Exiting the European Union Committee
Oral evidence: The progress of the UK’s negotiations on EU withdrawal, HC 372
Wednesday 27 Mar 2019
Ordered by the House of Commons to be published on 27 Mar 2019.
Watch the meeting
Members present: Hilary Benn (Chair); Joanna Cherry; Stephen Crabb; Mr Jonathan Djanogly; Richard Graham; Peter Grant; Wera Hobhouse; Andrea Jenkyns; Jeremy Lefroy; Craig Mackinlay; Seema Malhotra; Mr Jacob Rees-Mogg; Stephen Timms; Mr John Whittingdale; Hywel Williams; Sammy Wilson.
Questions 3851-3922
Witnesses
I: Daniel Greenberg, Speaker’s Counsel for Domestic Legislation, Dr Kirsty Hughes, Director, Scottish Centre on European Relations, Dr Simon Usherwood, Deputy Director, UK in a Changing Europe programme, and Georgina Wright, Senior Researcher, Institute for Government.
Examination of witnesses
Witnesses: Daniel Greenberg, Dr Kirsty Hughes, Dr Simon Usherwood, and Georgina Wright.
Q3851 Chair: On behalf of the Committee, I welcome our panel for this morning: Daniel Greenberg, Speaker’s Counsel for Domestic Legislation; Dr Kirsty Hughes, director of the Scottish Centre on European Relations; Dr Simon Usherwood, deputy director of the UK in a Changing Europe programme and reader of politics at the University of Surrey; and Georgina Wright, senior researcher at the Institute for Government. You are all very welcome. As always with this Committee, we have a lot of ground to cover. At the beginning, there will be a lot of questions directed to Daniel Greenberg, and then we will move seamlessly into a wider conversation.
Mr Greenberg, my first question, just out of curiosity, is this. It was reported by Robert Peston yesterday that the Cabinet Secretary and the Attorney General told the Cabinet that if, at the end of the Letwin process, MPs pass a motion mandating the Prime Minister to pursue a new route through the Brexit process, the Government would be in breach of the ministerial code and the law if they fail to follow MPs’ instructions. I must confess that that came as a bit of a surprise to me, but since we have such expert witnesses before us this morning, I was wondering whether you had any observations to make on that report, Mr Greenberg.
Daniel Greenberg: Thank you for giving me no notice of that. I think the correct answer is this. If Parliament gave a clear and unequivocal instruction to Ministers, there would be a range of possible implications—legal, political and all the things that cross between the two—if Ministers chose to ignore those instructions. You have already in recent months had some involvement. You have played with the idea of contempt of Parliament, in relation to instructions given to Ministers. That is something that you have already explored—the House of Commons has already explored that. At what point you could turn that into a legal implementation process using, ultimately, contempt of court would depend on what the instruction was, whether it was clear and whether it was something Ministers can do. If you tell Ministers to fly to the Moon, I don’t imagine that the court is going to find them in contempt for not going there. Subject to those important qualifications, could it start a process that had legal implications? Clearly it could.
Q3852 Chair: That is very helpful. Let us take a very practical example of that, where the House of Commons has already expressed its view clearly twice: the motions we have passed rejecting leaving the European Union without any agreement—the “no to no deal” amendments. Given what you just said, is that a sufficiently clear instruction, in your view, to the Executive that the Executive should honour it? In fairness to the Prime Minister, she said in the House on Monday that, “unless this House agrees to it, no deal will not happen”. Those were the precise words that she used. It may indeed be a reflection of the point that you just made.
Q3853 Daniel Greenberg: Obviously I am being careful with what I say, because you want me to give technical legal advice and do not want me to cross over into a political commentary. At a technical legal level, telling somebody that something is not to happen is not an instruction to do a particular thing. The Miller judgment raised some important questions that may take a very long time to settle down, but one of the things that it confirmed is that you still have international law and domestic law, and it is still Ministers’ job to deal with international relations and to make treaties. Telling Ministers that you do not want a particular result is not the same as giving them a specific instruction in relation to the exercise of what still remains mechanically for Ministers to do.
Q3854 Chair: You mentioned the Miller case, which determined that the Government could not just issue the article 50 letter, but that Parliament would have to do it. What is your view on who could revoke article 50? Could the Executive do that? Would it require parliamentary consent and/or legislation, should that issue arise?
Daniel Greenberg: Let’s come at that in three different stages. Revocation of article 50 is an article 50 process; it is a European Union legal process and the Court of Justice of the European Union has given its judgment on what the European Union law is on that. Anything that our courts say is irrelevant to that, as is anything that you say. That is a matter of European Union law. That is clear, but the answer to your second question is less clear because the reason you have the majority in Miller was because it focused on the constitutional implications of issuing an article 50 letter.
You do not want an hour’s discussion of this, and I would not be the person to give it to you if you did. On whether the reverse is exactly the same, one line is to say, “Therefore, clearly, taking it back is exactly the same.” The other line is to say, “No, because taking it back means you have ended up doing nothing, and there is no net constitutional effect.” There is an argument to be had, and I do not think I can give you the technical level for a simple answer of yes or no. Therefore, it follows that I cannot give you a simple answer to whether parliamentary approval would be required, because that depends on whether the Miller reasoning is directly applicable to a revocation.
Q3855 Chair: Do any of our other witnesses want to comment on that point? No—fine. Lastly, we have not seen the draft withdrawal agreement Bill. Is it your expectation that we will need to see in that legislative visions relating to the Northern Ireland protocol and the backstop?
Daniel Greenberg: The simple answer is yes. For the qualified answer, let me say a word about the shape of the withdrawal agreement Bill. I think it is important to understand that there is everything possible between two extremes. You could have a very short Bill that says, “This thing is now part of UK law in the same way that the first proposition in the European Communities Act 1972 is.” At the other extreme, you could have a replication of every provision, plus expansion, plus implementation. I think it is reasonably clear to everybody that you will have to have something between the two, both for reasons of practical parliamentary time and for political reasons.
On your specific question, I think the best way for you to work at it now is to turn it on its head, and not say, “Do we expect to see a lot of detail on the protocol, the backstop and the financial arrangement?” I think you have to say, “Is it something that could work without detail?” Are the provisions of the Withdrawal Agreement self-executing, so that if you just said, “They have effect,” that would mean something in domestic law, or is there a gap that requires to be filled? If there is a gap, the only thing that can fill it is a detail either of the withdrawal agreement and implementation Bill, or statutory instruments under that.
Chair: That is helpful. Thank you very much indeed.
Q3856 Stephen Crabb: When the Bill is going through the Commons and Lords, is there a risk that amendments could be made to it that place us in breach of international obligations?
Daniel Greenberg: Again, the sort of simple answer to your question is yes, but I want to tweak it slightly. It is a question of whether the Bill will accurately give effect to our obligations under the implementation agreement. You talk about breach, but there are two issues here. First, are we accurately giving effect in UK domestic law to the provisions we have agreed to? If we have not, there is a separate question about whether that puts us in breach of our international obligations. Those are subtly different questions, but they could potentially have two different answers.
Q3857 Stephen Crabb: Would it be the role of the Speaker to decide whether amendments are out of scope, because they create such a risk?
Daniel Greenberg: It is always for the Speaker to decide whether amendments are in scope, and you would not expect me to tell you what I think the Speaker will decide. It will not surprise anybody if we remind ourselves that one thing that the Speaker considers when making decisions on scope is whether something makes sense or not. An amendment is disorderly if it is non-sense, and the context of the Bill determines whether a potential amendment is non-sense. Is it conceivable that the Speaker might decide that a particular amendment was disorderly because it did not produce a result that made any sense at all? Yes, it is. That is deliberately not a straight answer to your question.
Dr Hughes: One point that might come up later is that I suppose there are questions about if, for instance, there was an amendment to the implementation Bill to have another referendum. That would not change the substance, but it would require the Government to go to the EU and ask for an extension. For example, if the meaningful vote does come back this week and is passed, we know the deadline is 22 May and you could not have another referendum in that time. That is a different type of issue to the immediate one you are raising, but it would obviously add complications.
Daniel Greenberg: Your question was about correctly identifying scope, rather than selectability. Once you consider issues such as whether we could sensibly have another referendum, in my view you have crossed over from order and scope and into selectability. That might have the same result—the result might still be that the amendment is not selected—and I think that was why you focused on scope and not selectability.
Dr Usherwood: It might be worth remembering that the Withdrawal Agreement is not yet ratified by any party, so it is not definitively accepted anywhere. In terms of knowing what is acceptable within the terms of that set of commitments, that is not a done deal at this stage, so that is also a complication.
Q3858 Joanna Cherry: Daniel, in response to the Chair’s question you were speaking about the possibilities if Parliament were to give a clear and unequivocal instruction. There will be a range of options, and you talked about perhaps going into a contempt of court process. Would it be an option to raise an action—or lodge a petition, as it would be in Scotland—for specific implement of the Government’s obligation, to get an order from the court ordaining that the Government do x, y or z?
Daniel Greenberg: Again, I am giving a purely technical response to what is a purely technical question—you are not asking me what is politically feasible or desirable. The straight answer to your question is that the range of remedies available to the High Court in England and Wales and to the Court of Session in Scotland includes mandatory remedies. The range of remedies includes the possibility of telling Ministers to do something. Were the High Court or the Court of Session to tell a Minister or a Scottish Minister to do something and that Minister refused to do it, she or he would be in contempt of court. That is a straightforward technical answer to your question.
To add one thing, in a case of judicial review, the fundamental question that the High Court asks itself when it looks at ministerial action or inaction—I hope I am not saying anything novel here, and if I am, I certainly shouldn’t be—is, “Could any reasonable Minister act, fail to act or fail not to act in the way that is being discussed?” When it asks itself that, it is looking at reasonableness—Wednesbury reasonableness, a legal concept, which looks at all the circumstances of the case. I intend no offence by suggesting that I might be diminishing Parliament to a circumstance of the case; I am actually saying the opposite: that parliamentary activity cannot be less than a circumstance of the case.
Q3859 Joanna Cherry: Would they look also, as you implied in your original answer, at how clear and unequivocal the instruction was?
Daniel Greenberg: Absolutely. The Fire Brigades Union case is terribly important here. I know you have just had a Scottish decision that possibly extends the Fire Brigades Union reasoning slightly beyond what some of us might have expected, but the Fire Brigades Union case, which is about forcing the Government to commence an Act, remains the leading case on when Ministers who are given powers can be forced by the courts to exercise those powers.
To put it very simply, which is always dangerous with a complicated case, it remains the case that a power is a power is a power is a power; it is not a duty. However, there will be circumstances in which choosing to act in a particular way becomes irrational in administrative law terms because of the existence of a power or statutory provision. So as I said, it becomes part of the circumstances that the court looks at in making its administrative law decision.
Q3860 Joanna Cherry: You have had a chance to look at some of the motions tabled for the indicative votes today. Do you think it is possible that if any of those motions were passed by a majority of the House, such legal action might be a consequence if the Government or a Minister failed to act?
Daniel Greenberg: If you will forgive me, I would really, really rather not answer that.
Joanna Cherry: Okay, I will ask you something else.
Daniel Greenberg: That is very kind.
Q3861 Joanna Cherry: I want to ask you about something that the Leader of the House said in the Commons yesterday. She was asked by one of our colleagues, Peter Bone, about the statutory instrument that we will be voting on later today. She said: “I want to be very clear that a rejection of the statutory instrument that the Government seek to bring forward tomorrow would create a clash in UK law”—querying whether such a thing exists, but anyway—“because a large volume of EU exit legislation preparing the UK statute book for the moment that EU law ceases to apply is due to enter into force automatically on exit day. In international law, the exit date has already changed. The statutory instrument seeks to clarify that in UK law.”
Can you comment on that? Will you say whether it is accurate and really explain what she is getting at here?
Daniel Greenberg: In my view, that is an exactly accurate representation of the situation; I will take us through it in stages, if I may. Let us start with the parliamentary sovereignty point and get that out of the way. Of course, it is open to Parliament to pass any Act it likes. If Parliament wants to insist on an Act of Parliament that says exit day is whatever it wants, Parliament can do that, in the same way that Parliament can decree Nelson’s column to be an apple tree—but don’t expect anybody to buy the apples.
The analogy is important because our status as members of the EU, which is what this is about, is, so far as Parliament is concerned, as much an external event as the circumstances surrounding Nelson’s column. Our membership is controlled by article 50, and article 50 contains within it the procedure for the extension of the period at the end of which exit day falls. That process under paragraph 3 of the article—that extension—has taken place. The European Council has made its decision. The United Kingdom has formally acceded—consented—to that, so that the requirements of paragraph 3 of the article have been satisfied.
Remember that the 1972 Act continues in force. Section 2(1) of the European Communities Act 1972 says that EU law is UK law. I accept your point about UK law but let us for the moment put that to one side. That is the proposition in section 2(1) and that remains the case. That includes everything in article 50 and the process of article 50. So, as a matter of UK law, we are now required to give effect to the whole of EU law.
Picking up the Government’s last point—this is purely a technical commentary, Chair—if the instrument were not passed, it would be exactly true to say that there would be a mismatch between the reality of EU law and our membership status; not just the European Union (Withdrawal) Act 2018 but a number of statutory instruments that have been passed under it, and a number of other Acts that have been passed by reference to it.
Picking up your point about breach—and this is purely a factual observation—one of the possibilities of the failure of exit day in our domestic legislation to reflect the EU reality is that some of our legislation might no longer be compliant with EU law and, in exactly the same way as with any other section 2(2) legislation, we might be in breach of our European Union obligations, which continue as a matter of section 2(1), which has not yet been repealed.
Q3862 Joanna Cherry: So when the Leader of the House said that in international law the exit date has already changed, did she really mean that in EU law the exit date has already changed?
Daniel Greenberg: Well, it certainly includes that. If you are asking me to speculate on other possible international law implications, I would like to know a bit more about what you want and how you see the distinction. I am not sure I see a practical distinction, but maybe I am missing something.
Q3863 Joanna Cherry: I am just trying to understand. Say for some reason that Parliament does not pass a statutory instrument today: is it correct to say that, as a matter of EU law—so far as the EU is concerned and we are still in the EU and subject to it—the exit day has changed, regardless of what the British Parliament does?
Daniel Greenberg: Correct.
Q3864 Joanna Cherry: But if the British Parliament fails to change the exit day today, then all sorts of legislation will come into force on Friday or Monday—I’m not sure which—that will mean that we will be in breach of EU law.
Daniel Greenberg: I think that is what I just said—that is what I meant to say.
Joanna Cherry: I am just trying to understand it myself. That is what you said, but I am repeating it back to you to make sure I have understood it properly.
Q3865 Mr Rees-Mogg: Chair, may I come in here? Although the withdrawal Act repeals the ’72 Communities Act, that repeal does not take effect until EU law allows it to take effect. What happens if the—
Daniel Greenberg: No. If I may say so, I do not think that that quite does justice to the position. May I tell you what I think the position is on that?
Section 1 repeals the 1972 Act on exit day. Section 1 has not yet been brought into force. Now, speaking technically and hypothetically, if the United Kingdom wished to leave the European Union without any regard to the European Union mechanisms for leaving the European Union—you will remember that this was Lord Donaldson’s discussion for many decades—would it be theoretically open to you to pass an Act of Parliament that did not talk about exit day or article 50, that repealed the whole of the 1972 Act, and that said, “We, as a sovereign state, are leaving the EU. We will put up with whatever the international law implications of that are, but, as a sovereign state, we’re resiling from our membership of the EU and we’re not interested in article 50 or anything else”? Is that still something they could do?
In my view, the technical answer is yes. Whether that—well, you get all the qualifications, but yes, that is something they could do. But that is not what they have done here.
Q3866 Mr Rees-Mogg: But until exit day is changed, the ECA ’72 is repealed on exit day, at which point the direct effect of EU law—
Daniel Greenberg: Well, no.
Q3867 Mr Rees-Mogg: Okay. That is the bit I would like explained, please.
Daniel Greenberg: The reason it is not is that, subject to correction from anybody else in the room, my understanding is that section 1 has not yet been commenced, and therefore—[Interruption.] Thank you, Chair; I am confirmed from on high. So it does not matter when exit day kicks in; section 1 still does not kick in, because section 1 requires another thing to trigger it. It requires two things: its commencement and exit day.
Chair: That is extremely helpful. Joanna, you had one final little question on devolution, and then we will need to move on.
Q3868 Joanna Cherry: Yes, because I think Hywel is going to follow up on devolution. You will remember that the Prime Minister made certain promises about how things will be conducted in the future once her Withdrawal Agreement is passed. One of the promises was that devolved Administrations and devolved Governments would be given a role in the negotiation of the future trade relationship. Could the WAB—the withdrawal agreement implementation Bill—make any legal provision to ensure that the devolved Governments have a formal role in future trade relationship negotiations?
Daniel Greenberg: The obvious and clear answer to that is yes. I would just risk one perhaps slightly peripheral comment, and that is that the implementation in statute of the Sewel convention has not, if I may say so, been an unmitigated success, because—again, it was relevant to Miller and it has been relevant since in your own litigation—it tried to fall between two stools. I do not think I am trespassing into politics here; I think this is still a perfectly technical answer to your question. What you need to make sure—what you all need to make sure—is that you do one of two things: you either have a legal obligation that is legally enforceable, or you have one of the many other things we have, like a duty to have regard to or a duty to consult. We know about those things. What you want to avoid is having something that falls between the two. I think that is a straightforward, technical warning.
Chair: That is really helpful; thank you.
Q3869 Stephen Timms: I would like to switch the focus from European law to European politics. The European Council said that it had agreed to an extension until 12 April 2019 and indicated that it expected the UK to indicate a way forward before 12 April 2019 for its consideration. If the Withdrawal Agreement is not approved by Parliament, what do you think the European Council would want from the UK in order to agree to the long extension that has been mentioned from time to time?
Dr Hughes: I am sure we all have views on that—maybe similar and different. I think the European Council is looking for clarity. It is not just looking for a request to have a longer extension, however long you may or may not want—whether that is six months, 12 months or two years. They want to know what it is for. That has obviously been said several times. Types of things it might be for would be to change the Political Declaration in some way, or it might be to hold a general election. We have some idea how long it takes to hold a general election; we can discuss how long it might take to change the Political Declaration, although we know it was actually drawn up rather quickly, and the changes to the backstop in the protocol and broadening it out to a customs union happened within weeks. As you know, a referendum would take longer. I think they are looking for greater clarity.
Of course then the question is, what if they don’t get greater clarity? I don’t think we can rule out no deal on 12 April. It is still, for the moment, the default. Do the EU27 want a no-deal Brexit? No, I think they don’t, but they don’t want uncertainty carrying on indefinitely. They don’t want what they see as the current situation of things going round in circles going on indefinitely.
Obviously, there is a real issue here around the European Parliament elections. That has been discussed in a UK context, in terms of whether the UK with a longer extension would have to take part—hence the 12 April deadline—but there are other issues for the European Council. These are very important European Parliament elections for the European Council, not least with the growth in support for, especially, right-wing populist parties in the EU. That pushes the European Council in two different directions.
In a way it would like to bring the matter of Brexit to a close, or at least this stage of it to a close, but obviously, if we have a no-deal Brexit on 12 April, that is going to create a lot of chaos—more here than anywhere else in the EU, but there will be a lot of impacts, which are then going to spread into the European Parliament election campaigning period. That would quite likely include the presumption, by at least some in the European Commission in Brussels, for instance, that the UK would return rather quickly—within weeks, probably—to the negotiating table to try to resolve some of those issues.
So, if you think that the EU27 do not want Brexit dominating their European Parliament election campaigns, you might think they would ideally be interested in a longer extension, but none the less, does that mean that it is a bluff that they want some degree of clarity in that request if it comes? I don’t think it’s a bluff, because I think there is a real sense in the EU27 that this has to move on in some way—whichever direction it is going, it has to move on.
Georgina Wright: I think Kirsty has covered all the ground, and I would just echo what she said. The conditions would be, first, that the UK would need to hold European Parliament elections if it intends to remain a member state at least past 1 July, because that is when the new European Parliament will sit for the first time. There is a real sense in the EU that they don’t want Brexit to impact on what they call the smooth running of the institutions. Obviously, if the UK remained a member state but didn’t have elected representatives in the European Parliament, that would be problematic.
Secondly, they would want to make sure that the extension does not delay a decision, but serves to make a decision. That is what they want to know—is this really going to make a change to whether or not the Withdrawal Agreement passes in the UK?
Thirdly, Brexit negotiations aren't taking place in a vacuum. They have really important discussions coming up, including on the EU budget and how that is going to be spent. If the UK remained a member state, it would have a veto over that. So those are the other considerations that they are thinking about as well.
Dr Usherwood: I think, to summarise, what the EU would be looking for is more about process than necessarily about outcome. It wants to know that there is a process in place in the UK. Thinking about the potential amendments to the Political Declaration, that is for future negotiations. That is, by definition, open and subject to discussion. It is really about having clarity about how the UK reaches some kind of end point in the process, rather than what that end point might be per se.
Q3870 Stephen Timms: How anxious do you think EU member states are to avoid a no-deal Brexit? Kirsty, you made the point that the biggest damage—assuming that there is damage—will be here in the UK, but there would be impacts elsewhere. How keen will they be to avoid that happening?
Dr Hughes: It is obviously not something that they want to happen. There will be impacts elsewhere. It varies across the different member states, depending on the amount of trade they have with us. It obviously affects countries like France or the Netherlands, where there is a lot of trade through the ports, and Ireland especially, in terms of both the economics and the border, and therefore the peace and security issues. I think the EU27 see that this cannot carry on forever, and they are getting the message from at least some significant chunk of businesses, for instance, that of the outcomes that you could have, no deal is not the preferred one, but indefinite uncertainty is not okay either.
Georgina just mentioned the first sitting of the European Parliament. You don’t want a no-deal Brexit either on 22 May, just before the elections start, or on 30 June, overshadowing the start of the European Parliament elections and budget decisions. There was a long extension to try to forestall that. You have also got issues of appointing the new Presidents of the Commission and the Council.
Just one last point for now. We are talking about the 12 April deadline, but the EU said that they want the UK to tell them where they are going next before then. I think the UK—the Government and Parliament—need to decide by when they are going to decide something. It cannot be that at the last minute on the 12th, they call Brussels and say, “Therefore that means that we would like a year’s extension.” Any extension will come with some conditions—perhaps political conditions relating to how the UK behaves around its budget and presidential choice discussions, for instance. To my mind, that means a decision and a request to the EU and telling the EU what we are doing by, I would have thought, the start of that week at the latest—say, by 8 or 9 April.
Q3871 Stephen Timms: Just over a week’s time. Just one final point from me. It was striking, ahead of the European Council, that the President of France was taking a harder line than some others. How do you think we should interpret the French perspective on this?
Dr Hughes: I was in Paris a few weeks ago, and I would interpret it broadly in line with what I have already said: “This cannot go on indefinitely, we cannot cope with this apparently circular, repetitive discussion in the UK. We need this to move on.” I don’t think that the French are necessarily opposed to a longer extension. The point I have made about not wanting the Brexit discussions and problems to overshadow the European elections is felt very keenly in France.
Obviously, European elections are a par excellence where national and European politics come together, especially at this time of growing populism. Those are the issues. Again, it is repetitive, in the sense that Macron and others in France are concerned about things like the budget and whether the UK would take a back seat in appointing the future Presidents. There is some concern—I have certainly picked it up in Brussels—about the UK’s behaviour at the moment in the Council and the extent to which the UK is or isn’t informing its EU partners about its ongoing trade negotiations, for instance.
Georgina Wright: Can I very quickly add something on President Macron? Ultimately, yes he is very concerned about EU elections. He made it very clear when he was campaigning to become President that they would play a crucial role, that he would prioritise them, and that he wanted a stronger Europe, because that made for a stronger France. Again, in the broader context of how it plays out in his domestic agenda, EU elections are really important. He doesn’t want Brexit hanging over that. If the UK remains a member state, it has to participate. It is just about having clarity on that point.
Ultimately, France is not the only member state to decide what happens. You saw that clearly during the European Council, when they came together and hammered out a position, and it was a compromise. Finally, I suspect that France is not the only member state that is hard-line on this and that other member states are supportive of France’s position, which is that they need clarity now and need to know what is going to happen over the next couple of months.
Q3872 Mr Djanogly: Mr Greenberg, there are six remaining Brexit Bills yet to complete their passage through Parliament—I do not think they include the withdrawal agreement Bill. If the UK were not to pass those Bills before we leave the EU, what are the Government’s options to fix gaps in terms of powers under the European Union (Withdrawal) Act 2018?
Daniel Greenberg: I would first remind you that one section of the withdrawal Act that is in force is section 9, which is entitled “Implementing the withdrawal agreement”. That is a regulation-making power. The relationship between that and the withdrawal implementation Act has yet to be discovered because we do not know what that Act will say. I therefore remind you that there is a mechanism on the statute book for making some regulations for dealing with the Withdrawal Agreement.
The next thing to say—again, I do not think that you are expecting me to say anything very surprising here—is that, doubtless, what the Government would have to do in that case is identify and prioritise the biggest gaps fast and give themselves powers for which the parameters are sufficiently clear but that are broad enough to be able to move very fast. If you are asking me to talk about the timing of emergency legislation—obviously, not in detail—I remind you that you can get a Bill through both Houses in one day if that is what everybody wants.
Q3873 Mr Djanogly: That leads me on to my next question. If we got the Prime Minister’s deal through the House this week and went on to the second of the EU leaving dates, other than probably having to cancel part or all of the Easter recess, what would that actually mean for parliamentary scrutiny?
Daniel Greenberg: The sting of that question is in the word “scrutiny” at the end. Okay, I get that; I won’t dodge it completely. Let us take the first bit. As I say, you would prioritise. “We need these Bills; we need these powers; and we have got these days to get them through.” You would presumably prioritise them in order of non-contentiousness.
If I may say so, Chair, it would actually be very much like wash-up at the end of a Session—that is how I imagine it. The usual channels would get together and would agree, “What are the bits we all agree that you have got to do? Let’s get those done first. Are there bits that we are still rowing about? Leave them over.” That is what would happen.
To avoid completely dodging your point about scrutiny, I don’t accept the implication—if there is one—that you could not do adequate scrutiny. We have all done emergency legislation and I think that the key is always to watch the balance of hierarchy between primary, subordinate and quasi-legislation. I am not saying anything political if I say that if you presented a Bill this big to both Houses and asked them to pass it in a day, everybody would agree that you are limiting the normal scrutiny process. That is not a political statement; it’s obvious. Equally, you would agree that we all know that it is possible to identify the key points in a piece of primary legislation and give them adequate emergency scrutiny in an emergency context.
Q3874 Mr Djanogly: Would any of the other panel members like to comment on the scrutiny aspects that we might have to be good at?
Dr Hughes: I think that there is a question about that. Obviously the European Council conclusions last week said that if the meaningful vote is passed this week—if the Withdrawal Agreement is passed this week—the extension until 22 May is on offer. After this week, that offer is no longer there, and the only offer on the table is 12 April. Having said that, if the Withdrawal Agreement and deal were brought back and passed later than that—the European Council can’t say that we cannot do that—the UK would presumably ask again for that date, but would the European Council give it? In other words, how hard is this removing of the date of 22 May at the end of this week? I suggest that it is perhaps not that hard. Earlier I spoke about the possibility of adding a referendum into the implementation Bill as it went through, but if that happened after 12 April, we would have a problem because it would then be too late to participate in the European parliamentary elections. So even if we were given a longer extension, we would have a problem.
Q3875 Mr Djanogly: If a long extension to article 50 was agreed, would a prorogation of Parliament represent the deadline for getting the remaining Brexit Bill through?
Daniel Greenberg: I do not understand in what way—
Mr Djanogly: If a long extension to article 50 was agreed, would a prorogation of Parliament represent the deadline for getting the remaining Brexit Bill through?
Daniel Greenberg: I got the words, but I am not quite sure—prorogation is always the—
Mr Djanogly: The wind-up moment.
Daniel Greenberg: It is the wind-up moment. These days there is carryover. You are talking about prorogation and not dissolution. I think I am missing the subtlety of your question.
Q3876 Mr Djanogly: So is the answer that you could manage this through carryover?
Daniel Greenberg: If it is a prorogation and not a dissolution and you need to carry stuff over, you can do that. I think I am missing the subtlety of the question.
Mr Djanogly: No, that is the answer.
Q3877 Chair: Very good. On the European parliamentary elections, is it your collective or individual view that there is no way of removing the obligation to participate from the United Kingdom, given the circumstances we are in? A lot of people have said different things—“You could have a protocol”, “It’s too difficult”, “There isn’t the political will”, “No, it’s not legal”—and so on, and it would be helpful just to get a view from you. We in Parliament have been told that there is no way round it—we would have to participate and the trigger date is 12 April. I would be interested in the panel’s view.
Georgina Wright: Let’s look at it from the EU’s point of view. What is it thinking about? First, it wants clarity that an extension will make a difference, and secondly it wants certainty that if the UK is to remain a member state past May when the European parliamentary elections take place, it will no longer be a member state past June when the European Parliament sits for the first time. As we said before, the UK could not remain a member state and not have representatives in one of the key EU institutions, and that is something that many member states feel strongly about. We hear different dates—12 April, 22 May—but 12 April is the point by which the EU needs to know whether the UK will participate.
As I am sure you know, at the moment there is a plan for those elections to run a new European Parliament configuration. The number of seats will be reduced, and some of the British seats have been redistributed among different member states. If the UK were to participate, the EU would have to halt that reconfiguration, and it thinks it would need to know that by 12 April.
If the UK Parliament passed a deal at the beginning of April, but still needed time to pass the withdrawal agreement Bill, the EU would prefer that to happen by 22 May. It is holding elections to the European Parliament, and it would be worried that if it extended that period until the end of June, and at the end of June the UK Parliament needed more time to discuss the withdrawal agreement Bill, that would be problematic because the UK would still be a member state. The key date is 12 April—the EU needs to know whether the UK is participating in the elections because it would need to halt the new European Parliament configuration.
The 22 May question is that some member states might feel uncomfortable with the UK remaining a member state until the end of June, because they would be afraid that, come the end of June, the UK would ask for another extension to discuss the withdrawal agreement Bill to pass it, and that would still have an impact on the European Parliament. I think member states are split on whether the UK could remain a member state and not have representatives in the European Parliament. What you are hearing is that they would not feel okay with that.
The other day I heard someone talk about tolerated illegality—the UK remaining but not having representatives in the European Parliament. One very senior official from a member state said, “Absolutely not. If the UK were to remain past the end of June, it would need to have held European Parliament elections in May and it would need representatives. There is no way it could remain a member state without that.” Does that help to clarify slightly?
Q3878 Chair: It certainly does. Dr Usherwood, is there anything you would add?
Dr Usherwood: I would say the same. One thing to note would be that if the UK remains a member state at the point when elections might need to take place—in May or at the end of June—as a signatory of the treaties there would be a theoretical possibility that you could adopt some protocol that would allow for special arrangements, subject to the relevant ratification procedures among the other member states. It is not that it is impossible, but it would be very difficult and subject to a lot of political wrangling, particularly on what model you were doing—whether you had some kind of appointment system or whether you did something else to extend the terms of current MEPs. There are some options, but they would be very hard to operationalise.
Q3879 Chair: Could that be viewed as too much bother? It might be possible if there was a will, but it would be a lot of work and it would use up a lot of capital.
Dr Usherwood: It comes back to one of the previous questions about the EU’s willingness to extend this process. It needs to be associated with the process. The EU’s position so far and the decision from last Thursday’s European Council are that the extension is being sharply constrained by the requirements of the European elections. If the UK needs perhaps more time to complete its ratification of the process through the implementation Bill, that would be a very particular situation in which you are looking at a relatively short period of time where it might be possible to do something through understandings, and the notion of tolerated illegality. Again, there is a lot of concern from the EU that it would not want to get sucked into things that cause it problems down the line.
Dr Hughes: Could I disagree with that slightly? The concern, as I understand it, from the EU side is whether the European Parliament is legally constituted and is open to legal challenge. I am not a lawyer, but that seems to mirror some of our earlier discussions on whether the UK was in breach of EU law. That is a different point from the whole European Parliament being open to challenge.
I am aware that different member states already know how many MEPs they would lose if the UK took part in the elections. For Poland, for instance, that procedure has been described to me. They know what they would do if they had to lose one MEP. The legal constitution is obviously the crucial thing. On the point about the protocol, that requires treaty change, which requires unanimity. We are used to the EU finding interesting fixes, but this looks extremely difficult.
Dr Usherwood: The decision about reallocation of seats is conditional upon the UK not being a member state. If at the point that elections take place the UK is a member state, you would not have that reallocation in effect. As when you have had new member states join not at the point of European election, which is pretty much every time, subsequent adjustments can be made through the accession treaties, so you would have to work on a way of operationalising the reallocation at the point that the UK stops being a member state. But it would be open to member states—if they wanted, in anticipation—to elect or to have methods for selecting those additional MEPs, but not putting them into effect until the UK withdrew.
Q3880 Seema Malhotra: I just want to ask for clarity on a couple of points and, Mr Greenberg, you might have a view on this. When we went to Brussels, we heard a different view of this 22 May versus 30 June point—from a legal point of view, about whether or not we need to hold elections. It was a different point of view from the European Commission and from those in the European Parliament. If we were to stay until 30 June, albeit having agreed a deal and being subject to leaving, would we still have to hold European Union elections? That is the first point, the lead one. Secondly, picking up on your point, Dr Usherwood, if we were then to stay beyond 2 July, I understand that it would take political capital but could there be a process by which legally we could do that for a defined period without holding elections? Two legal points.
Daniel Greenberg: Shall I say from my perspective, then the European experts will tell you theirs? My understanding is that the straightforward answer to your question is, yes, while we are members, we have to hold elections. That, as Kirsty has rightly said, is a question not of our law but of European Union law. I also strongly agree with what she said about this being a question of the treaties; this is not something on which you can just have a Council decision fiddling around and saying, “Don’t worry”—it is part of their law. One thing we know is that there would be opportunities to challenge the basis of the election if it were not carried out in accordance with their law, and doubtless there would be people who wanted to do that. Subject to anything that colleagues on the panel say, I think the answer to your first question is, straightforwardly, yes.
Coming to your second question, which picked up on something that Simon Usherwood said, it is true that in the process of accessions, the accession treaties allow for a certain amount of adjustment as you go, but the key word there is “treaties”. Again, it is a process of treaty change. I am not here to speak as an expert in EU law, and I am not one, but the idea that we could somehow do a little bit of a back-of-an-envelope fiddle and sort it all out afterwards retrospectively as a matter of EU law fills me with quite a lot of concern, because I think that might be raising expectations that as a matter of law are simply not well founded.
Q3881 Mr Whittingdale: My question, I hope, has a simple answer, but I just want to be sure of it. If we decide that we wish to have a longer extension—presumably because the Prime Minister’s agreement does not pass—we are therefore looking at an extension of perhaps two years, I understand that obviously we will have to participate in European elections, but if at the end of that two-year period we cease to become a member, do our MEPs at that moment cease to be MEPs and, if so, do their seats sit empty with no other changes until the next European election in four years’ time?
Dr Usherwood: Again, the decision that the European Council took on re-allocation comes into effect when the UK ceases to be a member state. At the point at which the UK ceases to be a member state, all representation stops and participation stops, subject to whatever terms of withdrawal that there might be. So yes, on the date at which the UK stops being a member state, there will be no more UK MEPs. At that point, the arrangements that the European Council has already agreed would come into effect with the redistribution of most of those seats to other member states.
Q3882 Mr Whittingdale: Does that mean there has to be fresh elections, or will people move into the empty seats off lists in other countries?
Dr Usherwood: That is something for member states to decide how they pursue it. We have a treaty requirement for direct elections, but those are held under national procedures, so if member states want to anticipatorily select those additional people, they are within their rights and that is something for their own constitutional system as they see fit. However, it may be that some, particularly if we are in the situation where it is a long extension, may decide that they need to have a different mechanism for selecting people at that later date, but that would be for individual member states to decide by themselves.
Q3883 Mr Whittingdale: Okay, so the answer to my question is less simple than I had expected.
Daniel Greenberg: Could I possibly add something? For me, the big difference between your question and the questions we were discussing about May and April is that within two years, treaty change is feasible. That means the other member states have an opportunity to sit back and think about what they want to do. The point about May and April is that, even if they want to do something, they cannot do it on the back of an envelope because they cannot get treaty change.
Q3884 Mr Whittingdale: I see, so as a part of the negotiation over the two-year period, they might incorporate the changes?
Daniel Greenberg: Exactly so.
Dr Hughes: Can I add something briefly on the 30 June question? The EU is obviously very aware of, and some of them are rather disappointed in, the European Court of Justice judgment on unilateral revocation of article 50, but that is also there in play in thinking about this. That is why the longer date of 22 May, not 12 April, was given only if the Withdrawal Agreement was passed, because, given the fluidity of UK politics at the moment, you do not want to be in a situation where, for instance, article 50 is revoked on 21 May, let alone 30 June and the Parliament is again not legally constituted. That is another element of it. In terms of treaty change over a longer period, certainly, but at the moment there is huge reluctance on other issues too, where the EU member states might consider treaty change for some of their other concerns, whether eurozone reform or other issues. Given EU politics at the moment, that looks like being a very tricky task, because once you open the treaty up for one thing other things can be brought in. It is not an easy moment to look at those sorts of options.
Q3885 Sammy Wilson: Mr Greenberg, the Government have not published the withdrawal agreement Bill, but what would you have expected to see in the Bill, had we had a draft publication?
Daniel Greenberg: As I said before, in its form you have two extremes: you have something very short, saying, “The agreement has effect in UK law,” which, of course, is not unlike the 1972 Act itself; and then you have the other extreme of complete replication. As I said before, what we expect to see is somewhere between the two, with the primary provisions set out and being given transposition and implementation effect on the face of the Bill. Clearly there will be a wide range of powers, similar to the 1972 Act and the 2018 withdrawal Act, to give effect to the details. One of the things we have seen in recent months, of course, is that you can have large numbers of statutory instruments processed through this place and through the Lords to give effect to withdrawal-related legislation gaps.
It seems to me that what we can expect—I say this because it is already broadly in line with what the Government announced some time ago in their White Paper—is for quite a lot of details about citizens’ rights to be on the face of the Bill. You can expect details about the implementation period itself to be set out on the face of the Bill, and clearly the negotiated financial settlement is core material and, in line with what the Government have already said, we would expect to see quite a lot of that go on the face of the Bill.
I mentioned in response to an earlier question that you already have section 9 of the withdrawal Act, which gives powers to make regulations implementing the agreement. One of the things that you would expect to see in the withdrawal implementation Bill is a resolution of whether section 9 of the withdrawal Act is to continue or is going to be overtaken by the withdrawal implementation Bill. If it is going to be overtaken and replaced by regulation-making powers, the other key thing in the Bill for you will be the scrutiny arrangements. Obviously that was one of the biggest issues with the withdrawal Act: how is the scrutiny going to take place? You have the sifting Committee and all the rest of it. Broadly speaking, those are the big chunks. The balance—as to how much detail goes on the Bill and how much goes into the regulations—is something that you would have to decide.
Q3886 Sammy Wilson: One area that you have not mentioned, which is the most contentious part of the Bill, is the backstop arrangements. What detail on the backstop arrangements would you expect to be in the Bill?
Daniel Greenberg: Giving a purely technical, legal response to that, it is perfectly possible—given that the backstop is a backstop—to imagine competent implementation of the immediate provisions of the agreement without the implementation provisions for the backstop itself. This is not a political judgment; it is a purely technical answer to your question. Whether it would become necessary to take some provisions to start preparing for the possibility of the backstop—again, from a legal, technical perspective, that is not something that you would have to do on day one, but you would form a view about the complexity of the operation and decide how much time you needed, which would determine when you took the necessary powers. Obviously, that is a legal answer; as we know, the reality is that this is not a legal question, but a political question.
Q3887 Sammy Wilson: Given that some of the implementation provisions will have to involve the restrictions there will be on trade between GB and Northern Ireland and vice versa, is it likely that those provisions would simply be left to SIs, or would they be included in part of the Bill? Given that it is one of the hugely contentious issues, I know part of that is a political answer. If it were left to SIs, what level of scrutiny would there be of those?
Daniel Greenberg: I am not trying to be unhelpful when I characterise it as political; indeed, you have said that it clearly is. Let me try to be helpful. It is likely that everybody would conclude that setting out on the face of the Bill the principles on which those arrangements are going to work will be helpful to everybody. If you kick it all down to SIs, you have probably created more problems than you have solved—that is a reasonably uncontentious thing to say.
The other thing I can say—trying to be helpful—is that the 2018 Act has shown that we can give the Government the same flexibility that they have always enjoyed under section 2(2). This is something that people do not always remember: the choice between affirmative and negative resolution was not dreamt up in the 2018 Act; it was always there under the 1972 Act. The only difference is that in the 2018 Act you introduced—during the passage of the Bill through Parliament—a parliamentary control mechanism through the sifting Committees in order to exercise influence over that choice.
Looking at it purely as a matter of what is technically feasible, I would expect you to do something like that again. You would say, “Here are the principles. This is all going to be done by SI. We want to see these, these and these for affirmative resolution. Clearly, some of your affirmative resolutions have had more debate than is common for such resolutions in this House. These are the matters that will be left to negative resolution SI.”
Q3888 Sammy Wilson: Potentially, all we might see in the Bill would be the principles of how the backstop arrangements would work. Then, hopefully, through the sifting arrangements, the SIs could come as affirmative SIs—although that is not necessarily always going to be the case.
Daniel Greenberg: Yes.
Q3889 Sammy Wilson: Can I just ask one last question about the contentious nature of the Bill? There will be a number of areas in it that, by their very definition, are contentious. You mentioned one of them: the divorce bill of £39 billion. In an earlier answer, you said—I hope I quote you correctly—that any amendments could not override the legal obligations of the Withdrawal Agreement. I think that is basically what you said.
Daniel Greenberg: Yes.
Sammy Wilson: Does that mean that this would be one of those Bills where the parts that people most wanted to amend, because they were contentious, they would be unable to amend once the Withdrawal Agreement was through, because they would be restricted in putting down any amendments that conflicted with the legal obligations in the Bill?
Daniel Greenberg: I do not think I can do anything other than agree with the end of that. What people most want is not a matter for me to comment on. Look, this is Maastricht; this is Lisbon. We have been here before. This is not the first time we have had an implementing Bill where some people in Parliament would quite like to use it as an opportunity to renegotiate the treaty to which it gives effect, but that is not how it works. Parliament cannot rewrite the treaty. The straight answer to your question is therefore yes, but this is not novel; this is the nature of implementing legislation.
Q3890 Sammy Wilson: So to those who may take the view, “Well, if, for whatever reason, we can approve the Withdrawal Agreement, we can deal with the bits we don’t like in the withdrawal Bill,” your answer is that that is not a possibility because, once the agreement is through and once we have approved it as a legally binding international document, the ability to change the law that implements it is restricted?
Daniel Greenberg: My answer is that, using the implementation Bill, they cannot change the provisions of the agreement itself. Whether they can use the implementing legislation to do one of two things is another question. First, can they use the implementing legislation to gloss the effect of aspects of the Withdrawal Agreement? The answer is that it depends which aspects and how you want to gloss them. That is one possibility that people will be able to look at. Secondly, to come back to my point about two years being a significantly longer period in EU terms, could they aim to do things in the Bill that might influence or even control—no, that could influence the EU law at the end of the tunnel? Possibly they could.
Q3891 Hywel Williams: May I take you back to the devolution implications, which Joanna Cherry raised earlier? I am thinking particularly of legislative consent motions, which have really puzzled me and some of my interested constituents. The Welsh Assembly has passed some of those, as I understand it, and the Scottish Parliament has not. I am mindful of what you said earlier, Daniel Greenberg, about then falling between two stools in terms of their status—about whether they are actually required or whether “due regard” must be given to them. I wondered whether you would explore that particular subject in terms of the implications in law, if any, and the—rather more interesting for me—political implications of all this.
Daniel Greenberg: Do you want to take the politics first?
Dr Hughes: I was going to say take the law first.
Daniel Greenberg: The politics is much more interesting. You talk about the politics.
Dr Hughes: The politics is obviously extremely problematic. It was problematic from the point when Scotland and Northern Ireland voted remain and the rest of the UK voted leave. Through the last two and three quarter years, the way the Brexit process has happened, and the fact that the Scottish Parliament refused legislative consent but none the less the process carried on, can be seen either as Brexit having a centralising effect—obviously, we have seen that in the discussion over common UK frameworks—or as exposing a centralisation that we, perhaps happily, thought was not there. We thought we had a balance of powers that was understood. I think the process has been problematic. The other political comment I would make is that it doesn’t seem to have been treated with sufficient political concern at Westminster and at a UK Government level. I will leave it there.
Daniel Greenberg: On legal considerations, I will say a couple of things. We have now had a Supreme Court decision on the challenge to the Scotland implementation Bill. That decision identified different provisions that were on different sides of the line. From a legal perspective, that is rather helpful. When we come to a new Bill, people will be able to look at what the Supreme Court said in that judgment and apply those legal parameters to the powers and provisions in the Bill. That is quite a helpful difference between the implementation Bill and the previous withdrawal Act.
I repeat what I said about Sewel. I think the most important outcome from a legal perspective is clarity about who is going to do what. Even before Brexit, being told, “You can do this normally, and we won’t normally do it, but sometimes we might,” was likely to become a bit difficult. What is clear now is that that is not going to be technically sufficient in this case, so you will need clarity.
The other thing I would say is that the 2018 withdrawal Act has quite a range of mechanisms within it for joint exercise of powers by the devolved Administrations and the UK Government. Certain things are purely devolved. As Kirsty Hughes said, subject to the politics of it, you have got a lot of different mechanisms you can play with. You can produce quite a nuanced result that gives effect to the political requirements.
Q3892 Richard Graham: I want to move on to a slightly different area. The Prime Minister said—I think this has been slightly misinterpreted—that she and the Government would not feel obliged to implement the results of any indicative votes. Of course, the main reason for that is in case any of the proposals put forward are not negotiable with the European Union. In terms of what our real options are and what might be unicorns, have the four of you looked in some detail at what is likely to be put forward—for example, the Europe 2.0 proposal? Have any of you had a chance to explore that in detail? I am looking for some nodding heads.
Dr Usherwood: “In detail” might be pushing it, but we have certainly worked through them.
Q3893 Richard Graham: Can I explore that with you in a bit of detail so that we and others who look at these Select Committee events can form our own conclusions? The common market 2.0 brochure has changed a bit in its second permutation. On the freedom of movement element, for example, the original version said, “Freedom of movement, yes, but with qualified right to suspend.” The second version refers to the EEA safeguard clause. The first version claimed that an EEA EFTA state would have a unilateral right to take appropriate measures. The second version drops the word “unilateral” but says that “we would have the power to impose restrictions.” What is your understanding of the reality of the safeguard clause? Does it give any state in the EEA EFTA pillar the ability to apply to impose restrictions, or the power to impose them?
Dr Usherwood: Before I come to the specific provision, it is worth noting that this amendment could still only be anticipatory of a negotiation. Whether it could be completely delivered in the form set out here is subject to negotiation.
Q3894 Richard Graham: You are talking in general terms, but I was trying to push on the detail. When colleagues vote on these indicative votes, it is important that they understand more about some of the claims, in quite simple columns, about the attractions of a particular option being offered. What is the answer to the question?
Dr Usherwood: The bigger issue around this is whether the EU and EFTA states would be willing to let the UK join.
Q3895 Richard Graham: We understand that. I was seeking an answer about the specific existing EEA article 112 safeguarding measure. What is your understanding about whether that is an ability to apply to impose restrictions, or a power to impose them?
Dr Hughes: My understanding—I don’t think this is the exact wording—is that there have to be exceptional circumstances, and those must obviously then be interpreted and can be a source of disagreement. Just as with the Withdrawal Agreement, there are dispute procedures, and I don’t think you can just unilaterally apply that when you want without challenge.
Q3896 Richard Graham: So who decides?
Georgina Wright: My understanding of the provision is that, for example, the UK could go to the EU and say, “We would like to suspend freedom of movement,” at which point the EU would say, “What is your reason?”
Q3897 Richard Graham: So a member of the EEA EFTA pillar would have to apply to the EU?
Georgina Wright: It would be a negotiation, or at least a request. The UK could decide it, but that would presumably be subject to a dispute because there would need to be a reason. If the UK did not have a reason that was deemed valid, that would presumably be subject to a dispute. I think it is more “power to” than “can”.
Richard Graham: It is the ability to apply—
Dr Hughes: To the EEA. The EEA is obviously dominated by EU member states, but none the less the dispute procedures are within the EEA and EFTA court system.
Q3898 Richard Graham: The claim in common market 2.0 is that financial contributions would effectively be at a 50% discount per head. In your understanding of EEA financial contributions, is there a fixed formula for deciding what those contributions are, and who decides that?
Dr Hughes: I am not an expert on the exact budgetary processes, but it depends partly on the programmes you choose to join—some are part of being in the EEA
Richard Graham: Who decides?
Dr Hughes: It is a negotiation.
Richard Graham: Between?
Dr Hughes: In the first instance I think it is a negotiation when you apply to join. If once you have joined you want to join additional programmes there would be additional—
Q3899 Richard Graham: So the EEA decides, or the EU decides?
Dr Usherwood: The negotiating parties decide.
Richard Graham: And they are?
Dr Usherwood: All the signatories.
Richard Graham: So purely Norway, Lichtenstein, Iceland and Switzerland would decide.
Dr Usherwood: And the EU.
Q3900 Richard Graham: Plus the EU. So there is no formula that any of you are aware of.
Dr Hughes: No, because it has come out of a mixture of contributions to, for instance, structural regional funds, which in the last 15 years have contributed to the central and eastern European countries catching up, and contributions to particular programmes. People throw around two different figures, depending which side they are on, as to whether Norway’s contributions are greater or smaller per head of population, or greater as a percentage of GDP. My understanding is that those contributions are less as a percentage of GDP, but more per head. Obviously the UK would not benefit from any rebate at that point, so it is not automatic that you would see a big reduction.
Q3901 Richard Graham: I just want to pursue that in a tiny bit more detail, Chairman, because I think these things are quite useful. The claim is that, in terms of EU rules, only 28% apply. What would be your understanding of how that figure is—or, indeed, could be—arrived at?
Dr Usherwood: That is the kind of question that invites an academic answer: “It depends on what you are measuring.” Are we talking about individual pieces of legislation? Are we doing it by their significance? If so, how do we measure their significance? To give a percentage figure is not by itself a very useful metric of anything, because it depends very much on what it is that you are giving effect to.
Dr Hughes: I was looking at one article on that this morning, as it happens. It was discussing different pieces of work. Some have come up with the figure of 75% and some with much lower figures, because of the reasons Simon has just stated.
Q3902 Richard Graham: Lastly, on the detailed things, on the European Court of Justice, the claim is exempt. Obviously, there is the EFTA Court. We had a session on the EFTA Court, and my clear memory is that there is no example of where the EFTA Court has ever differed from the European Court of Justice. Is that your understanding, or is there one case where there was a slight difference?
Dr Usherwood: Pass.
Dr Hughes: Pass.
Q3903 Richard Graham: The point I am gently trying to get at is that, when it comes to comparing different options, Members of Parliament who have not been on this Committee are unlikely to have had the opportunity to delve into this sort of detail.
As your answers have shown, even those who do specialise in some of these issues will not necessarily be able to give very clear answers to detailed questions, which are critical in terms of colleagues deciding what is the difference between the option in the negotiated deal and the options on which we can have indicative votes tonight. Is that a fair assessment in your view?
Daniel Greenberg: Is it all complicated? Yes, I agree. It is all complicated.
Georgina Wright: That is probably right. It is the same when you say that the UK would become a rule taker. Actually, if you look at Norway, Iceland and Lichtenstein, they are often invited at working group level when EU legislation is being put together. They are sometimes invited and they have input. When it comes to voting on that decision, there can be changes at that point and, of course, they are not around the table and are not voting on that decision.
Again, there are ways in which the UK outside could try to influence and engage the EU during that legislative process but, of course, when it is being voted on, it would no longer be round the table. Norway certainly isn’t round the table when they are voting on EU law.
Q3904 Richard Graham: Indeed, thank you. I have one last question, which is important. A crucial element of Europe 2.0 is that the UK would not just be in the EFTA pillar of the EEA but would also have a customs union with the EU. Of course, that would prevent the problems of the backstop on the Northern Irish border.
What in your understanding would be the exit strategy from such a customs union, if the UK at some future stage decided that it wanted to leave the customs union—to pursue its own free trade agreements, for example? If there were not an obvious exit strategy, other than the backstop, is it your understanding that effectively the backstop that has already been negotiated would have to come into play?
Dr Hughes: Firstly, there is a question on this, given the customs union point, of whether the UK could actually join EFTA and the EEA, if it was also having a customs union. Because that would contradict article 56(3) of the EFTA convention—
Q3905 Richard Graham: It does, but Michel Barnier has made encouraging comments on that.
Dr Hughes: With respect, Michel Barnier is not in EFTA and I think the EFTA countries have every right to say that they are not making such a major exception. The EEA EFTA states also have the right to say that they think the UK would be a rather big player in the room.
Q3906 Richard Graham: Let us assume that that had been jumped over, Kirsty Hughes, because my question was more specific than that. What would be the customs union exit strategy that would not land the Northern Irish border in a problem and would not involve a backstop? Is there one?
Dr Hughes: That depends on the question whether, if you passed the Withdrawal Agreement with the backstop and then set up a Common Market 2.0, Norway-plus, and then withdrew from that arrangement, the backstop kicked back in. I have asked different lawyers and I asked someone in Berlin that question a couple of months ago, and they thought it did kick back in, but I am not sure whether it is set up in such a way that it does kick back in.
Q3907 Richard Graham: That is a very good point. Daniel Greenberg, would that be your understanding? If the withdrawal agreement Bill passes as it is, the backstop is there.
Daniel Greenberg: I am not here to talk about EU law in detail, but, trying to help on this, what we have seen in relation to the backstop is that there are two ways of changing your relationship with the European Union—I know we are on EFTA—in any respect.
The first way is to leave it and the second is to implement part of your arrangements with it, that allow for change. So you leave the EU through article 50 and that means you are in or you are out. If your agreement to stay in the EU gives you an element of discretion or gives an element of discretion to the EU, to the other member states, then while you are within EU law you have the discretions that you have negotiated and set out in the treaty, because the Withdrawal Agreement is simply part of the treaties.
So exactly the same applies to EFTA or any other arrangement that you enter into. You have two choices. When you want to get out you can either get out by getting out—triggering the getting-out mechanisms—or, if you have embodied within your agreement, which is now part of the treaties, a mechanism for getting out of part of your relationship, then you trigger that mechanism. Those are your two options, and there is no other way of doing it.
Q3908 Richard Graham: So, effectively, in shorthand terms, if the withdrawal agreement Bill is passed, as currently negotiated, then the backstop would be part of any change to apply for the EFTA pillar of the EEA. Correct?
Dr Hughes: As I understand it, the backstop protocol obviously says it is there until it is superseded in whole or in part by the subsequent mechanism. I understand your question to be: if it is therefore superseded in whole—although it might not be, because obviously even in Common Market 2.0 you have fish and agriculture questions—and then you leave, does the backstop kick back in?
Daniel Greenberg: No, it may be that I am misunderstanding you, but I just think that there is a possible confusion. A Bill to implement this thing is not also covering—when you are talking about EFTA and possibilities, I just wanted to be clear; that is separate. So a Bill that implements this—the backstop and the protocol are part of those arrangements. Anything else that you are talking about would not be covered by a Bill that—
Q3909 Richard Graham: So your assumption is that were Parliament to vote for and the Government to decide to implement Common Market 2.0, that would completely make redundant the current withdrawal agreement Bill.
Daniel Greenberg: No, I would not go as far as that. It does not make it redundant, but—
Q3910 Richard Graham: I think the assumption is that it would be in addition to it.
Daniel Greenberg: Well, I agree. I do not say it is redundant, but it is a new layer that has to be dealt with one way or the other, yes.
Q3911 Chair: That was interesting—particularly for the panel to be playing “Dragons’ Den” for Common Market 2.0. I would just point out that whenever I have heard the proponents of Common Market 2.0 speak about it, if anyone says, “You are proposing a customs union” they say “No, we are proposing a customs arrangement.” Just for information, that has always been my understanding of what they themselves have said.
Richard Graham: The phrase in the pamphlet, Chairman, is “a customs union”.
Chair: It is interesting if it says that, because the spokespeople I have always listened to said, “No, it is a customs arrangement.” It is a fair point that there is a lack of clarity. I also add, for the sake of completeness, that the Political Declaration currently before the House of Commons is also full of uncertainty because we don’t know what it will produce.
Dr Hughes: May I add briefly on that? That is an important point. At some points, there is a lot of deliberate obfuscation around customs arrangements versus customs unions, but you are not going to be able to supersede the backstop without something equivalent to a customs union—even if you call it a “customs arrangement” because you think that will be politically expedient.
Chair: I think I might provoke something here, but Joanna Cherry wanted to make a point.
Q3912 Joanna Cherry: To comment specifically on what you said about customs arrangements, proposal D for today—Common Market 2.0—refers to entering a comprehensive customs arrangement, not a customs union.
Chair: That is in the motion before the House.
Joanna Cherry: Yes. The motion that we are voting on today talks about a “customs arrangement”, not a “customs union”.
Chair: Right. We are all better informed now. That is very helpful.
Q3913 Seema Malhotra: I hoped to strike a slightly lighter note, but I am not sure I will succeed. My question relates to a hypothetical, which today could become, or take a step towards, reality.
If the House of Commons, through this process, agrees to approve the Withdrawal Agreement and Political Declaration, subject to a confirmatory referendum, would that count as approval for the purposes of section 13(1)(b) of the European Union (Withdrawal) Act 2018? Could a referendum be legislated for in the withdrawal agreement Bill, or would it need separate legislation?
Dr Hughes: I am not a lawyer, which is why I was sitting back. I would have thought that those things need separating out, because you certainly need the referendum before you leave, so you need the extension. If, for instance, you are in the business of provisionally applying the Withdrawal Agreement if we actually left, a referendum would be highly problematic because you would be in a position of having to re-apply. The idea of having a referendum is obviously to have a longer extension and to decide before you finalise your ratification. That is a political answer.
Dr Usherwood: You would also have to assume that the EU would not do its side of ratification until it knew the outcome of the referendum, in the same way that it has not done its part of the ratification so far because it is waiting on the UK to complete its processes first. Whether that constitutes approval, I think Daniel Greenberg can say better than us.
Daniel Greenberg: I was hoping to say that what amounts to approval by resolution is, of course, a procedural matter for the Clerks, not for me. Of course, you will then say, “No, because it’s in section 13—it’s law.” You want to know what section 13(1)(b) means in that context.
I will say two things. First, a conditional resolution that says, “We sort of approve it but only if this or only if that”, raises a lack of clarity at the very least. As a legal question, would it be possible to give you a clear answer in either direction? No, it wouldn’t. A motion that expressed itself in conditional terms, such as “We approve, but only if”, raises a lack of clarity from a technical legal perspective and, therefore, is ideally to be avoided— whichever side of the political argument you are on—because it does not leave you with a clear result.
What I notice, however—as do you—is that paragraphs 13(1)(b) and (d) make a distinction between the resolution and the implementation. You could therefore say, for example—and I am not suggesting this; I am simply adumbrating possibilities—“We do approve it, and we also resolve, entirely separately, that before the Act that will give it effect is brought in, there is to be a referendum.”
The legal effect of the resolution that the Chair discussed with me right at the beginning of this session—what I said on that remains. You would have clarity in legal terms because you would have approval under section 13(1)(b), but that does not mean there is not another stage to go through, because 13(1)(d) means you have to have the implementing Act. That would give you your gap if you were looking for a way of approving unequivocally in a way that gives a clear legal result, while giving yourselves a gap to hold a referendum or whatever you want to do—that is your mechanism for doing it.
Q3914 Seema Malhotra: What would that mean for the timing of a referendum?
Daniel Greenberg: I fear that that comes back to the question of extension, doesn’t it? You have as long as the EU gives you. Your timing problems do not stem from the requirements of 13(1), but from the fact that, as we went over in some detail earlier, if exit day kicks in before you have done all that, you are stuffed.
Q3915 Jeremy Lefroy: I have a quick question not on the detail of the legislation. How would you characterise the UK-EU relationship at this point?
Dr Hughes: The phrase I got from Brussels recently was one of zero trust—very bad, very damaged and very difficult, whether we are talking about the shorter or longer-term talks. Negotiations need a degree of trust and respect, and at the moment it is not there.
Georgina Wright: I have heard that they were for the most part apprehensive over the past year, but now they are mostly pessimistic and extremely frustrated. That being said, I think they have been quite consistent that they do not want a no deal. You have heard EU leaders repeatedly say that they understand the pressures that the UK Government are under. They understand the political reality and they are trying to help, but there is a feeling that they have gone as far as they can with the Withdrawal Agreement, and that a lot of the solutions—particularly to the backstop and the future relationship—lie in the future negotiations, not by spending time on the Withdrawal Agreement. Their sense is that the more time is spent on the Withdrawal Agreement, the less time there will be really to tackle those crucial negotiations that will be incredibly complex and potentially harder than those so far.
Dr Usherwood: If it helps, I have heard exactly the same negative view. The Withdrawal Agreement is the Withdrawal Agreement. The clarifications will not be clarified further, so the Political Declaration is the only part of the process that is done. To echo Kirsty’s point, the day-to-day business of the EU is part of the problem. The UK is distracted by the withdrawal process, but that has a collateral impact on its ability to engage in the Council and in ongoing pieces of legislation, which further compromises the level of trust.
There is not much hope, and that informed the discussions at the European Council. The lateness of the Government bringing their proposal for an extension to the European Council did not help matters procedurally. Thinking ahead to the 12 April deadline, part of the UK demonstrating its good faith in the process from the EU’s perspective is not just about having a plan but about engaging in the processes and understanding the way that the EU works, and working with it rather than against it.
Dr Hughes: Could I add briefly to that? There are questions here on the possibility of revoking article 50 or the possibility of another referendum. Despite what we have all said, I get the message that if the UK asked for a longer extension to have a confirmatory referendum, that would probably be granted, but there is an acute awareness of the state of our politics and a great concern that if the UK came back in on a 51% remain vote, all its problems will remain within the European Union. That long extension is likely to be accepted, but it is certainly not guaranteed.
Q3916 Chair: On the point about an extension, if meaningful vote 3 does not come back at all, or comes back and is defeated, and given that the Prime Minister made it clear in her statement on Monday that unless Parliament agrees to it, no deal will not happen, the only option available to her will be to go back to the Council before the 12th and say, “Hey, I need more time.” What do you think the EU will be looking for in terms of process or decisions from the UK in order to grant a further extension?
Georgina Wright: I think they have been clear—I think many MPs know this as well—that the only way you can take no deal off the table is either to pass the deal or stop the process altogether. The legal default is still no deal. If there is no meaningful vote before the end of the week, or if no deal is passed next week, I think the EU, as we have said before and as other panellists have said, will expect a plan.
For them, the key point is, by 12 April they would need to know whether—yes or no—the UK is participating in European Parliament elections, because of the way that the European Parliament lists are being drawn up right now, and they would need to know whether to halt that configuration. That would be their No. 1. Then there is the question, as we have discussed before, about whether the UK could request an extension until 30 June. For ratification purposes on the EU side that is not a problem, because the outgoing European Parliament can be recalled at any time until 1 July, but it is more a question of, what if the EU agrees to that and then, come 30 June, the UK realises that it needs more time to pass domestic legislation or decides to revoke article 50 altogether, but has not held elections? Then there is a problem. It would impact institutions and the EU’s smooth running.
Q3917 Chair: So the basic entry price for any further extension is the UK saying, “Yes, of course we’ll participate in the European Parliament elections.”
Georgina Wright: They have said they need a clear plan, but they have been quite vague on what that means. We have heard from other panellists and earlier in the session that it is some indication that you are not just delaying the decision but you are actually making a decision and that an extension would actually help us to get a deal passed. They have been quite vague on what that plan would look like. They would expect the UK to come forward with a clear, coherent plan.
Dr Hughes: I think there may be some difference of emphasis between us on the panel. Simon has talked about a clear process. For me, what I pick up in the European capitals is a wish for substance. So substance—I am not surprised they have not said it publicly—might be a general election; substance might be a very specific request for how you renegotiate the Political Declaration, or substance could be another referendum.
If, as many of these indicative votes today suggest, it is a request for a renegotiation of the Political Declaration, I think the request does not have to have—if I can put it this way—any large unicorns at the heart of it. If it has some small ones at the edges, so if it is something similar to Jeremy Corbyn’s plan to request a customs union but a say in EU trade law—I think that is quite a big unicorn, and it is going to get a no; none the less, if there were a big, clear majority in this Parliament for a permanent customs union with something to be negotiated around the consultations, then I think that would be fine.
If it is something that says, “We are not going to have a backstop,” you are not actually agreeing that; you are only renegotiating the Political Declaration, so, as has already been said, that would not be seen as acceptable. I agree that the EU leaders have not specified, but they have said that it needs to be a clear political change of direction.
Q3918 Chair: Say they said, “If you’re going to have an extension, it’s going to be a long one,” and say it was until December 2020. A first consequence of that is that it eats up the whole of the first transitional period under the Withdrawal Agreement. What if the UK were to say to the EU, “Okay, we’ll take until December 2020, but why don’t we use the time productively to start negotiating the detail of the future relationship, since that is the cause of the problem as to why we haven’t been able to ratify the deal that we negotiated?” Do you think there is any prospect of the EU saying, “That would really be quite a sensible thing to do”? Or are they going to say, “No. We will all twiddle our thumbs, see whether you can reach agreement on the deal that we have negotiated, and when this extension runs out and you finally leave, at that point we will start negotiating the future relationship”, with how much time left before we are out with nothing, unless it has been agreed, if you follow the line of argument?
Georgina Wright: This is the difference between talks and negotiations. Obviously, if you have a longer extension and you are looking to change the Political Declaration, inevitably you are fleshing out more about what the future relationship is going to look like. In that sense, a long extension could be a good thing—it would allow informal talks—so I would say that the UK Government should push for that. If you are spending time looking at the Political Declaration, then you should be talking about the future. But that is separate to negotiating the nuts and bolts of the future relationship, and on that there is a big question mark, because so far the EU has been very clear on sequencing—no negotiations about the future until a withdrawal agreement is in place.
Q3919 Chair: On that very point, in the main the Political Declaration is a sea of vagueness, but there are the odd spots of specifics in it. In these not-negotiations that have taken place to draft the Political Declaration, there is a reference to the two parties agreeing that there will be no tariffs. I would say that that was a pretty specific outcome to not-negotiation. I suppose my question to them, via you, would be, if in this non-negotiation we have been able to agree that there will be no tariffs, just explain what exactly it is that prevents you from negotiating a lot of other things—well, talking about a lot of other things, which of course would not constitute a negotiation?
Georgina Wright: I would just add that there is nothing preventing the UK Government from requesting that, and saying, “Could we discuss that?” I think that they have been suitably vague about that. You could also imagine a situation where you have a long extension, the UK Parliament passes the Withdrawal Agreement, but then takes more time to pass the withdrawal agreement Bill; during that time, can you start negotiating the future or not? There are questions around that.
Dr Hughes: I would disagree with that slightly. Obviously, once and if the UK becomes a third country, then article 218 of the treaty on the functioning of the EU applies. Then, as I am sure you know, a series of procedures are laid down in the treaty for how you draw up a negotiating mandate, who gets consulted and at what point, and at what point you report back. Is the EU going to abandon all those specified legal and treaty requirements for how to negotiate a future relationship, with the UK? We were talking about how the EU-UK relationship looks at the moment and, from an EU point of view, this has been a hugely time-consuming and in some ways time-wasting exercise. So yes, I think that if, for example, you wanted to be a rule-taker and have a soft-Brexit, Norway plus, you could negotiate a political declaration and specify that much more clearly than it is at the moment. In that case, you are obviously immediately into the issue that the EU cannot, in that declaration, speak for the EFTA or EFTA EEA states, for instance. So, I think up to a point, but not to the extent that you seem to be hoping for.
Daniel Greenberg: May I offer a comment? It is not only the devil that is in the detail; sometimes the angel is in the detail as well. There is a difference in nature between developing protocols, developing declarations, developing releases of ideas, and draft legislation. I think that is important here.
Q3920 Chair: A final question from me. If we had a long extension, would you expect the EU to say to Britain, “Can we reach some understanding about how you are going to behave in the Council of Ministers during this time?” You might describe that as a mutual non-aggression pact for those purposes, but do you think that is something that they would ask for, or wish to raise in discussion about agreeing to a long extension? You were nodding, Dr Hughes.
Dr Hughes: Yes. I have certainly heard that in France—this idea, which I think would have to be a political and not a legal agreement, that the UK would take a back seat, not a front seat. We talked about this earlier, in terms of appointing a new President of the Commission or President of the Council, and the budget. But that does rather depend on what the long extension is for, doesn’t it? If it is very clear that Parliament comes to a view here that it is for something, and that it is definitely for Brexit, that is one thing; but if there is still the possibility of having a confirmatory referendum, and if remain will be on the ballot paper in that referendum, it is quite awkward, isn’t it, to be saying—if you are on the remain side—“We want to continue to be a leading player in the EU, but actually we’ve just sat on our hands while the Council appointed a Commission President who is really not up our street”? Obviously that is understood, on one level, from the EU side too. So I think it will be there, but it will be a political agreement and it could be a fairly awkward one.
Dr Usherwood: There will be a tension, because of the way the EU has insisted on participation in European elections because of the treaty obligations, to then say that the UK should not be able to exercise its treaty obligations as a member in that kind of scenario. I think that will be the tension, and a political declaration and agreement that might be relatively easy to sign up to might well come at a point where the UK feels that it has material interests that it cannot ignore, and that it would be within its legal rights to pursue.
Q3921 Craig Mackinlay: You are always a very illuminating force when you are here, Daniel, and I am always very pleased to see you—
Daniel Greenberg: I try not to be.
Craig Mackinlay: You should be a politician, because you have evaded this stuff very nicely today, so you would be better off on our side, but I don’t blame you for doing so. This is relevant to today, because we have the SI to discuss later, after we have got rid of the—in my view—sham of what we are doing this afternoon, but let us just put that away for a moment. The Miller point is relevant here, in my view. You discussed very ably that it was relevant on our article 50 way out; it may not be relevant on our article 50 extension or what this SI really represents, which is a change to the treaties that has been approved on the hoof with the other 27 at the meeting last week.
As I think Joanna Cherry said, the Leader of the House yesterday said, “Yes, we want to have it passed, but it’s really rather irrelevant,” because, as you very ably said, we are still in the ’72 Act and all of those good things, which means exit day is determined by our international obligation, so it is really irrelevant to what we have got to say about it here in this House. That leads me to why we are having this SI at all. Is it just a common decency, like when we have very long-winded Bills to agree international treaties, where we can actually do very little about it? You will be aware of Bill Cash and his crowd’s concerns about that SI, which was published yesterday—you may not have read it; it was quite lengthy. My real question is: is it not a very unusual SI? Have you ever seen an SI like it—a two-headed beast that says, “This if this happens, this if this happens”? I do not have years of experience, as you would have, but it seems a very strange beast, and at the end of the day, what is the point of having it? It is an irrelevance whether we agree it or not. Would that be your view?
Daniel Greenberg: No. I agreed with most of what you said in your run-up, but the main point with which I disagreed was the words, “on the hoof”. We have got to keep focusing on the process. It wasn’t done on the hoof; it was done in accordance with article 50.
Q3922 Craig Mackinlay: Oh, it was, yes, but it was all sorted in an afternoon and over dinner and all the rest of it—
Daniel Greenberg: But in terms of structure, there is nothing informal about it; and this is about structure and process. As you said, because we are still in, we still have a UK obligation, because of our EU obligation, to make sure that our law properly implements their law. So this SI is not an optional SI; it is necessary if we are going to reflect, which at the moment we still have to, the European Union law change of the concept of exit day, because the effect of article 50 has changed. On your question whether it is structurally novel, the answer is no. It is not structurally novel to have legislation that has different options that kick in if different events occur. When you do that, what matters—again, like my answer before—is providing certainty. If you say, “If people think…” that is one thing, but if you are talking about specific events—“If this condition is satisfied then this,”—that is fine, and that is not structurally novel, but it requires to be tight.
Chair: Thank you very much. That concludes the session. On behalf of all the members of the Committee I thank our witnesses for coming and giving up your time today, and for providing really useful and important answers to the questions with which we are all grappling.