Legal Advice: Prorogation

Debate between Lord Clarke of Nottingham and Geoffrey Cox

Wednesday 25th September 2019 Commons Chamber

[The Attorney General]

I am extremely grateful to the hon. and learned Lady for her kindness and solicitousness for my welfare. I am particularly attracted by the tempting prospect that she dangles before me, but she will know that I am obliged by the convention to say that I am not permitted to disclose the advice that I may or may not have given to the Government. But I repeat: the matter is under consideration.

[Mr Kenneth Clarke (Rushcliffe) (Ind)]

Does my right hon. and learned Friend agree that if, in the future, we were unfortunate enough to have a Corbynista Labour Government—[Interruption.] That is obviously not thought to be a very likely prospect, but if that misfortune were to occur, if that Government were to decide to suspend the House for a long period because there was a parliamentary majority against their principal policy, and if that Government also decided that constitutional law was not challenged by that, and challenged the right of the courts to overrule it, the Conservative party would be likely to get very excited. Can my right hon. and learned Friend reassure me that this Supreme Court judgment has settled that matter finally, that this kind of action can never be taken by any future Government and that parliamentary sovereignty therefore remains intact?

[The Attorney General]

I certainly can say to my right hon. and learned Friend that it is important when we reflect on judgments that may be seen to go against the short-term interests of any particular Government that we remember that they stand as precedents and principles for the future. I invite all my hon. Friends to reflect on precisely the situation that my right hon. and learned Friend has set out before the House, which is that this would stand for Governments of a colour of which those on my side would not approve and for their actions too. It is important that when we comment on the decisions of judges we remember that those judges are both impartial and independent, and they are entitled to reach the view that they have reached. We are fortunate in this House to have one of the finest judiciaries, I believe, in the world, and it is important to remember that the principles they set apply to both sides, as my right hon. and learned Friend has said.

European Union (Withdrawal) Act

Debate between Lord Clarke of Nottingham and Geoffrey Cox

Tuesday 15th January 2019 Commons Chamber

[Mr Clarke]

If I give way to my right hon. Friend, who is a good friend, I shall suddenly find that everyone is leaping up, and I will not keep my word if I start giving way.

The outcome that I wish to see is, as it happens, the same as the Government’s declared outcome. Keeping to the narrower matters of trade and investment, we should keep open borders between the United Kingdom and the rest of the European Union and have trade relationships that are as free and frictionless as we have at the moment. I shall listen to people arguing that that is not in the best interests of the United Kingdom and future generations, but that is an impossible case to make. It is self-evident that we should stay in our present free trade agreement. We cannot have free trade with the rest of the world while becoming protectionist towards continental Europe by erecting new barriers. Nobody said to the electorate at the time of the referendum that the purpose of the whole thing was to raise new barriers to two-way trade and investment.

It seems quite obvious, and factually correct in my opinion, that if we wish to keep open borders—the land border, which happens to be in Ireland, and the sea border around the rest of the British Isles—we will have to be in a customs union and in regulatory alignment with the EU, which would greatly resemble what we call the single market. All this stuff about new technology may come one day when every closed border in the world will vanish, but under WTO rules we have to man the border if there are different tariffs and regulatory requirements on either side. That is where we have got to go, and we will have to tighten things up sooner or later.

The Government keep repeating their red lines, some of which were set out at an early stage long before the people drafting the speeches had the first idea about the process they were about to enter into. Most of the red lines now need to be dropped. The standard line is that we cannot be in a customs union because that would prevent us from having trade agreements with the rest of the world, which is true. We cannot have a common customs barrier enforced around the outside of a zone if one member is punching holes through it and letting things in under different arrangements from other countries. For some, that is meant to be the global future—the bright and shining prospect of our being outside the European Union, which nobody proposed in the referendum. As far as I can see, such things stemmed from a brilliant speech made by my right hon. Friend the Member for Uxbridge and South Ruislip (Boris Johnson), who was praised for putting an optimistic tone on it all. He held out this vision of great countries throughout the world throwing open their markets to us in relief when we left the European Union and offering us better terms than we have spent the last few years obtaining when taking a leading role in negotiating together with the European Union.

Of course, the key agreement that is always cited is the trade agreement that we are going to have with Donald Trump’s America, which is a symbol of the prospects that await us, and China apparently comes next. I have tried in both places. I have been involved in trade discussions with those two countries on and off for the best part of 20 years. They are very protectionist countries, and America was protectionist before President Trump. I led for the Government on negotiating the Transatlantic Trade and Investment Partnership. The reason why the EU-US deal had the funny title of TTIP was that we could not call it a free trade agreement, because the Americans said that Congress was so hostile to the idea of free trade that we could not talk about such an agreement, so we had to give it another title.

We got nowhere, even under the Obama Administration, because we wanted to open up public procurement and access to services, including financial services, in the United States, and I can tell you that it was completely hopeless trying to open up their markets. We are told that things are different with President Trump, that the hopes for President Trump are a sign of the new golden future that is before us. However, President Trump has no time for WTO rules. He has been breaking them with some considerable vigour, and he will walk out of the WTO sooner or later. His view of trade deals is that he confronts allied partner countries and says that the United States should be allowed to export more to them and that they should stop exporting so much to the United States. He has enforced that on Canada and Mexico, and he is having a good go at enforcing it on China.

President Trump’s only expressed interest in a trade deal with Britain is that we should throw open our markets to American food, which is produced on an almost industrial scale very competitively and in great quantities. That trade deal would require one thing: the abandonment of European food and animal welfare standards that the British actually played a leading part in getting to their present position in the rest of the EU, and the adoption of standards laid down by Congress—the House of Representatives and the Senate—in response to the food lobby. There is no sovereignty in that. Nobody is going to take any notice of the UK lobbying the American Congress on food standards. It is an illusion.

If we had enforced freedom of movement properly before all this, we would not be in this trouble. All the anti-immigrant element of the leave vote was not really about EU workers working here. We were already permitted to make it a condition that people could only come here for a prearranged job, and we were permitted to say that someone would have to leave if they did not find a new job within three months of losing one. Everybody in this House and outside falls over themselves with praise for the EU workers in the national health service and elsewhere, but it is another illusion.

Given the present bizarre position, my view is that we must get on with the real negotiations, because we have not even started them yet. It is not possible to start to map out the closest possible relationship with the EU if we are going to be forced to leave. We are in no position to move on from this bad debate and then sort everything out by 29 March. It is factually impossible not only to get the legislation through but to sort out an alternative to the withdrawal agreement if it is rejected today.

We should extend article 50, but that involves applying to the EU and it implies getting the EU’s consent, which would be quite difficult for any length of time. I advocate revoking article 50, because it is a means of delay. We should revoke it—no one can stop us revoking it —and then invoke it again when we have some consensus and a majority for something. I will vote against it again, but there is a massive majority in this House in favour of invoking article 50.

[The Attorney General]

Will my right hon. and learned Friend give way?

[Mr Clarke]

I will annoy everyone else by giving way this once.

[The Attorney General]

I am admiring my right hon. and learned Friend’s speech minute by minute, but there is one point on which he is wrong. We cannot revoke article 50 unless we provide satisfactory evidence to the European Union that we are cancelling our departure—not suspending it, not pausing it, but cancelling it.

[Mr Clarke]

I have not been in legal practice for 40 years so, if that is the case, I will examine it and look at what authority my right hon. and learned Friend gives me. Would we be prevented permanently thereafter from ever invoking article 50 again? I would like to examine that proposition. If that is the case, we have to extend article 50, but we cannot carry on having this chaotic debate and, in the next 70 days, coming to conclusions that commit this country to a destiny that will have a huge effect on the next generation or two, because we are heading towards leaving with no deal at all, which would be just as catastrophic as he described.

The vast majority of Members of Parliament are flatly against leaving without a deal. For that reason, pragmatism and common sense require us to vote for this withdrawal agreement to try to get back to some sort of orderly progress.

Withdrawal Agreement: Legal Position

Debate between Lord Clarke of Nottingham and Geoffrey Cox

Monday 3rd December 2018 Commons Chamber

[Mr Kenneth Clarke (Rushcliffe) (Con)]

Whether that will cheer people up or not, I have no idea.

First, I sincerely congratulate my right hon. and learned Friend the Attorney General on his masterly exposition of the facts and the law, which put paid to quite a lot of the paranoia and conspiracy theories that have been running around all too often in our European debate.

Secondly, does my right hon. and learned Friend accept that it was central to the Good Friday agreement—the Belfast agreement—that both sides committed themselves timelessly to an open border, and that will be all wrapped up if we ever move to the Northern Ireland protocol? It would be quite shameful if the European Union, the Republic of Ireland or the United Kingdom were given the right unilaterally to terminate that arrangement at a time of their political choosing, so this is perfectly sensible. Does he also agree that both the United Kingdom and the European Union will have reasons to hesitate before going into the protocol—they may prefer to extend the transition agreement—and that neither of the parties will have any political motive for staying indefinitely in that protocol?

In his exposition, I think my right hon. and learned Friend has done what he was trying to do: got rid of all these theories about the ECJ still being involved, as it obviously will have to be, in the rights of British citizens after we leave, and enabled the House to get back to the real political debate that we have to have in the next few days.

[The Attorney General]

I am most grateful to my right hon. and learned Friend for his question. The truth of the matter is that the Northern Ireland protocol would represent a solemn commitment to the people of Northern Ireland that this Government will honour and respect the Belfast agreement. I make no bones about it: I would have preferred to have seen a unilateral right of termination in the backstop. I would have preferred to have seen a clause that allowed us to exit if negotiations had broken down irretrievably, but I am prepared to lend my support to this agreement because I do not believe—[Interruption.] I am most grateful for those cheers of applause. I do not believe that we are likely to be entrapped in the backstop permanently. I can give reasons why I say that, but my right hon. and learned Friend has foreshadowed them. So I agree with him: this represents a sensible compromise. It has unattractive and unsatisfactory elements for us, but it is for the House to weigh it up against the potential alternatives and to assess whether it amounts to a calculated risk that this Government and this House should take in these circumstances, weighed up against the realities of the alternatives.