European Union (Notification of Withdrawal) Bill

William Cash Excerpts

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.

--- Later in debate ---

[Mr Speaker]

Order. With extreme brevity now from both sides of the House, I call Sir William Cash.

[Sir William Cash]

First, this is a very simple Bill that is merely about notification and triggering. It is as simple as that. Secondly, the plain fact is that judicial review, which my right hon. Friends the Members for West Dorset (Sir Oliver Letwin) and for Forest of Dean (Mr Harper) dealt with so well, would be a gift to the courts and the lawyers. It really is completely inappropriate. My third point is on the question of parliamentary sovereignty. The fact is that the issue today is not about parliamentary sovereignty. In fact, it is about undermining a decision that has been made by a referendum of the British people that was itself conferred by a sovereign Act of Parliament. That is the distinction and that is what we need to concentrate on.

My last point is simply this: we cannot tie the Prime Minister’s hands. It is inconceivable that we would legislate, make that judicially reviewable and, at the same time, pass amendments the effect of which would be to introduce a Committee of Parliament that would decide on questions that have to be decided on by the Government. Our constitution operates by parliamentary government, not by Committee of Parliament, otherwise we would go back to the 17th century; and I invite people to look at the Barebones Parliament.