European Union (Withdrawal) Bill

David Jones Excerpts

Committee: 2nd sitting: House of Commons
Wednesday 15th November 2017 Commons Chamber

[Mr Leslie]

Regional aid—and the financial side—probably has more to do with the EU, and the Government have to say how they would substitute that. All these policies are much affected by our membership of the EEA. The only things not in the EEA are many of the customs union and trade policy arrangements. If we want a smooth Brexit—a soft Brexit, we might call it—membership of the EEA is by far the better arrangement. Rather than climbing every mountain rebuilding a trade relationship with the EU, as well as reaching all the free trade agreements with the rest of the world, we could retain our membership of the EEA and with it those trading benefits with the rest of Europe, while still being free to make trade agreements with those other countries we could negotiate with. That would be a bite-size way to deal with this change and more effective than having to climb all those mountains simultaneously.

[Mr David Jones (Clwyd West) (Con)]

How could the UK continue to enjoy the trading benefits of EEA membership without being a member of the European Free Trade Association?

[Mr Leslie]

I was a member of the International Trade Select Committee in the last Parliament and recommended that we be a member of EFTA. It is certainly something to consider. It is necessary that we be a part of those alliances if we are to retain some of the trading benefits and links we have. If we want to avoid a cliff edge and a mountain of work, starting from scratch again, we have to retain our membership of the EEA and, at the very least, have a proper assessment from the Government of the costs and benefits of leaving. To do otherwise would be deeply irresponsible.

--- Later in debate ---

[Mr McFadden]

I want to make a few points about new clause 22, which my hon. Friend the Member for Lewisham East (Heidi Alexander) spoke to a little while ago. Language can obscure things as well as shed light on them, and that is true of much of our Brexit debate. For example, we were told that this was all about taking back control but, as we have seen many times since the referendum, the Government have stoutly resisted giving control to Parliament, resisted publishing a White Paper, and resisted allowing us a meaningful vote. They have finally caved in on having legislation, but they are still resisting allowing us a meaningful say on a real choice, rather than a choice between whatever is negotiated and no deal and WTO rules. We were told that Brexit would save huge amounts of money, yet one of the critical issues in the talks is how to settle a multi-billion pound divorce bill that was mentioned by no one during the referendum campaign. So language can obscure as well as shed light.

Perhaps this is nowhere more true than in all this talk about “the negotiations”. Unsurprisingly, the public place great faith in anything called “negotiations”. If I were buying a house from someone—I hesitate to tread here after yesterday’s exchanges—who was asking a certain selling price and I offered a certain purchase price, the negotiation would involve us meeting somewhere in the middle. There might be parts of the Brexit talks that involve negotiation in that sense of the word.

I serve on the Brexit Select Committee, but I should add that I do not seek to speak on its behalf here today: this is my interpretation of the situation. Last week, the Committee spent a couple of days in Brussels and Paris talking to some of the people involved in the so-called negotiations. There may be negotiation about parts of this process, particularly in phase 1, but the point that I want to make—which refers to new clause 22 and the European Economic Area—is that our future relationship is less about negotiation than about a fundamental choice. What is the relationship that we want to have with the European Union? Where do we want to be in relation to its system, which is a market with rules? The people that we talked to about this round of talks made it pretty clear that this is a choice. It is a decision.

Basically, there are two ways of doing this. The first is the way outlined by my hon. Friend the Member for Lewisham East—that, having voted to leave the European Union, we remain part of its single market system and adhere to the rights and obligations that that gives us, and in so doing, we put the economic prosperity of our people first. That is one way, and I wholeheartedly back my hon. Friend’s assertion that the referendum did not decide this question. The referendum decided our membership of the institutions. The referendum did not decide on the manner of leaving the European Union. There are countries outside the European Union that take part in this system, and we know which they are. I do not think that this is a perfect solution by any means. There is, of course, the issue of having a say in the rules, and whatever our say is outside, it will not be like the say that we have now. My hon. Friend the Member for Lewisham East covered that as well.

The other option involves a free trade agreement, something akin to what has been negotiated with other countries. This matters to our economy. We have talked a lot in these debates—and I have been guilty of it myself—about the importance of manufactured goods. We have talked a lot about cars, we have talked a lot about aerospace, and we have talked a lot about agricultural products. All those are all hugely important to our economy, but 80% of it consists of services. We are hugely successful at them, and we are hugely successful at exporting them. Tens and hundreds of thousands of jobs are sustained by financial services, insurance, legal services, business services and so on. I must say to those who advocate the FTA option that the blunt truth is that no existing FTA would give us anything like the access to the services market that we currently enjoy as members of the single market.

That, fundamentally, is the choice that we must make. The Solicitor General resisted the existing comparisons, as the Government have throughout: they have said, “We will have a bespoke arrangement that is somehow different from this.” Let me tell the Solicitor General candidly that not a single person on the other side of the table last week thought that that was possible.

This is a decision, a choice. What kind of Brexit will we have? Fundamentally, at some point, the Government will have to face up to the truth, be candid with their Back Benchers and the House as a whole, and be candid with the public. The choice, in the end, is not just a choice between systems, but a choice between economics and nationalism. It is a choice about whether we put the prosperity of our constituents first or the nationalist ideology that is driving this agenda, and I know which I prefer.

[Mr David Jones]

I wish to speak about amendments 87 and 217, tabled by the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards) and his Plaid Cymru colleagues.

Amendment 87 provides that the expression “EU-derived domestic legislation” in clause 2(2) should not include

“any enactment of the United Kingdom Parliament which…applies to Wales and does not relate to matters specified in Schedule 7A to the Government of Wales Act 2006”,

and seeks to apply the same provision, mutatis mutandis, to Scotland and Northern Ireland. The matters specified in Schedule 7A are those matters that are reserved to the United Kingdom Parliament under the terms of the Welsh devolution settlement. According to the explanatory statement attached to the amendment, its purpose is to

“alter the definition of EU retained law so as only to include reserved areas of legislation. This”,

it explains,

“will allow the National Assembly for Wales and the other devolved administrations to legislate on areas of EU derived law which fall under devolved competency for themselves.”

However, the actual effect of the amendment would be far more wide-ranging.

The purpose of clause 2(1) is specifically to preserve EU-derived domestic legislation after exit day in order to ensure—as we have heard—that there is a coherent statute book. The expression “EU-derived domestic legislation” is defined in clause 2(2), and the category of legislation that is thereby preserved is very widely drawn. The effect of the amendment would be that any legislation applicable to Wales that might otherwise fall within the definition of EU-derived domestic legislation would fail to do so if it were also an enactment of the United Kingdom Parliament. There will be a wide range of such legislation in force that predates devolution and also postdates it, right up to—I venture to suggest—the enactment of the Government of Wales Act 2017.

--- Later in debate ---

[Wera Hobhouse]

Does the right hon. Gentleman agree that if we want to trade with other nations, we must have some form of agreement with them? We cannot just trade and have our own arrangements and regulatory systems without any agreement with other nations or states who want to trade with us and without a body acting as referee. We therefore must at some point be part of some sort of agreement or arrangement with other countries, otherwise we will just sit there somewhere in the North sea on our own.

[Mr Jones]

That may well be so, but I invite the hon. Lady to digest the terms of article 126 of the EEA agreement and then consider whether at the moment of our departure from the EU we will still be subject to the EEA agreement. I believe we will not.

For the reasons I have outlined, I invite the hon. Member for Carmarthen East and Dinefwr not to press amendment 217, too.

[Jonathan Edwards]

It is a pleasure to follow the right hon. Member for Clwyd West (Mr Jones). In the normal course of events he would be responding to our amendments, but I must say that much of what he said today went completely over my head; I will have to read it tomorrow in Hansard and try to dissect it. Perhaps we can debate it on another occasion.

I rise to speak to amendments 217 and 87, tabled in my name and those of my hon. Friends. They are probing amendments, so I do not aim to detain the House for a protracted time. Along with amendment 64, amendment 217 would exclude the EEA agreement from the Bill, allowing the UK to keep open the option of remaining in the EEA as the negotiations proceed. Currently, the Bill seeks to repeal the domestic effects of the EEA agreement, but the British Government have given no explicit notice to withdraw under article 127 of the EEA agreement. Our departure from the single market is therefore not inevitable, and there is still time to change to a path that puts the economy first, as many hon. Members have said.

Our continued membership of the single market and the customs union is absolutely crucial to the viability of the Welsh economy beyond Brexit. In wanting to leave the single market and the customs union, the Government are contradicting themselves. The European red tape that the Brexiteers belittle as a regulatory burden also safeguards the environment, keeps our food safe and our rights upheld. By taking the UK outside of the EEA and the customs union, the Government would be generating a gratuitous amount of red tape for our key exporters. Employers in my constituency would face unnecessary logistical and financial barriers to sell to their European markets, which are by far the most important for our exporters.

We have been told again and again that a hard Brexit will reinstate the UK as global power. Despite sounding appetising, that is wholly illogical. It is counter-intuitive to say that removing the UK from the most successful and richest economic bloc will in any way make the UK more global. In reality, the Tories are reverting to their 19th-century policy of splendid isolationism. To leave the single market and the customs union is to voluntarily exclude ourselves from having unencumbered access to the markets necessary for the post-Brexit longevity and viability of the economies of Wales and the UK.

The statistics do not lie. Wales exports some £16 billion-worth of goods every year—more than the Welsh Government’s entire budget. Despite reducing access to our main markets in Europe, the Government have no guarantee of any access to new markets after exit day. Some 200,000 jobs across Wales are sustained by the single market and the customs union. By wrenching us out of both frameworks, the British Government will be rolling the dice on the livelihoods of these 200,000 Welsh people.

[Jonathan Edwards]

The Chairman of the International Trade Committee speaks with great expertise. That was one of the first questions that I asked the Secretary of State for International Trade when he was appointed, and it has been forgotten in this debate. The Government informed us at the time that the transition would be seamless, but it appears that that might not be the case.

These are not idle threats; this is the reality. Only yesterday, Aston Martin’s CEO came here and told Members directly that a no-deal Brexit would mean the cessation of production of their cars in the UK. That means their new flagship plant in the Welsh Secretary’s backyard in the Vale of Glamorgan could be pulled even before it begins production of the first car.

My concerns, and those of my Plaid Cymru colleagues, are entirely predicated on Wales’s national interests. That means ensuring full and unconstrained access to our important European markets, which are the destination for 67% of all Welsh exports and 90% of our food and drink exports. It means our NHS, universities and industries being able to recruit skilled workers from across Europe. It means putting Welsh jobs, wages and, fundamentally, my nation’s future first. It is not feasible that trade deals with Australia, New Zealand and other far-flung nations will replace the level of economic activity that the EU trade sustains in Wales.

Leaving the single market and the customs union does not mean going back to some comfortable status quo. We need a reliable and effective system in place to prevent potential catastrophe on exit day. We have the option of remaining in the single market and the customs union, as has been made clear by chief negotiator Michel Barnier during the discussions to date. Maintaining those vital economic frameworks would be the most prudent economic path to take, instead of endeavouring to create something new and untested that could not possibly replicate the benefits of EEA status.

[Mr David Jones]

Before the hon. Gentleman leaves his discussion of EEA membership, does he not accept that article 126 of the EEA agreement provides explicitly that it applies only to members of the European Union and to the relevant members of EFTA? Given that we will be neither, how can it possibly apply to us?

[Jonathan Edwards]

That point was also made by the First Minister of Wales when he was against this position, before he changed to agreeing with Plaid Cymru. Surely we should be endeavouring to achieve what was promised by Brexiteers such as Daniel Hannan prior to the referendum. He said that the Norway solution would be the most applicable and best solution for the UK.

European Union (Withdrawal) Bill

David Jones Excerpts

Committee: 4th sitting: House of Commons
Monday 4th December 2017 Commons Chamber

[Jenny Chapman]

I have already given way quite a lot. If the hon. and learned Lady does not mind, I am going to crack on now. She will have a chance to make her own speech, and I look forward to listening to it.

[Mr David Jones (Clwyd West) (Con)]

rose—

[Jenny Chapman]

I will give way one last time, to the former Minister.

[Mr Jones]

Pursuing the same point, does the hon. Lady not accept that new clause 64(3), having provided that there should be no new frameworks created without the agreement of the devolved Administrations, would be a recipe for chaos, on the basis that if there were no such agreement, it would be impossible to create the frameworks that she seems to acknowledge as so desirable?

[Jenny Chapman]

The Joint Ministerial Committee said that it wanted frameworks to be created in this way, I think at the time when the right hon. Gentleman was a Minister, so I really do not understand what his objection is today.

We need look no further than Wales to learn of the practical benefits of devolution. It is right that Cardiff should decide the best way to support farmers in Wales, within an agreed framework but according to their needs and priorities. Jobs Growth Wales has so far supported the employment of 17,000 young people using European funding. That decision would not have been possible if the arrangements proposed by the Government had been in place at the time. When I was first elected, the Tories and the Lib Dems scrapped the almost identical future jobs fund in 2010. Such decisions were devolved for good reason, and we will support the devolved Administrations in keeping them. Amendments 42 and 337, alongside new clause 64, would allow the Government until the end of the transitional arrangements to create UK frameworks.

I want to make it clear to the Minister that in tabling these new clauses and amendments, Labour is attempting to assist the Government by enabling the devolved Administrations to be engaged in decisions that have a direct impact on their people. If the Government accept our criticisms and proposed improvements, Ministers will find that they have a less turbulent time in the months ahead. Do the Government really think that it is wise to pass a Bill to which the devolved Administrations are so hostile? Ministers need to focus on negotiating the best possible deal for all the people of the UK, not on embroiling themselves in constitutional rows with Edinburgh and Cardiff.

--- Later in debate ---

[Hywel Williams]

The hon. Gentleman has made that point already, and I agree with it.

In contrast to the EU internal market, the nature of the UK internal market appears to be self-evident and a matter of common sense to many people. It might be great and it might be something that has grown organically and suits us all, but how often have we seen apparently simple, clear and—crucially—unregulated systems descend into a writhing tangle of irreconcilable and conflicting interests? That is what might happen. We might wish for a simple UK internal market, but we might regret it if we wish for it. We will vote for new clause 64 but, if it is passed, we will give close consideration to how it could be improved through further amendments.

Subsidiarity is supposedly one of the governing principles of the European Union. Powers are supposed to be exercised as close to the citizen as possible. That model does not exist in the UK, where the UK Government remain sovereign. We rely on the separation of competences listed in the newly enshrined reserved powers model in the recently passed Wales Act 2017. This Bill, as it stands, undermines and reverses 20 years of the existence of the National Assembly for Wales.

Professor Rawlings, the professor of public law at University College London, in evidence to the Public Administration and Constitutional Affairs Committee on 31 October, highlighted the concern over what he describes as the double-hatted nature of the UK Government, meaning that they simultaneously represent the UK-wide Government and the Government of England. I raised that point during my speech on our first day in Committee. As I said earlier, this raises a concern not only about conflicts of interest, but about the fact that the subcultures, networks and assumptions of large Departments, including the Department for Environment, Food and Rural Affairs, are focused, almost unconsciously, on England. That has been a recurring theme throughout Select Committee evidence sessions. As I said with reference to the Department of Health, this is a long-standing difficulty.

In evidence to the Brexit Committee on 17 October, Laura Dunlop, QC said:

“In our prototype framework—whatever our internal market is destined to look like—at the moment, there is one party in the discussions that is wearing two hats, and that is the UK Government, who are also required to speak for England. That is a significant difficulty, in my view.”

The hon. and learned Member for Edinburgh South West and I were there to hear Laura Dunlop say that. On 24 October, Dr Viviane Gravey told the Welsh Affairs Committee:

“What I mean by giving greater powers is that during that period planned in the Withdrawal Bill, UK Ministers will be able to change the law that has been given back from Brussels, but the devolved”

Governments

“will not. There is then a question of whether any changes made will be in the interests of the whole of the UK or just of England.”

That is the question.

The United Kingdom consists of four countries—four political bodies—not just one. Democracy requires and values all voices, not just one. Devolution demands that all countries within the United Kingdom have a say in the future, not just one. Members will have the opportunity today to stop this Westminster power grab. If all the Opposition parties turn up to vote, and vote together in the interests of the devolved countries, we can stop this encroachment on Welsh sovereignty and put all four UK countries on an equal footing.

[Mr David Jones]

It is a great pleasure to be asked to address the Committee as a lonely Welsh voice in this Scottish enclave south of the Gangway. I should like to say how impressed I am with my new Scottish colleagues, and with the way in which they stand up for their constituencies and for Scotland.

It was always predictable that clause 11 would be one of the more contentious clauses in the Bill, given that it impinges on the devolution settlements that have been created over the past 20 or so years. When we consider what the clause seeks to achieve, it is important to consider the history of devolution in this country. In the case of Scotland and Wales, it was implemented as a consequence of the two referendums that were held in 1997. That was some years after the United Kingdom became a member of what was then the European Economic Community. Indeed, all our devolution legislation was put in place after we joined. It is important to remember that, at the time of accession to the European Union, devolution was not contemplated.

It was in the context of our membership of the European Union that the various devolution settlements were crafted. The powers that were conferred on the new devolved bodies are consequently subject to overriding EU law, regulations and common frameworks, the principal purpose of which was to protect and preserve the integrity of the European single market, as we have heard repeatedly today. It is a fact, however, that as a consequence of the protection of the European single market, those reservations have operated to protect what I am quite happy to call the UK internal market—

[Chris Law (Dundee West) (SNP)]

There is no such thing.

[Mr Jones]

I hear the hon. Gentleman saying from a sedentary position that there is no such thing. The fact is that there is such a thing, and furthermore, after we leave the European Union, the existence of such an internal market will become ever clearer.

[Pete Wishart]

Does the right hon. Gentleman think that France has a French internal market and that Germany has a German internal market, or are they just national economies? Does Perthshire have a Perthshire internal market?

[Mr Jones]

I have never been to Perthshire but I am sure that it is a delightful place. In this country, we have four countries and three devolved bodies, which have competence in the area of economic development, among other things. The hon. Gentleman and I might be at odds on this, but I take the view that there is a United Kingdom internal market. He can come to the contrary conclusion if he wishes.

[Hywel Williams]

I am intrigued. Can the right hon. Gentleman identify anyone who has spoken in the House today who has argued against having a UK internal market?

[Mr Jones]

No, but I can identify several people who have denied its existence. Clause 11 seeks to ensure that the integrity of the internal market is not compromised, by preserving the restrictions that prevail in respect of EU law.

It is quite clear that the proposals in clause 11 have caused immoderate anger in certain quarters. The SNP Scottish First Minister and the Labour Welsh First Minister actually joined forces to describe what is proposed as a “naked power grab”, a phrase which has been repeated again and again during this debate, but the fact is that it is nothing of the kind. The competences that are the subject of the retention proposed by clause 11 have never been exercised by the devolved authorities since devolution was first implemented. In practical terms, not one iota less power will be exercised in Belfast, Cardiff or Edinburgh than in the current state of affairs. If there is a diminution in power, it is very much theoretical.

Since the devolved bodies first condemned the proposals in the summer, it is fair to say that their position has moderated considerably. However, I find it intriguing that that position does not appear to have moderated in this House. Indeed, certain Opposition representatives seem to be at odds with their own parties in the devolved areas. Preserving the UK internal market is, after all, extremely important to every constituent part of the United Kingdom. Some 63% of Scottish exports go to the rest of the UK. For Northern Ireland, the equivalent figure is 60%. In Wales, it is a bit less at 49.2%, but I suggest that that is due to the distorting effect of Airbus exports, which form a disproportionately large element of the Welsh economy. Whichever way one looks at it, it is therefore important to guard against any policy divergence that might imperil or damage the internal market. It is also important to ensure that the UK Government have the power to conclude trade agreements with third countries post-Brexit, free from concern that the devolved authorities may be legislating in a manner contrary to the obligations contained in such agreements.

We have heard this evening that the provisions of clause 11 affect approximately 111 devolved competences in Scotland, 64 in Wales and an estimated 149 in Northern Ireland. Many of them exist in the fields of agriculture, the environment and fisheries, where it is generally agreed, not least by those who would be closely affected by market distortion, that it is necessary to preserve common frameworks. As my hon. Friend the Member for Berwickshire, Roxburgh and Selkirk (John Lamont) pointed out, we need to look at the individuals who are most likely to be affected by policy divergence. For example, NFU Cymru—the Welsh branch of the National Farmers Union—supports the retention of common frameworks so that the price commanded by Welsh lamb, which is certainly the highest-quality lamb in the United Kingdom, is not adversely affected by differing husbandry practices in other parts of the UK.

The UK Government have always made it clear that the retention of competence effected by clause 11 is intended to be only temporary. Decisions on where competences may lie in the long term will be taken at a later date. I fully agree that that should not take too long, and a Minister should indicate from the Front Bench what sort of timescale they anticipate the Government will adopt when deciding and agreeing with the devolved Administrations on where those competences should lie.

[Dr Whitford]

That is the problem. There is no timescale. This place is snarled up in dealing with Brexit work, and that pressure will be even greater after Brexit. Those of us from the devolved countries feel that the needs of our farmers and fishermen will be way down the agenda for the devolution work being done here.

[Mr Jones]

I remind the hon. Lady that I am also from one of the devolved countries, so I understand her point and I understand that a timescale is needed. My right hon. Friend the Secretary of State for Brexit has always made it clear that the devolved authorities will ultimately have considerably enhanced powers after this process is complete.

Mr Nigel Smith has been extensively quoted in this debate, and what he has to say is of some significance. He was the chairman of Scotland Forward, the campaign for a yes vote in the 1997 Scottish referendum, and he makes a businesslike and practical statement of the position:

“simply giving into demands from the devolved administrations for a complete takeover of powers would quickly fragment policy coherence threatening the function of the UK single market and even over time the political integrity of these islands.”

That would probably be quite welcome to certain Opposition Members. Nigel Smith continues:

“It would be necessary to establish where coherence was vital and where policy could be devolved or shared. There are also financial considerations in some areas. Temporarily retaining the powers in Westminster through clause 11 while this is assessed and negotiated seems nothing more than procedural common sense. As a long-standing devolutionist, I support the process on this basis.”

He is entirely right. It is common sense. We need to assess where powers properly lie, but that process should not take too long.

I am heartened that, at the Joint Ministerial Committee in October, the various Administrations agreed to work towards the establishment of the necessary frameworks. Contrary to what the hon. Member for Perth and North Perthshire (Pete Wishart) indicated, it is not a question of the United Kingdom Government imposing where those powers lie; it is a question of agreement. The communiqué that followed the meeting said:

“There will also be close working between the UK Government and the devolved administrations on reserved and excepted matters that impact significantly on devolved responsibilities.

Discussions will be either multilateral or bilateral between the UK Government and the devolved administrations. It will be the aim of all parties to agree where there is a need for common frameworks and the content of them.

The outcomes from these discussions on common frameworks will be without prejudice to the UK’s negotiations and future relationship with the EU.”

It seems to me that the United Kingdom Government and the devolved Administrations are moving positively towards agreement on where those competences should lie, but I stress that the process should be pursued as expeditiously as possible. I have a huge amount of sympathy for those on both sides of the House who have indicated that there is currently a degree of uncertainty. The best way of resolving that uncertainty is by working quickly and co-operatively with the devolved Administrations.

I therefore believe clause 11 should be supported by the House. I endorse once again what Nigel Smith, a practical devolutionist, has to say about the matter. I also believe those who are promoting the various amendments, most of which appear to be aimed at ensuring the powers that are repatriated pass straight to the devolved Administrations, should think again. Without a coherent agreement beforehand, there could be chaos in this country, which is frankly the last thing we want.

My hon. Friend the Member for Harwich and North Essex (Mr Jenkin) made some important points about the wider issue of devolution. We need to revisit the various institutions that operate the devolution settlements in this country. It is fairly clear that the JMC process is not working. It has been honoured by Governments of all stripes more in the breach than in the observance. Indeed, I believe that during the last Labour Government several years passed without a meeting of the JMC. This cannot be right. It is important that the United Kingdom Government and the devolved Administrations should have regular dialogue, one with another. I am not persuaded that that needs to be put on a statutory basis, but it needs to be something more than a chore for the various Administrations. It is important that a dialogue be constantly maintained. We are moving into a new era in this country, a post-Brexit one, and it is important that there should be that constant dialogue and that all Administrations within the UK understand that they all have a duty, one to another, to work positively to ensure the prosperity of this country and its citizens. At the moment, that is not happening and this needs to be revised and reviewed. I do not believe this Bill is the proper vehicle for such changes, but once this process is over we are going to need to look at those institutions again carefully. We need to move into that new era.

[Several hon. Members rose—]

European Union (Withdrawal) Bill

David Jones Excerpts

3rd reading: House of Commons & Report stage: Second Day: House of Commons
Wednesday 17th January 2018 Commons Chamber

[Sir William Cash]

The European Scrutiny Committee, of which I have the honour to be Chairman, has been holding inquiries into the fundamental constitutional implications of the Bill, including clause 5. As is now shown on its website, I have had correspondence with the Prime Minister on its behalf since December. The provisions I refer to would empower the courts, for the first time in our Westminster-based legislative history, to disapply Acts of Parliament. This is no theoretical matter. Indeed, we are advised that such disapplication is likely to apply to a whole range of enactments, including those relating to equality, terrorism, data protection and many other matters.

I raised this massive constitutional issue, as I regard it, in Committee on 14 and 21 November, including by reference to the authoritative statements made by the late Lord Chief Justice Bingham in chapter 12 of his book on the rule of law and the sovereignty of Parliament. Let us bear in mind that he is one of the most authoritative judges in recent generations. He says:

“We live in a society dedicated to the rule of law; in which Parliament has power, subject to limited, self-imposed restraints, to legislate as it wishes; in which Parliament may therefore legislate in a way which infringes the rule of law;”—

I repeat, “infringes the rule of law”—

“and in which the judges, consistently with their constitutional duty to administer justice according to the laws and usages of the realm, cannot fail”—

I repeat, “cannot fail”—

“to give effect to such legislation if it is clearly and unambiguously expressed.”

In that book, he publicly criticised the attitude of Baroness Hale, who is now President of the Supreme Court, and Lord Hope of Craighead for suggesting that the courts have constitutional authority as against an Act of Parliament.

Lord Bingham also specifically approved the analysis of what he described as the “magisterial” authority of Professor Goldsworthy, whom he quoted as follows:

“the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it… What is at stake is the location of ultimate decision-making authority… If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe on unwritten rights, they would be claiming that ultimate authority for themselves.”

He went on to state that they—the judges—would then be transferring the rights of Parliament to themselves as judges. He says:

“It would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum.”

That is the basic principle.

Members of this House and the House of Lords, including former Law Lords and members of the Supreme Court, are themselves deeply concerned about—

[Mr David Jones (Clwyd West) (Con)]

Lord Neuberger, who is the former President of the Supreme Court, has also expressed concern about the perceived illegitimacy of judges overturning Acts of Parliament. Is my hon. Friend concerned that the power in clause 5 to disapply Acts of Parliament might result in a worrying politicisation of the judiciary that I would have thought would be unwelcome not only to hon. Members but to the judges themselves?

[Sir William Cash]

I am indeed. I am grateful to my right hon. Friend, who also serves on the European Scrutiny Committee. The provisions I refer to would be express provisions. Therefore, the question of principle is fundamental and will also, no doubt, be taken up in the House of Lords. Furthermore, former Law Lords and members of the Supreme Court have expressed their concerns.

The European Scrutiny Committee’s unanimous view when we met this morning was that Parliament as a whole needs a solution that confirms the principle of parliamentary sovereignty along the lines of declarations of incompatibility under the Human Rights Act 1998, as I indicated in my correspondence with the Prime Minister, whose letter I received on 9 January. To take this forward, may I ask my hon. Friend the Minister to intervene to give me and the House an assurance that when the Bill is in the House of Lords, the Government will constructively engage with the European Scrutiny Committee, with any other Committees of both Houses and with the advice of the Attorney General and the Lord Chancellor to explore and find a proper solution to the constitutional issues I have raised in the national interest?