answer is that this is the only right we have to an extension. If we move into next week without securing it, we take the chance that among those 27 leaders there will be vetoes.

The right hon. Gentleman asks me about European parliamentary elections. Plainly, the stated position of the European Union is that we would have to organise and stand in those elections if we went beyond 23 May. Some lawyers, of course, disagree with that stated position and say that it would not be necessary, but that is the stated position of the Union. The point, however, is that we have the opportunity here to embrace certainty.

What the right hon. Gentleman’s prescription would have us do is take a chance on the good will of the 27 member states of the European Union granting us another extension. The withdrawal agreement—everyone knows; the right hon. Gentleman knows—is an essential prerequisite for our departure from the European Union. That may be why he does not want to vote for it. The official Labour position is that it does not disagree or object to a clause or article of the withdrawal agreement. The country looking on must judge this. The Opposition do not object; they have not emitted a peep of disagreement with a single clause or article of that agreement, and their position today is that they intend to vote it down. What kind of cynicism is that?

The opportunity now is for us to embrace the certain legal right of an extension to 22 May. That will give us the opportunity to give certainty to the country and allow the process of reconsideration of the political declaration to take place.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I am most grateful to my right hon. and learned Friend for giving way. I entirely agree that, of course, apart from the dates of 12 April and 22 May, any other extension for a longer period would have to be agreed with the other 27 member states, but was it not made quite clear when the Prime Minister was at the last European Union summit that an extension to 22 May was what was described as a “technical” extension for the purpose simply of bringing about what had been agreed fully and completely in this House? If we extend to 22 May without reaching that conclusion now, we run the serious risk that we will not be able to extend further at that date if we have not completed all parts of both the withdrawal agreement and the political declaration, but if we were to go back now and ask for longer, it would be given to us if we wanted to consider other options.

[The Attorney General]

My right hon. and learned Friend is a very distinguished and able lawyer, but I never knew that he had a crystal ball. The fact of the matter is that the European Union has not agreed to grant any longer extension. It will be subject to the veto of any of the 27, and it would certainly be subject to clear signs in the House that there was a stable majority for an alternative solution, and a stable way to deliver it.

[Several hon. Members rose—]

[The Attorney General]

I must make progress, but I will give way, particularly to the hon. Member for Rhondda (Chris Bryant).

The reason for the motion today, and for the form of the motion, is that it enables the House to secure this legal right. It is the case that the Government make that the agreement is required in any event. Members on the other side do not dispute the requirement for the agreement to be passed, so we invite the House to secure the certainty of the extension; to continue the process of the political declaration reconsiderations; to enable us, by 22 May, to ratify the domestic implementing legislation; and to conclude discussions on the political declaration.

[Chris Bryant (Rhondda) (Lab)]

The Attorney General’s argument is basically that this is a way to guarantee certainty for business in the country. However, if today’s motion is carried, there will be no certainty. The Government will not be able to ratify the treaty—I think that he accepts that they will not be able to do so—and a proper motion will still have to be introduced in this House, and the other House, including both sides. There will still have to be a Bill, which will be the subject of contentious dispute. There is no certainty—if anything, today throws more uncertainty into the process.

[The Attorney General]

There will certainly have to be a Bill. There will have to be a process of ratification in the House, which is why, if it votes for the withdrawal agreement today, it would be surprising if it did not vote to implement the withdrawal agreement. This is the step that we need to take.

[Several hon. Members rose—]

[The Attorney General]

May I move on to the withdrawal agreement? First, I will give way briefly to the right hon. Member for Birkenhead (Frank Field).

[Frank Field (Birkenhead) (Ind)]

If we pass the motion, given that we have business on Monday to continue to express our preferences, and if Mr Speaker were willing, could we not introduce a motion that captured what we decide today—if that is to accept the divorce settlement—with the motion that the Father of the House, the right hon. and learned Member for Rushcliffe (Mr Clarke), put to us to vote on this week, which came the nearest to being passed, so that we would have the divorce settlement and alternatives, including the customs union?

[The Attorney General]

Plainly, that would be open to the House to do. The problem is that we would have lost the legal right to the extension, so we would apply to the discretion of the Union for it to be granted.

Let me come back to the political declaration, because it is important that I should say a few more words about it. The process that is—

[Sir William Cash (Stone) (Con)]

On a point of order, Mr Speaker. I am seeking to catch the attention of the Attorney General, and wondered whether he might have a loss of hearing or something.

[Mr Speaker]

In my experience, the hon. Gentleman is both noticeable and audible.

[The Attorney General]

I will give way to my hon. Friend the Member for Stone (Sir William Cash), but let me complete my remarks on the political declaration. The process is being undergone by the House at the moment. The Government recognise that process and will in due course make decisions on how and if we can implement anything that might emerge from that. The whole point of the political declaration is that it cannot be negotiated with the European Union now.

What the Government are saying—and some amendments were tabled, I think, by the hon. Member for Stoke-on-Trent Central (Gareth Snell)—in connection with the next stage of the political declaration and its negotiation with the European Union is that there will be new mechanisms and new procedures so that the House can be properly consulted and have a role in the manner in which the political declaration, once it is finalised in the House, will be negotiated in that second stage. I can say to the hon. Member for Stoke-on-Trent Central—I shall give way to him in a moment—that the Government would have accepted the amendments that he tabled, with others standing in his name.

[Gareth Snell (Stoke-on-Trent Central) (Lab/Co-op)]

I thank the Attorney General for giving way. The amendment that I tabled with colleagues today was very clear. Any process for the House would have to be underpinned by legislation—it would have to form part of a withdrawal agreement implementation Bill, and there would have to be a clear role for the House to agree the future relationship before it was signed off with the European Union. Can he give confirmation at the Dispatch Box, if he introduces the Bill next week, that those measures will be in clear text, in that Bill, in black and white?

[The Attorney General]

We would have accepted the hon. Gentleman’s amendments. Clearly, in terms of the detailed working out of those amendments, in discussion—[Hon. Members: “Ah!”]. No, no, no—hon. Members can table an amendment. If it requires amendment to that legislation, we would obviously consider the detail carefully, but we would be minded to accept such.

[Sir William Cash]

I am most grateful to the Attorney General for giving way. He has referred on a number of occasions to the withdrawal and implementation Bill. He knows, as do the Secretary of State for Exiting the European Union, the Prime Minister and others, that the European Scrutiny Committee has asked repeatedly over the past month for a draft or a copy of the withdrawal and implementation Bill. He has just said that if the withdrawal agreement goes through, the withdrawal and implementation Bill will follow. If the withdrawal agreement is not approved today, will the withdrawal and implementation Bill come to this House and be introduced in any event?

[The Attorney General]

What I can say to my hon. Friend is that we would certainly give it very careful consideration. We have taken the view up till now that, before the withdrawal agreement is approved, it is premature to publish the Bill. There are certain elements of it that still remain to be finalised. However, as I have said to my hon. Friend privately, the moment we are in a position to publish it, he, as Chairman of the Committee, will be among the first to see it.

[Several hon. Members rose—]

[The Attorney General]

I must make some progress. I am very conscious that it is Friday and that we need to move forward as swiftly as we can.

The House can take a single, decisive step today to afford certainty to the millions of people throughout this country who are waiting for it and to have a short—not prolonged—extension that will bring our exit from the European Union to 22 May. There will be no further uncertainty. The political declaration can be resolved in that time. The ratification of the Bill can proceed with any amendments that might be forthcoming in connection with the subsequent negotiating stage.

I submit to the House the responsible thing. I ask the House to consider and reflect carefully, because what we have before us today is the legal right to extend. No other extension is guaranteed; every other extension would require European parliamentary elections, as the right hon. Member for Leeds Central (Hilary Benn) said. We are therefore at an important crossroads for the purposes of this nation’s future and its history, and I urge all Members of his House to embrace this opportunity now, when this withdrawal agreement, in its substance, is in no way objectionable to any Member willing to consider moving forward with it. In those circumstances, what conceivable point can there be now in not embracing this agreement, subject to further discussions on the political declaration? I urge the House to vote for this agreement.

--- Later in debate ---

[The Attorney General]

Will the right hon. Gentleman tell the House how, compliant with the Speaker’s ruling, he would have brought a vote that fulfilled the conditions he has just set out?

[Hilary Benn]

I will readily tell the House—although I will come to this very point later in my speech: the Government could choose, if they wished to, to seek to change the political declaration with the EU. It is because of the Government’s consistent failure to do that, because of its consistent failure to reach out across the House, that they find themselves in the difficulty they have created today. But I shall return to that point a little later.

We cannot separate the withdrawal agreement from the political declaration because both parts are essential to the process. It is like selling your house without having any idea where you are going to live afterwards. We would not have the withdrawal agreement without the political declaration. Article 50(2) refers to

“setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.”

My hon. Friend the shadow Solicitor General in his brilliant speech quoted the Prime Minister’s the statement on 14 January. I will repeat one small bit of it. She said:

“One cannot be banked”—

referring to the withdrawal agreement and the political declaration—

without the commitments of the other.”—[Official Report, 14 January 2019; Vol. 652, c. 826.]

Yet the motion before the House today explicitly tries to bank the commitments of one without the commitments of the other. I do not see how that can in any way be consistent with what the Prime Minister told the House of Commons on 14 January.

The second reason why I shall vote against the motion is one of the consequences of passing this motion. The aim—the Attorney-General was frank about it—is to gain an extension to 22 May rather than 12 April by satisfying the requirement of article 1 of the European Council decision of 22 March, which stated:

“In the event that the withdrawal agreement is approved by the House of Commons by 29 March 2019 at the latest, the period provided for in article 50(3) of the Treaty of European Union is extended until 22 May 2019.”

The problem, and my intervention on the Attorney General was trying to address this, is that if we passed this motion and got that extension, by the time we got to the week beginning 20 May, if at that moment we have not yet resolved the question of our future political and economic relationship and the UK decided that it needed to apply for a further extension, the EU is almost certain to refuse any such extension on the grounds that we have failed to take part in the European elections. That is because paragraph 10 of the decision of the European Council, which said:

“If the United Kingdom is still a member state on the 23-26 May 2019”—

which we would be if we asked for and were granted an extension beyond 22 May—

“it will be under the obligation to hold the elections to the European Parliament in accordance with Union law. It is to be noted that the United Kingdom would have to give notice of the poll by 12 April 2019 in order to hold such elections.”

Since it would be impossible on 20 May to give notice to hold elections on 23 May, it would be impossible to comply with this requirement. Therefore, what the motion before the House today means is that, if it were carried, it would in effect rule out any possibility of a further extension under article 50 beyond 22 May. So if, at that point, we have not reached agreement on the withdrawal agreement and the political declaration, this motion would mean the UK leaving without a deal on 22 May. The House voted this week by 400 votes to 160 to reject for the third time leaving with no deal. The only other way forward would be to revoke article 50 to buy ourselves a little bit more time, but the Prime Minister has repeatedly told the House that she would refuse to do so.

[Hilary Benn]

That would indeed be the consequence if the motion were passed. I will be perfectly frank with the hon. Gentleman. If there were a way round the problem of participation in the European elections, I think many people in the House would seek to find it, but it is clear that the EU in the form of the Commission and the Council and the legal advice has said that that is not possible, and therefore, in effect this is a no-deal motion.

[The Attorney General]

indicated dissent.

[Hilary Benn]

It is, and for that reason alone it deserves to be defeated.

The last point I want to make is that this Bill is displacement activity on the part of the Government. The Government should be turning their effort and attention to the real issue, which is our future relationship.

[Hilary Benn]

I reciprocate the respect for the Minister, who is doing a very good job, I have to say, in extremely difficult and trying circumstances. But this is half an agreement.

[The Attorney General]

indicated dissent.

[Hilary Benn]

It is. Half an agreement is being presented to the House. The Government should be focusing all their attention on the real problem, on this side of the House, which is the content, or to be more precise the lack of content, of the political declaration.