European Union (Withdrawal) Bill

Debate between David Jones and William Cash

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?

Leaving the EU: Security, Law Enforcement and Criminal Justice

Debate between David Jones and William Cash

Wednesday 18th January 2017 Commons Chamber

[The Minister of State, Department for Exiting the European Union (Mr David Jones)]

May I say what an excellent debate this has been? It has been a debate of very high calibre. Indeed, it has been attended by no fewer than five Chairs of Select Committees. The issue of security, law enforcement and criminal justice is of significant importance in the context of Britain’s withdrawal from the European Union. I am sure that all hon. Members would acknowledge the value of this debate, which is the fourth in a series promised by my right hon. Friend the Secretary of State for Exiting the European Union. These debates have proven to be of real assistance to the Government, not least this one, which, as my hon. Friend the Member for Stone (Sir William Cash) pointed out, is on an issue that impinges directly on all of our citizens.

As the Prime Minister made clear yesterday, a global Britain will wish to continue to co-operate with its European allies on tackling crime and terrorism. That is in the interests of not only the United Kingdom, but the continuing European Union, given the significant strengths that we can bring to the table. One of the 12 objectives that the Prime Minister outlined yesterday for the negotiations ahead is to establish a new relationship that enables the United Kingdom and the European Union to continue practical co-operation to tackle cross-border crime and to keep all our people safe.

My right hon. Friend the Secretary of State reiterated that objective to the House yesterday and made clear, during his appearance before the Select Committee in December, that a future relationship on security, law enforcement and criminal justice co-operation will be one of the Government’s priorities when the negotiations commence.

The UK is leaving the EU, but self-evidently it is not leaving Europe. The reality of cross-border crime and threats to security will remain. In December, as referred to by the hon. and learned Member for Edinburgh South West (Joanna Cherry), the House of Lords EU Home Affairs Sub-Committee report on this subject concluded that there is a shared, strong mutual interest between the United Kingdom and the 27 continuing EU member states to make sure that co-operation on tackling these threats continues. To that end, the UK already has strong bilateral relationships with member states and other countries across the globe that help to address security threats and serious organised crime, as well as facilitate the delivery of effective justice. We intend to continue that close co-operation with our European and global allies on promoting security and justice across Europe after we leave.

[Sir William Cash]

In my speech, and when the Minister came before the European Scrutiny Committee, I referred to the question of the attitude to be adopted in relation to votes in the Council of Ministers. Will he give some indication as to the kind of trend towards being sure we make it clear where we stand on Brexit matters within the framework of the decision-making process in COREPER?

[Mr Jones]

As my hon. Friend pointed out, there is clearly now a change in the staffing of COREPER so far as the UK is concerned. As we move closer towards Brexit, and particularly after we trigger article 50, it is inevitable that that position will develop and change.

There were a number of points made by hon. Members during the debate and in the short time available to me I would like to comment on as many of them as possible. The hon. Member for West Ham (Lyn Brown) asked what guarantees can be given that security and law enforcement will not be compromised as a consequence of our departure from the EU. Of course, we have not even started the process of negotiation. We have not yet even triggered article 50. We are leaving the EU, but, as I previously indicated, co-operation on law enforcement and security with our European and global allies will remain a priority for the Government. The Prime Minister and the Home Secretary have both spoken with several EU partners who have been clear about their wish to maintain strong co-operation with the United Kingdom. That is a good basis for starting the negotiation, but clearly this is very early days.

My right hon. Friend the Member for Mid Sussex (Sir Nicholas Soames) made an excellent speech. He referred approvingly to the Prime Minister’s speech and made it clear that it is important the United Kingdom continues to be a close friend of the continuing EU. That is certainly the spirit in which the Government intend to approach the negotiations.

The hon. and learned Member for Edinburgh South West and a number of other Members raised the issue of data protection in the continuing EU, and the extent to which the continuing EU would wish to, or be able to, share data with the UK. I would point out that on the day of departure, the UK’s data protection arrangements will be in perfect alignment with those of the continuing EU.

Oral Answers to Questions

Debate between David Jones and William Cash

Thursday 1st December 2016 Commons Chamber

[Sir William Cash (Stone) (Con)]

On the question of the port services regulation, does my right hon. Friend accept that it is opposed by the Government, the Opposition, the trade unions and all port employers? The issue is about to be decided by the European Parliament and the Council of Ministers. Does he agree that it should be voted against?

[Mr David Jones]

My hon. Friend is entirely right. The regulation is not designed for the British system. We intend to oppose it, but sadly it will be carried by a qualified majority vote.

Parliamentary Sovereignty and EU Renegotiations

Debate between David Jones and William Cash

Thursday 4th February 2016 Commons Chamber

[Sir William Cash]

Does my right hon. Friend agree that even if the expression “ever closer union” is taken out in respect of the United Kingdom, that will not change one word of any of the existing treaties or laws? We will continue to remain subject to those laws and treaties.

[Mr Jones]

My hon. Friend is entirely right. In fact, the decision acknowledges that the competence conferred by member states on the Union can be modified only by a revision of the treaties following the agreement of all member states. Although the commitment to ever closer union is stated to be symbolic, the reality is that competences have been transferred from the sovereign nations of Europe—Britain included—to the EU and its institutions. The extent of that transfer is very great indeed, as other hon. Members have pointed out.

The institutions of the EU have become ever more powerful. So powerful are they that even the proposal to limit benefits to EU migrants and the new rules on child benefit, set out in the draft decision itself, would, it seems, be vulnerable even if agreed by all Heads of Government and Heads of State. Today’s newspapers report that Members of the European Parliament will have the right to veto all the proposed reforms, including the so-called emergency brake.