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Points of Order

Volume 651: debated on Monday 10 December 2018

On a point of order, Mr Speaker. In response to my questions earlier, the Secretary of State said—at least I understood him to say this—that the United Kingdom Government had taken the same position as the Commission before the Court of Justice. My hon. Friend the Member for Glasgow South (Stewart Malcolm McDonald) challenged him on that. I am sure that the Secretary of State has now had the opportunity to familiarise himself with the Court’s opinion, where he will see that the Council and the Commission took the position that article 50 could be revoked, but it would need the unanimous consent of the other member states. Curiously—I can say as a senior counsel that I have never seen this happen before—the British Government refused to take a position on whether article 50 could be revoked. They refused to answer the question. I am very anxious that the record be corrected as this is a decision of the highest court in the European Union. If the Secretary of State is not prepared to acknowledge that he was wrong and that I am right about this, can you, Mr Speaker, assist me in how I might put the record straight?

The Secretary of State might choose to respond, and I think it quite proper that he should be able to do so.

Further to that point of order, Mr Speaker, what I was making clear was the similarity in position between that taken by Her Majesty’s Government and that by the Commission. Similar arguments were made by the Commission to those of the Government. Indeed the European Commission raised doubts as to whether the proceedings were admissible. That was the point that I was seeking to make to the House and I am very happy to clarify any comments if that is helpful

Further to that point of order, Mr Speaker. It really is very simple. If the Secretary of State looks at paragraph 38 of the Court’s judgment, he will see the position taken by the Council and the Commission. If he looks at paragraph 43, he will see that the UK Government did not take a position. Now, I know that we are in a parallel universe here at the moment, but is the Secretary of State seriously disputing what the judgment says? If not, will he simply acknowledge that I am right about this and he is wrong?

Further to that point of order, Mr Speaker. As I say, there is a similarity in positions. We can all cherry-pick different bits out of the judgment in isolation. What matters is the substance of the article and the substance of this. There was a similarity in the points raised and that is what I made clear.

To the hon. and learned Member for Edinburgh South West (Joanna Cherry), who effectively asked me what restitution was available to her in the event that the Secretary of State did not clarify the matter to her satisfaction—that is to say, did not issue a correction—I would simply say that on this point, we have to leave it there. It is not for me to seek to insist on a correction; that is not within the power of the Chair. Perhaps I may say, in a moderately jocular spirit as we approach the festive season, that for my own part—this view may be more widely shared by colleagues—I greatly welcome the free legal advice provided by the hon. and learned Lady, as she is a QC, not least in the light of the fact that she referred to QCs earlier and the fact that their services tend not to come cheap.

On a point of order, Mr Speaker. Before the Secretary of State scarpers from the Chamber—[Hon. Members: “Come back!”] Under the procedures of the House, it would obviously be wrong for me to accuse the Secretary of State of deliberately misleading the House, but what are Members to do if the Secretary of State has inadvertently misled the House? I was in Luxembourg at the time of the ruling, and there was no similarity between the Government’s case and that of the European Commission. What are we supposed to do if he has inadvertently misled the House today and if he perhaps inadvertently misled Andrew Marr on “The Andrew Marr Show” on Sunday because he thought the vote was taking place on Tuesday and it is not?

I will say two things to the hon. Gentleman. First, although I understand his disappointment, not to say irritation, that the Secretary of State has not remained in the Chamber, strictly speaking, points of order are raised with the Chair. It is not a formal obligation for Ministers to remain for the duration of points of order. Whether the Secretary of State thought that points of order appertaining to him were at an end, I cannot know because I do not know what was in his mind, but the situation is that the point of order is raised with me.

Secondly, I have a sense that the hon. Gentleman and the hon. and learned Member for Edinburgh South West are not going to let this issue go, and I dare say it will be played out and replayed out in days to come. I think we should leave it there for now.

On a point of order, Mr Speaker. It may interest the House to know that while Ministers are fleeing the Front Bench, the Prime Minister has apparently left the country in the last few minutes; apparently she has gone to Berlin, Brussels and The Hague. Is this not rather strange when this House has not yet actually taken a decision as to whether to continue with the debate? Have you had any notice that the Prime Minister intends to return to this House after these visits in order to explain what she has been doing and what she has been seeking? I am told that she is seeking a political statement that the backstop is not enforceable—extraordinary.

First of all, I am not responsible for the whereabouts of the Prime Minister. It is not customary for the Prime Minister to copy me in on her travel plans and I have made no request for her to do so. Related to that, I would say that whatever the House may decide in the course of this evening, that would not carry an implication for the presence of the Prime Minister because there was no expectation that she would be here to take part in any vote this evening. There was only an expectation that she would otherwise have been here tomorrow. Nevertheless, the hon. Gentleman has made his point with his usual force and vigour, and we are grateful to him for that.

Yes, I am saving the hon. Gentleman up, but we look forward to his constitutional exegesis with due anticipation.

Further to that point of order, Mr Speaker. Has the Prime Minister given you any indication as to whether she will be back in time to face this House at Prime Minister’s questions on Wednesday? By the sound of things, she has a pretty arduous itinerary for just one day.

Order. I am grateful to the hon. Member for City of Chester (Christian Matheson) for his point of order. I have received no intelligence about arrangements for Wednesday, but I have no reason to suppose the Prime Minister will not be here. I dare say the hon. Gentleman will receive knowledge of the situation in due course. I think we should leave it there.

On a point of order, Mr Speaker. Given the events of today, I wonder whether you could guide the House on if and when, in the absence of the vote that was scheduled for tomorrow night, the Government have to come back to put a meaningful vote before the House; or are there mechanisms by which they may try to avoid doing so, given the mood that has been expressed in this House over the past week or so?

It is up to the Government when to arrange for the debate and the vote or votes that would flow from it, but the fact that it is incumbent upon the Government to come forward with a new date is very clear. That cannot be gainsaid. It has been made very clear from the Treasury Bench on several occasions—I will not say innumerable, but they are innumerable for me now because I do not know exactly how many there were. The Leader of the House has made clear repeatedly in response to questions that the debate, and the vote or votes flowing therefrom, would be rescheduled as soon as the Government felt that they were in a position, as they see it, beneficially to update the House. There is therefore no reason to suppose that that debate and votes flowing from it will not take place and every reason to believe that that debate and votes flowing from it will take place. It would be literally unconscionable if there were any thought to the contrary.

I am sick of people saying, “Oh, come on.” These are points of order, of which the Chair must treat. Members must choose whether they wish to raise points of order. If they do, the Chair must respond. These are, if I may say so, somewhat unusual circumstances, so it is not entirely surprising that Members wish to raise points of order.

On a point of order, Mr Speaker—and this might actually be a point of order. In the business statement earlier, the Leader of the House referred several times to “resuming” the debate. Now, if the Prime Minister comes back with any amendments to the agreement, will it constitute a new debate? Some of us have contributed to the previous debate and, given that the Prime Minister said that our contributions were so influential, we would like to contribute again to the new debate.

As far as I am concerned, the answer is that it depends on what is brought back to this House. If what is brought back to this House is a new agreement and framework document, the expectation would be that a new motion would be required. Flowing from that, effectively a new debate would need to take place. If, on the other hand, what comes back is different from what I have just said—and, in a sense, less than what I have just signalled—then that would not necessarily follow, so it depends what comes back. What I do want to say to the hon. Gentleman and to other Members who are quizzical on this front—I am very confident that there are Members on both sides of the House who take these matters extremely seriously—is that the Chair, within the powers of the Chair, will do everything possible to facilitate the fullest debate in and votes by the House. There can be no escape from that reality.

Further to that point of order, Mr Speaker. House of Commons Twitter, under #AskTheCommons, said this afternoon:

“Now the Government has made a statement that political agreement on withdrawal agreement & future framework has been reached, the requirements for the Government to make a statement to the House by 21 Jan on ‘no deal’ has been superseded.”

If the Government now do not bring back any vote because their position unravels and we end up in a no-deal situation again, does that mean we still will not get a vote by 21 January, or has the Commons revoked that advice?

That was not advice from the House; it was a Twitter feed. Moreover, I am authoritatively advised—do not forget that I have been in the Chair since 2.30 pm, so I have not been attending to those matters—that the record has since been corrected. I believe it has been corrected, or certainly that the intention is to correct it. I have been advised that it has been corrected, so that is no longer the situation. I do not think I need to elaborate further, although if there is concern or anxiety, or even confusion, I am sure that the right hon. Lady will return to the matter tomorrow. However, the concern that I think she had, quite understandably, should now be allayed by what I have just said. It was, I think, an innocent error, but it was an error.

On a point of order, Mr Speaker. The agreement appears to have been initialled by the Prime Minister about 10 days ago. Am I right in construing what you have just said as meaning that if there is a new withdrawal agreement so initialled a second time with a new signature, then effectively the entire procedure—whether with regard to the question of the contempt motion or, for that matter, with regard to the question of section 13 and its effectiveness—is that we have to go back to square one?

Broadly speaking, the answer is yes. We would have to treat it as a discrete item that was beginning and needed to be continued and completed, and I would expect that that which had applied to the existing, but as yet by the House unapproved, agreement would be sought in respect of the new agreement. That would be the premise from which I would work.

I am grateful, Mr Speaker. As I understand it, there has been a clarification on the House of Commons Twitter feed, but it simply says:

“Further proceedings under section 13 of the European Union (Withdrawal) Act 2018 are a matter of legal interpretation and not for the House to determine.”

That seems to raise huge questions about whether this House could be guaranteed a vote if the Government were to end up slipping into no deal. Given the seriousness of this, it would be very helpful to have formal clarification from you or from the Clerks.

The Clerks’ advice is that where there is a statutory issue, it would not be for the House to rule on that, and that it is not for the Chair to seek to give a ruling on that matter. In so far as the right hon. Lady is concerned about the prospects of debate on these matters in the light of evolving circumstances and the pursuit of a revised agreement, I have sought to reassure her that debates will happen, because the commitment to those debates is manifest, explicit, and, it seems to me, to all intents and purposes irrevocable. What I do not feel I can pronounce upon is matters of law. I certainly would not be in a position to do that, if I were required to do it at all, now. But in so far as the right hon. Lady and others are seeking assurance that the debates that they thought they were about to get will still be forthcoming, with votes flowing therefrom, I think I can, without fear of contradiction, give those assurances to Members, whatever their political opinion on the matter.

So are you confirming, then, Mr Speaker, that there is no guarantee that this House would have a vote on a no-deal situation if the Government slipped into that, and that that would simply be a matter for the courts to decide rather than this House being able to ensure that it had a vote under the withdrawal agreement legislation?

I do not feel that I can rule on that now. I am certainly expecting that there will be debate and votes on that very specific and, I accept, extremely important point. I do not want to give an incorrect answer or a misleading impression, and I think it is better for me to reflect on that, and, if it would be appropriate, to come back to the right hon. Lady or to report to the House, because it is an extremely salient issue. I think that otherwise I stand by the rest of what I have said, and on that particular point I would like to take stock.

On a point of order, Mr Speaker. Further to the point of order raised by the hon. Member for Stone (Sir William Cash), if there were to be any changes to the agreement and the motion, would the assumption be that this House would be entitled to see any changes to the advice that the Attorney General gives on that?

Well, that is hypothetical. That does not mean that it is not an important question, but it is hypothetical at this stage. I am not sure that I could give such an automatic assurance to the hon. Gentleman. It may be that efforts would have to be made to secure a commitment to the release, or publication, of that advice. I think there would be a strong moral basis for expecting that that advice would be published, in the light—

I am very heartened to see a former Director of Public Prosecutions nodding vigorously in assent to my proposition, considering that he is a distinguished lawyer and I am not. There is a strong moral basis for believing that that to which the Government eventually acceded last week would be something to which they would accede in the new circumstances, especially as the new circumstances were the result of failure to reach agreement on the earlier proposals and their own actions thereafter.

It may not be worth waiting for after all that, Mr Speaker, but on a point of order. You said earlier that you thought that it would be better and more courteous to the House if there was a proper process of preventing the debate later tonight and tomorrow, and preventing the vote. I get that the mood in the House today has been that it would prefer the Government to proceed with the debate today and tomorrow, and that if they are not going to, then at least we should be allowed to vote on whether we are voting or not. As I understand it, what the Government are intending to do is that when it comes to the Orders of the Day, when you say “What day?”, one of the Whips will shout “Tomorrow”—which here does not really mean tomorrow but some other day as yet unspecified. It is within the gift of the Government, if they wanted to, to allow any Member of the House to move the Orders of the Day, because that can be moved by any Member of the House, as was decided in decisions of the House in 1860, 1886, 1907 and 1908, and on many other occasions. I just wonder, if many Members of the House were to shout today, would you not be well advised to take one of them rather than the Whip?

If they are not Ministers, I am not in a position to do so. If the Government themselves were content for another Member to shout “Now” and for the debate to take place, that debate could take place. However, I must say to the hon. Gentleman that over the last five hours or so—just under five hours—since the Prime Minister’s initial statement, the Leader of the Opposition’s reply and her reply to him were completed, I have had no indication from the Government that they are minded to adopt the approach that I thought would be preferable and more popular with the House—namely, putting the Question on a motion that the House should adjourn and allowing it to be voted upon. Given that the Government have not done that, which they could do, and just accept the democratic will of the House, it seems rather improbable that they would want to share their privilege in respect of moving an Order of the Day. They know that they have the exclusive right to move an Order of the Day in relation to their own business, so I cannot see that they are likely to indicate otherwise.

This whole proceeding has been extremely regrettable—that is manifest; it is palpable and incontrovertible. This is not the way that the business of the House is ordinarily conducted. It is a most unfortunate state of affairs, but we must all act within our powers and not ultra vires. I have sought to do everything I can for nearly nine and a half years, and I will go on doing so, to support the House and Back Benchers in particular, holding ministerial feet to the fire as necessary, but I have to operate within the powers that I have, not those that some Members perhaps would like me to have.

On a point of order, Mr Speaker. I was in the Chamber earlier when you wisely set out the two options available to Her Majesty’s Government on how they could postpone a debate. One can only presume, from earlier interventions, that they have chosen one of those two options. Can you confirm my understanding of what you said earlier—that both options available to the Government were in order and therefore that whichever route the Government decide to take will not be disorderly?

Nobody suggested that anything was disorderly. I do not want to be unkind to the hon. Gentleman—[Hon. Members: “Go on!] No, I do not want to be unkind to him. I have known him for probably 30 years, and he is a very dedicated public servant, so I certainly do not wish to be unkind to him, but it is rather a red herring that he is raising. Nobody has suggested that there was anything disorderly. I am merely suggesting that this is a most unusual circumstance, and I am not aware of any precedent for the handling of a matter of this magnitude in this way.

Reference was made earlier to how relatively frequently Ministers choose not to proceed with the business, and a Whip on duty will say, “Not moved.” It is perfectly true that that happens relatively frequently. It certainly does not happen frequently and has not happened in my memory at all in relation to a matter of this magnitude, in respect of which a business of the House motion was passed six days previously. That is my point. It is a simple point. I think it is a powerful point, and I am certain it is a point that the hon. Gentleman will grasp.

On a point of order, Mr Speaker. You are right that these are probably unique circumstances. I certainly have moved a motion from the Back Benches that the Government have not chosen to move, and we have proceeded to debate and vote on it, so that clearly can be done. I understand your point about this being Government business, but did that argument not fall when the business of the House motion was passed and it became the business of the House? It is no longer for Government to decide; it is for the House to decide.

Standing Order No. 46 on page 45 certainly gives you discretion in relation to suspension of debate. I was going to shout “Now”, but unfortunately the hon. Member for Rhondda (Chris Bryant) spoiled my fun by putting that suggestion on the record. It seems to me that there is some discretion in these unique circumstances, and it is clear from the tone of the House that it is very unhappy with the way the Government are proceeding.

It is clear that there is much unhappiness. It is important that we be accurate about these matters. I am afraid that I cannot take an instruction to the House in relation to a Government Order of the Day from other than a Government Minister. The hon. Gentleman will know, from his extensive experience as a Member in charge of a veritable raft of private Members’ Bills, that it is, in those circumstances, for him and him alone to decide whether to proceed with or defer an Order of the Day where he is in charge.

I know what the hon. Gentleman has said, and I have explored all this with the Clerk of the House many a time and oft over the last 48 hours. In this instance, even though the business of the House motion was agreed by the House, the Order is the property of the Government, and it is therefore for the Government to decide whether or not to move the business. If Members find that unsatisfactory, it is perfectly open for Members to change the procedures of the House, but I cannot change them on the hoof.

On a point of order, Mr Speaker. You have rightly said that today has been an exceptional day. I can certainly confirm that, in 21 years as a Member of Parliament, I have never experienced a day of this nature. Clearly, this is the sort of day on which a motion of no confidence in the Government should be moved. Can you help me, Mr Speaker? Is an Opposition party that is not the official Opposition in a position to move such a motion of no confidence?

It is open to a representative of a party other than the principal Opposition to table such a motion. The ordinary working assumption is that such a motion is taken if it is proffered by the official Opposition. I will leave it there for now. I am not saying whether this is desirable or undesirable. I am the custodian of the rights of the House and of the rigorous application of correct procedure. I am sure the right hon. Gentleman, who is a former Deputy Leader of the House, readily acknowledges that. I will not duck my duty—I did not duck my duty on the contempt motion, and would not in comparable circumstances again—but I come back to the point that one has to operate within one’s powers.

On a point of order, Mr Speaker. Anybody observing these proceedings today would say that you have played a blinder in trying to get this House to demonstrate what it wants and to say exactly what is happening with this meaningful vote. It looks likely—it is almost certain—that the Government will have their say, which means that we will not be able to vote on their cancelling this meaningful vote, but I wonder whether we may have an indicative vote of this House. When the Order of the Day is read and the Whip responds, if enough of us shout “Now” while Government Members shout “Tomorrow”, would that express the indication of this House, and how would we get that formally recognised?

I have heard what the hon. Gentleman has said—he is an experienced parliamentarian and a passionate one—and I would say to him that we rule in this place by rules, not by shouting. That said, I have periodically over the years exhorted the hon. Gentleman not to shout, and on the whole my efforts to that end have been spectacularly unsuccessful. I have no reason to expect that if I were to exhort Members not to shout when they are minded to do so this evening, I should be any more successful. The hon. Gentleman and other Members will do what they wish to do at the appropriate moment.