European Union (Withdrawal) (No. 5) Bill

Debate between Dominic Grieve and William Cash

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 3rd April 2019 Commons Chamber

[Sir William Cash]

It is not only completely useless, but it is rubbish. I see that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) has just come into the Chamber. Let me ask him, if I may, whether he drafted this Bill. He drafted a great many amendments during the passage of the withdrawal Bill itself back in 2017-18, and I noticed that quite a lot of them were so bad that they had to be junked.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I have to tell my hon. Friend that I did not draft the Bill, but I think that it is quite fit for purpose. I also note that there are some Government amendments that relate to “exit day”, and which exactly echo the points that I made in the House last summer about the folly of putting “exit day” on the face of the European Union (Withdrawal) Act 2018.

[Sir William Cash]

The motion cannot be carried until 12 April at the earliest. That means that the Prime Minister is obliged at some stage to seek an extension, but she is not obliged to do so immediately. Unless she does so on 12 April and it is agreed before 11 pm that day, the United Kingdom is out. It will be “Leave, leave, leave, leave.”

Clause 1(6) and (7) are I suppose intended to deal with a situation where the European Council meets on 10 April and seems to volunteer to offer an extension to a certain date. I mentioned earlier—perhaps in a point of order—the role of the European Council in all this. The reality is that the procedure being followed puts the ball back in the European Council’s court. It is possible that nobody will be sensible enough to veto this extension, although they have the power to do so and I trust that one or other of them, or perhaps several, will.

My objection to this arrangement is contained in the European Scrutiny Committee report we put forward last March—a whole year and one month ago. We raised grave concern because the European Council, which is driving a lot of the negotiations, set out the terms of reference and the guidelines and the sequencing. The fact is that the Government gave in on all that and supplicated and went along on bended knee to the European Council and asked, “How much can you possibly let us get away with? What can we be allowed to do that you will agree with?” There were also all the monstrous negotiations conducted by Olly Robbins, who appeared in front of my Committee, and Tim Barrow and others. The reality is that submitting ourselves under this Bill to the decision-making processes and the cosh of the European Council is not only completely humiliating to this country, but has put us in an impossible situation under the withdrawal agreement.

Article 4 of the agreement—which is directly relevant to everything we are discussing here because it is about the governance of the European Union in relation to the UK on leaving—stipulates in terms of the UK that we will be subjugated to the decision making of the Council of Ministers.

I hope somebody on the Opposition Front Bench will take this on board. The Council of Ministers will be making laws for probably up to four years, when this House, as I said the other day, will be politically castrated in relation to the European treaties, which will have entire competence over us and all laws. We will not be able to pass a single law in contravention of them, and our courts will not be able to defend our voters—our taxpayers—from any of the decisions taken while we are put at the mercy of our competitors during the transitional period, however long that may be.

I have already made the point that the transitional period could cost £90 billion; I do not know the sum, because we do not know what date will be settled on yet. What I do know is that this House will be subjugated—completely neutralised—in the transitional period. I see that the Minister is shaking his head. I invite him to appear in front of my Select Committee and answer on that; I would like to cross-examine him on the question of who will be governing this country during that period, because it certainly will not be this Parliament, I can tell him that.

UK’s Withdrawal from the European Union

Debate between Dominic Grieve and William Cash

Wednesday 13th March 2019 Commons Chamber

[Mr Dominic Grieve (Beaconsfield) (Con)]

I cannot agree with my right hon. Friend the Member for Wokingham (John Redwood) that a no-deal Brexit is somehow eminently liveable with; it plainly is not. From looking at my own constituency, talking to the pharmaceutical companies that are there and looking at the costs already incurred by them to try to face up to the prospect of no deal and the risks they run if no deal goes ahead, it seems plain to me that no deal would be very damaging to this country indeed: damaging in the short term because of the chaos that will accompany it, and damaging in the medium to long term because I believe we will be seriously economically disadvantaged by it.

I find it genuinely very troubling that as we come closer to the crunch there seem to be more and more people who may previously have advocated a deal but, not seeing that there is a deal around, suddenly decide that no deal is the option because they cannot get what they want or the form of deal they might desire. It is an extraordinary form of frenzy: they smash up the china first, and when they are not satisfied with the china they have smashed, they decide to smash some more. That is what we are facing, and it is my duty to do everything I possibly can to prevent it, and I will continue to do that for as long as the opportunities for doing it present themselves.

[Sir William Cash (Stone) (Con)]

My right hon. and learned Friend talks about smashing up the law; does he not accept that section 1 of the European Union (Withdrawal) Act 2018 makes it abundantly and expressly clear that we will repeal the European Communities Act 1972 on exit day?

[Mr Grieve]

It may do, but it lies within our capacity to change it, and we will have to change it; indeed, it is inherent that it will be changed in the next fortnight, and I will move on to that in a moment.

I do not want to dwell on the risks of no deal in practice because I do not wish to repeat what others have said perfectly eloquently. So then we turn to this process, and I simply point out that it is very unfortunate that instead of what I understood yesterday would be a clear opportunity for this House to express itself against the principle of no deal and make clear that we do not want it before moving on tomorrow to discuss what we might do to prevent it, which is a real issue, the Government have tabled a motion that gives the distinct impression that, like children, we will be offered the same pudding, if not eaten at lunchtime, at tea time, supper time and now for breakfast, when it is perfectly clear that this House has rejected this pudding in its totality.

As a consequence, something that might bring us together in reasoned debate has started to be undermined by a suspicion that the Government are interested only in forcing a binary choice between no deal and accepting their agreement. Listening to the Secretary of State at the Dispatch Box earlier, I began to realise that perhaps that was not the case, but then why was the motion ever tabled in this fashion? I cannot understand that. In fact, the amendment tabled by my right hon. Friend the Member for Meriden (Dame Caroline Spelman) was correct in trying to identify and deal with that mischief.

The Government have a point, however. I agreed with a lot of what the hon. Member for Birmingham, Yardley (Jess Phillips) said, and there is an issue here. This House has lived under the protection of our party system for a long time. I am now beginning to see a distinction on my Benches, and actually on the other Benches, between those of us who have in a sense exposed ourselves and as a consequence get a huge amount of threats, flak and invective, and those of my colleagues—I do not include the Prime Minister in this, because she has many a burden—who are hiding behind the party system to avoid making the difficult choices. We cannot go on doing this. The party system might restore itself—I rather hope that it does—but as things stand at the moment, it is blown to pieces.

We have to make the decisions. Are we going to find a motion to accept the Prime Minister’s deal being offered up again? I do not want that, because I think that it is a poor deal, despite her best efforts. Are we going to find some other deal? Or are we going to revoke? Revocation is not something that I would wish to do without going back to the public, because in the light of the referendum, that would be a rather draconian and dangerous step. However, we will have to address that question because, otherwise, we will go round in circles and the Minister is right to say that we will eventually run out of time. We will simply have pushed back the cliff edge. We will have to resolve this, but at the moment, the Government are not helping by tabling motions of this tendentious character. I really urge my colleagues on the Front Bench to face up to their responsibility and to ensure, first, that we get some clarity from them tonight, and secondly, that we can take this debate forward.

European Union (Withdrawal) Act 2018

Debate between Dominic Grieve and William Cash

Tuesday 29th January 2019 Commons Chamber

[Mr Dominic Grieve (Beaconsfield) (Con)]

I cannot deny that I have found the process of Brexit one of the most wearisome and unpleasant periods of my time in this House, but the cloud has a little bit of a silver lining. I find this afternoon that an amendment I first proposed last summer, which was vehemently denounced by some of my right hon. and hon. Friends as being about to break the party apart, and that I brought back just before Christmas, and passed with the help of many right hon. and hon. Members, now appears to have something to commend it to the very people who denounced it then. I note with pleasure that amendment (n) appears to command some support among Conservative Members, and from my right hon. Friend the Prime Minister, but it could not even have been brought up for consideration if the system that had been devised for this House, simply to have motions in neutral terms be unamendable, had been followed. I derive some slight satisfaction from that.

I now tempt the House to accept another amendment, amendment (g), and I will briefly explain why. We are mired in complete paralysis. The deal that my right hon. Friend the Prime Minister brought back, which I suspect is probably the best deal available, does not commend itself to many of my right hon. and hon. Friends. If they voted to leave, it does not meet their dreams at all. What about somebody like myself? When I look at the deal objectively, from the point of view of an ex-remainer, I simply cannot understand how we are going to be better off leaving on such terms than remaining in the European Union.

[Sir William Cash]

Will my right hon. and learned Friend give way?

[Mr Grieve]

No, I am going to make some progress, if I may.

In those circumstances, we have to find a way forward. Throughout the times that I have tabled amendments for this House to consider, I have tried to avoid objectives and look at process. Frankly, we could do with more days of debate of this sort unless or until we reach agreement. Of course, if we do reach agreement, with this amendment we can have another business of the House motion and we will just drop the remaining sitting days. It is rather sensible to set aside six days between now and the end of March when this House can debate, free of the interference of government, which I have to say I am afraid has sought consistently to restrict debate into an absolute straitjacket of what it wanted to hear and nothing else. If we have those days, it will help us, just as we are actually starting to tease out this afternoon, to make a little bit of progress towards compromise.

Of course my views are well known about the desirability of a further referendum, and I will come back to them right at the end, but I am perfectly aware that many Members in this House do not agree with that, even if they also share my regret at what we are doing in leaving the EU. But that in no way diminishes for me the value of these days, and I agree entirely with the Father of the House and with my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) that the idea that this is some constitutional abomination simply does not bear scrutiny; we are in control of our Standing Orders and changing them in this way to get the debates we need is entirely in keeping with the traditions of this House and the fact that the Government, in this area, simply do not enjoy the majority that some Governments have normally used to suppress it.

[Sir William Cash]

Somebody who refers to national suicide, as my right hon. and learned Friend did the other day, is now moving towards a proposition that involves constitutional homicide, but let me put it another way. Does he agree that he voted for the European Union (Withdrawal) Act 2018, which states unequivocally that the European Communities Act 1972 will be expressly repealed? Therefore, is what he is now saying going to contradict that, because he does not want the 1972 Act to be expressly repealed—yes or no?

[Mr Grieve]

I say to my hon. Friend that he is familiar enough with the constitutions of this country and this House to know that this House can propose, debate, pass and revoke laws—we do it quite often sometimes, including laws that have never actually been implemented. So this House can do what it thinks is right at any given moment, and that is the flexibility we need. I tabled my amendment in the spirit of trying to reach some sort of understanding of where the majority might lie to bring this unhappy episode to a conclusion. I have also made it clear that in doing that one has to keep in mind and respect the decision of the earlier referendum, but that does not mean—I will come back to this in a moment as well—that one simply says that one is going to drag the country out on terms that nobody very much seems to support and towards a future that on the face of it looks pretty bad. To do that would be an abdication of our responsibility.

My right hon. Friend the Prime Minister has also said that this House should say what it wants and what it does not want. May I say to her that knowing what one does not want can be quite a good starting place to understanding where compromise is reached over what one is prepared to accept? There are amendments down this evening on no deal that I shall support, because it is quite clear to me that this House utterly rejects no deal. Therefore, I will vote for those as well and I ask the House to vote for my amendment, which is neutral in objective but which will give us the opportunity we need to continue developing the debate we have to have if we are to resolve this matter sensibly.

There is then amendment (n), which I have to say is quite tempting in some ways. Our party has deep divisions over Brexit, and we know the pleasure we get when, because of the respect and affection we have for each other, we can all vote together. We did it when we supported my right hon. Friend the Prime Minister on the motion of confidence. For that reason, it is very tempting to be told that we should just vote for amendment (n) and send some message that we might just be close to resolving our disagreements with the EU, and doing it collectively. I have some slight anxiety about this, however.

The backstop is indeed a rather humiliating thing, which is why Democratic Unionist party Members do not like it. As a Unionist, I can understand that, to the bottom of my heart, because it highlights the fact that when we leave the EU, the EU is going to continue to have a hold constitutionally over some of the things that we do. But the truth is that the backstop is just the outward sign of a much more profound truth: that ever since we signed up to the Good Friday agreement to resolve, on a permanent basis, an outstanding constitutional issue of identity on the island of Ireland, we have bound ourselves to keep an open border. The unpleasant truth is that that is incompatible with the aim of some right hon. and hon. Friends, who want to take us to a future in which we diverge on tariffs and regulation, and which inevitably therefore leads to a hard border having to be introduced.

I fear that our being asked to support amendment (n) this evening is a piece of displacement activity—something in which I am afraid the House has specialised in the past two and a half years, and which one often sees young children doing when they are asked to face up to something they do not like. That seems to me to be what the amendment is about because, first, it is quite clear that the EU will not negotiate on it—although I do accept that if you do not ask, you do not get—and secondly, even if we were to get the backstop removed, the trouble is that what some of my right hon. and hon. Friends are asking for is inevitably going to bring this conflict into the open once we are gone. If I may gently say so to them, this is one of the issues that we need to debate in those six days that I hope I may have set aside for the House. There is a lack of trust about future intention that makes 29 March completely irrelevant, because the truth is that the disputes about the nature of our state and how we relate to those around us will resume immediately afterwards.

For those reasons, I am afraid I cannot support amendment (n), but I am delighted to have provided—if only by my previous amendment, at least—an opportunity to this House to start having a dialogue. I very much hope we can pursue that.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and William Cash

Tuesday 12th June 2018 Commons Chamber

[Mr Grieve]

I am grateful to my right hon. and learned Friend. I think that we will hear more about that as the debate unfolds.

[Sir William Cash]

Will the hon. Gentleman give way?

[Mr Grieve]

No. I am sorry.

Let me end by saying this. The idea that it is wrong, in a crisis, for Parliament to direct the Government what to do is plainly fallacious. It cannot be right. We are entitled to do that. Of course, if the Government do not want to do what we direct them to do, that is another matter.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and William Cash

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

[Sir William Cash]

In his discussions with Mr Barnier, did my right hon. and learned Friend gain any impression that the European Commission, and indeed Mr Barnier himself, had taken on board the fact that in relation to the legal order to which my right hon. and learned Friend refers—the European Union and its institutions—article 50 actually represented a radical change by giving people the right to withdraw if they wished? That changed the nature of the European Union from the day on which article 50 was passed as part of the Lisbon treaty.

[Mr Grieve]

I am not sure I entirely agree. I do not think that Mr Barnier has ever suggested that the United Kingdom cannot withdraw under article 50—we plainly can. Indeed, new clause 6 deals with the question of whether article 50 is revocable. I think that it almost certainly is, so it is a pertinent question for the House to ask, although it is not an easy one for the Government to answer, in fairness, as ultimately it could probably be determined only by the European Court of Justice.

I do not think that the fact that we can revoke article 50, or that article 50 has kicked in, alters the EU legal order. The EU intends to continue with the United Kingdom outside. On the question of our future relations with the European Union, we will be outsiders, and some things that we are asking for, including a special and deep relationship, are currently—and, I fear, for ever—incompatible with the nature of that legal order. We either have to be in or we will get something that is very much less than what we have set out as our request. I therefore say to my hon. Friends that these amendments are perfectly pertinent, because they raise questions that will be asked over and over again, and with greater urgency, as each week passes in the course of this dramatic year.

I will end by saying this to my hon. Friend the Member for Stone (Sir William Cash). I listened very carefully to what he had to say. He is an individual of complete and clear integrity when it comes to his own views about how the United Kingdom’s constitution should work, which is one of the reasons why he has been so dramatically opposed to our EU membership—a matter on which we differ—but here he was, highlighting that in the process of taking ourselves out of the European Union, we are smashing up our domestic constitution big time—“O Brexit! What crimes are committed in your name?” It is imperative that we in this House manage the process so that we prevent the sort of mischief that he has identified, but I am afraid that, in part, it is inherent in the nature of the venture that we have taken on.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and William Cash

Committee: 7th sitting: House of Commons
Wednesday 13th December 2017 Commons Chamber

[Sir William Cash]

I am extremely intrigued by the line that my right hon. and learned Friend has taken, with which I largely agree in relation not to the substance, but to the deficiencies he now seems to have accepted could, in some shape or other, be tidied up, as he put it, on Report if we were to get to that unfortunate situation. I simply ask him: is he able to elucidate how his amendment would actually work in practice?

[Mr Grieve]

I have been pleading with the Government throughout the past four weeks, pointing out to them that this is a really important amendment, and asking them please to respond to it. I have asked them what alternative they might have that could persuade me that they had a working proposal that should command the approval of the House and my own approval. I have been doing that repeatedly, and I was striving to achieve those things last week, but the blunt reality is—I am sorry to have to say this to the Committee—that I have been left in the lurch as a Back Bencher trying to improve this legislation, because silence has fallen. There has simply not been a credible explanation. The last explanation was, “Here is your written ministerial statement. That ought to be enough for you. In loyalty, you should now support the Government.” However, that does not answer the question.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and William Cash

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Mr Grieve]

I place great respect on the fact that, for all the faults I can sometimes identify, when the European Union was established its founding fathers wished it to be based on principles not only of the rule of law, but of a vision of human society of which I have no difficulty approving.

[Sir William Cash]

rose—

[Mr Grieve]

I will just make a little progress.

I do not have any problem with that vision at all. It worries me that, in the course of this debate on Brexit and our departure from the European Union, in this massive upheaval of venom about the EU that I have experienced personally in the past week, which seems to have no relation to reality at all and troubles me very much, we seem to be at risk of losing sight of these aspects of real progress within our society as a result of our EU membership. They are overlooked.

[Sir William Cash]

I have listened to my right hon. and learned Friend with great care and interest. Will he explain why the matters to which he and the right hon. Member for Tottenham (Mr Lammy) have just referred could not be enacted? In fact, they often are enacted; I referred to the Protection of Children Act 1978, the International Development (Gender Equality) Act 2014 and so forth. Does he not understand that it is terribly important to remember that implicit in the charter—as a distinguished lawyer, he knows this—is the power of the European Court to disapply Supreme Court enactments? The Factortame case was a good example of that in respect of the Merchant Shipping Act 1988.

[Mr Grieve]

I thought Factortame would come along at some point in this debate. My hon. Friend is of course right about that. I know that he has spent most of his career in this House agonising over the issue of the loss or diminution of parliamentary sovereignty. That is not a matter to be neglected, and if he will wait just a moment I shall come to that point.

As I said, by raising the points he has through tabling new clause 16, the hon. Member for Nottingham East has done the right thing, because we need to focus on what is going to happen after we have left the EU. Of course my hon. Friend the Member for Stone (Sir William Cash) is correct: the laws that we have enacted, as at the date of exit, as a consequence of our EU membership and the requirement for us to adhere to the charter, will remain in place, but it is interesting that they will thereafter be wholly unprotected. For example, they will not even enjoy the special protection that we crafted in the Human Rights Act for other areas deemed to be of importance.

One solution may be that, in due course, we ought to think carefully about whether there are other categories of rights additional to the European convention on human rights—heaven knows we have been here before—that ought to enjoy the sort of protection that the Human Rights Act affords other rights. That might well be the way forward. I agree with my hon. Friend that it is slightly strange that, in leaving the EU for national sovereignty reasons, we should then say that we will continue to entrench certain categories of rights protected in the charter and give them a status even higher than, for example, prohibiting torture under the ECHR. That might strike people as rather odd. On that basis, I am forced to conclude that, if we are leaving the EU, as we intend to do, the sort of entrenchment that has previously existed is not sustainable. We will have to come back to this House to consider how we move forward, but, in saying that, I think that this is a very big issue indeed.

It worries me that, when we leave in March 2019, there will be a hiatus. There will be a gap where areas of law that matter to people are not protected in any way at all. It is no surprise, therefore, that non-governmental organisations have been bombarding MPs with their anxiety. I think that that anxiety is misplaced, because I cannot believe that any Member on the Treasury Front Bench intends to diminish existing rights. However, we are in danger from two things. One is sclerosis—that the rights development will cease. Secondly, because those rights do not enjoy any form of special status—many, not necessarily all, should certainly do so—there will be occasions when we nibble away at them and then discover that they have been lost. For that reason, it is a really urgent issue for consideration by this House, preferably before or shortly after we leave.

--- Later in debate ---

[Mr Grieve]

My right hon. and learned Friend makes a very good point. He highlights the difficulty faced by all Back Benchers, particularly Government Back Benchers, in presenting amendments—namely, the extent to which they should accept assurances from Front Benchers. That largely depends on how detailed the assurance is—whether it is woolly and vague or has some specificity to it. My judgment on whether I might press amendment 10 to the vote will depend on how specific Front Benchers can be in providing an assurance that they recognise that, even if there may be areas that remain to be debated, there is a core issue that must be addressed about the ability to bring a right of action in domestic law based on a failure to comply with a general principle of EU law when it concerns the operation of retained EU law.

Furthermore, because retained EU law has supremacy over domestic law, it must be possible that there might be instances in which our domestic law would have to be altered. The Government cannot then argue that that is an extraordinary thing to do, because they have themselves drafted this Bill in a way that allows for the possibility of UK domestic law being quashed. That will, I hope, be for a temporary period. Nevertheless, I am unable to understand how, during that temporary period, we can end up with a situation where the Government are perfectly happy to allow for the supremacy of EU law but remove the very principles that moderate it, ensure that it cannot be abused, and, in those areas that were within EU competence, provide a framework under which the Government are undertaking to operate unless or until they repeal the bits of retained EU legislation that they are bringing into our law.

[Sir William Cash]

rose—

[Mr Grieve]

Before my hon. Friend intervenes, let me say this to him. The big argument against EU law is that it was either created by “this foreign body” or it was inflicted on us and we had to enact it in order to comply with our international legal obligations. In those circumstances, it is a bit odd if we start arguing that, in view of where it comes from, the possibility of, for example, knocking it on the head because it does not comply with its own general principles should be entirely abandoned.

[Sir William Cash]

I hope that my right hon. and learned Friend will not go down the rabbit hole suggested by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), which is that we should accept this incongruous proposal when in fact it involves a fundamental principle of constitutional supremacy. I am sure that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) understands that. He is identifying a number of questions, and I entirely encourage him to continue to do so. I suggest, however, that it would be very unwise indeed to follow the advice of my right hon. and learned Friend the Member for Rushcliffe as regards the Government accepting these amendments for the time being.

[Mr Grieve]

I understand my hon. Friend’s point. However, the purpose of this Bill, as I understand it, is to put together a package that enables a smooth transition from our presence within the European Union to our presence outside of it. That, of necessity, requires adjustments to the purity of his thinking about parliamentary sovereignty, which the Government have been required to acknowledge in the way that they have drafted this Bill. In those circumstances, it does not seem to be pushing the boundaries very much further, nor should it be seen as some treasonable article, for us to consider whether the general principles of EU law ought not to be capable of being invoked when they are probably the very thing that has, over the years, prevented the EU from turning into an even worse tyranny, as my hon. Friend would see it. [Interruption.] Well, I have to say, having listened to him, that that is usually the impression that has come across. He sees it as tyrannical because it is not moderated by the doctrine of our parliamentary sovereignty. I simply make that point; I do not wish to labour it.

--- Later in debate ---

[Sir William Cash]

I agree with my hon. Friend’s general proposition, to which I would add that it is up to us to make our own laws. We can listen to the arguments, we can make the amendments and we can recognise human rights, as well as all the other things, as I did with the International Development (Gender Equality) Act 2014. I entirely agree with his sentiment for that reason.

Lord Bingham went on to say:

“We live in a society dedicated to the rule of law”—

I note the reference to that by my right hon. and learned Friend the Member for Beaconsfield—

“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; and in which the judges, consistently with their constitutional duty to administer justice according to the laws and usages of the realm, cannot fail to give effect to such legislation if it is clearly and unambiguously expressed.”

I ought to add that, in fact, Lady Hale revisited that territory, before she was made President of the Supreme Court, in a speech in Kuala Lumpur on 9 November 2016.

The Conservative party opposed Lisbon, which conferred treaty status on the charter. I say this to my right hon. and learned Friend the Member for Beaconsfield with all respect, because we get on pretty well and we have had several chats over the past few days, but I trust he will recall his opposition to the Lisbon treaty and, therefore, to the charter when he was shadow Attorney General—he followed me in that post. More specifically, I hope he will recall the evidence he gave to the European Union Committee of the House of Lords, which was cited in its report published on 9 May 2016—

[Mr Grieve]

rose—

[Sir William Cash]

I know my right hon. and learned friend knows what I am about to say, but may I finish the quotation? He said that

“the European Court of Human Rights is a very benign institution, whereas I happen to think that the European Court of Justice in Luxembourg has predatory qualities to it that could be very inimical to some of our national practices”.

I would suggest that those are in respect of the question of disapplication of Acts of Parliament.

[Mr Grieve]

May I gently say to my hon. Friend that although this is fascinating, we are actually talking about retained EU law which will not be subject to the jurisdiction of the Court of Justice of the European Union? I do have criticisms of the CJEU and the way it has operated at times, and I have had the pleasure, or misfortune, of appearing before it. Its teleological principles and its purposive interpretation of law have often been challenging in our national setting, although it is not a pariah court and by international standards it is a pretty good tribunal. So I stand by the points I made on that occasion, but they in no way diminish or undermine anything that I have said here this afternoon.

[Sir William Cash]

I simply add that I understand this with reference to the European Court in its existing situation, because not until we leave the EU are we able to avoid the jurisdiction of the European Court, so that applies at least for the next two years and probably for the two after that. God knows what they will do in the meantime. My European Scrutiny Committee has been holding meetings already on the European laws that have been proposed since the general election, but the problem is—

--- Later in debate ---

[Mr Grieve]

As I said, the drafting of amendments is quite a complex matter, and I am the first to accept that an amendment may not meet the exact needs of the Government, even if the Government were to seek to accept it. None the less, the position is very simple and I can only repeat it: amendment 10 will be put to the vote unless the Government give some satisfactory assurances that they will respond to it.

[Sir William Cash]

Let me conclude. I do hope that my right hon. and learned Friend will not do what he has just suggested. I say that because those measures are defective not only in the way that he has described, but in respect of paragraph 5 of schedule 1. Amendment 10 refers to paragraphs 1 to 3, but there are also difficulties in relation to paragraph 5, which I will not go into now because I have made all my remarks.

I sincerely urge my right hon. and learned Friend to listen to the arguments and to accept the fact that, for very good reasons, it would not be appropriate to press these amendments to a vote.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and William Cash

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

[Mr Grieve]

It is a pleasure again to be able to participate in this debate.

The new clause in the name of the Leader of the Opposition raises a really important issue about the way in which the Government have approached the whole question of retained EU law. To be clear at the outset, and it is worth repeating, the Government’s aim—to bring EU law into our own law, retain it there to ensure continuity and then, over time, to take such steps as this Parliament wishes to take to replace it or change it—makes absolute sense. But as we discussed yesterday, the difficulty that arises is that the origins of EU law mean that it has come into the law of this country in ways that are totally different from our usual process of primary and secondary legislation. [Interruption.] Does my hon. Friend the Member for Stone (Sir William Cash) wish me to give way? I thought that he said something from a sedentary position.

[Sir William Cash]

Not yet.

[Richard Drax (South Dorset) (Con)]

I said, “That’s why we are leaving”, in response to my right hon. and learned Friend’s comments.

--- Later in debate ---

[Mr Grieve]

I do. I entirely accept that it is within the wit and ability of this House in future to replicate, if we so desire, many areas of law that currently come from the EU, but at the moment we do not have time to do that. We are taking in law that really matters to people out in the street. I suspect that the vast majority will have no idea where this law originates from; they will just say, “Actually, my employment rights are rather important.”

[Sir William Cash]

Will my right hon. and learned Friend give way?

[Mr Grieve]

No, I will carry on for the moment and then give way.

People will value that law, and yet we are bringing it in and giving it a status that I regard as very unsatisfactory. There are a number of ways in which that could be addressed, including new clause 2, which has been tabled by the Opposition. I have tabled new clause 55, which I will briefly explain. It looks at the nature of retained EU law, establishes a general presumption that retained EU law may be amended only by primary legislation or subordinate legislation made under the Bill that we are enacting, and provides a framework for the Government to stipulate specific provisions of retained EU law that are merely technical, and therefore appropriate to be amended by subordinate legislation. I do not have any objection to that happening, but the rest would have to be dealt with by primary legislation. The new clause would provide much greater legal certainty about powers for future amendment of retained EU laws, and it would give the Government flexibility to amend technical provisions quite freely.

--- Later in debate ---

[Mr Grieve]

Yes, indeed: the Conservative party did precisely that. There is a proud record in the Conservative party—as, indeed, there is in the Opposition—of contribution to that process. I make it quite clear that I do not put the smallest imputation that those on the Treasury Bench, or on any of my colleagues in government, want to reduce those protections one bit.

[Sir William Cash]

I want to put on the record that I have a lot of sympathy with the idea of an enhanced sifting scrutiny process, as my right hon. and learned Friend knows. I am glad to note that he puts an emphasis, which I am sure we all agree with, on primary legislation. The only question that I want to raise with him about his earlier remarks concerns his enthusiasm for the manner in which the legislation was made in the first place. I make the point yet again that it was done, to an extraordinary extent, behind closed doors and by a process of consensus that cannot possibly be justified.

[Mr Grieve]

I understand where my hon. Friend comes from, in view of his long-held concerns about these issues. But I ask him to consider the fact that one consequence of our EU membership—I have to accept this—is that in some areas in which law might have developed domestically, it has not done so in the 45 years of our membership, because we did it in common with our European partners. That is just an historical fact. Because it is an historical fact, we have to grapple with how we make sure that we do not throw the baby out with the bathwater.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and William Cash

Committee: 1st sitting: House of Commons
Tuesday 14th November 2017 Commons Chamber

[Sir William Cash]

I had actually spotted that, Dame Rosie, and I am most grateful to you for confirming that I am in order.

Let me now touch on some of the issues that arise from this continuous emphasis on the virtues of the European Court of Justice. There is the constitutional principle, which I have already explained, and there is the case law, which I have also already explained. But it goes further than that. The very great Lord Justice Bingham, in chapter 12 of his book “The Rule of Law”, describes the relationship between the courts and Parliament. He comes down unequivocally in favour of Parliament. He makes it clear that when Parliament passes a Bill such as the one that we are to enact, it will override all the laws in the European system that have shackled us so far, and also all the Court judgments, save only that we have agreed, by virtue of the retained law, to transpose some aspects of the process to which we have become used, and which we can decide what to do with at a future date.

[Mr Grieve]

Will my hon. Friend give way?

[Sir William Cash]

I certainly will; I should be only too delighted. I have been waiting to hear from my right hon. and learned Friend, whom I happen to know very well, and for whom I have great respect. I shall listen to him with interest.

[Mr Grieve]

I do not think my hon. Friend can have it both ways. A moment ago, he was talking about direct effect. There is no doubt that if we leave the European Union, direct effect will cease on the day we go; but, as I am sure he knows, we are signed up to about 800 treaties with arbitral mechanisms that can lead to judgments affecting the United Kingdom, which we then undertake to implement, sometimes by changing our own laws. I do not quite understand why my hon. Friend has such an obsession with the Court of Justice of the European Union if its direct effect will be removed, although we will have to be subject to it during the transitional period as we are leaving.

[Sir William Cash]

I do not think that matter has been entirely settled, by any means. The hon. and learned Member for Edinburgh South West (Joanna Cherry) earlier referred to a lunch she was at, where it appears that she was told we were going to be subject to the European Court of Justice, and my right hon. and learned Friend has made exactly the same point.

I have to say that there are serious questions about the nature of the European Court. The problem is that the European Court is essentially not an impartial court at all. It has never discharged the function impartially, and from the early 1960s it developed a range of principles, such as those of the uniform application and effectiveness of EU law, that it then expanded of its own volition into the general principles of the supremacy and direct effect of EU law over national law. These judge-made principles had no basis in the EU treaties until the Lisbon treaty, which my right hon. and learned Friend, who was then Attorney General, opposed. The fact is that until Lisbon—

Parliamentary Scrutiny of Leaving the EU

Debate between Dominic Grieve and William Cash

Wednesday 12th October 2016 Commons Chamber

[Mr Grieve]

rose—

[Sir William Cash]

I am not giving way for the moment. I am saying that we cannot both be in the single market and repeal the 1972 Act, whose laws are part of the jurisdiction of the European Court of Justice. I will give way now to the former Attorney-General.

[Mr Grieve]

My hon. Friend will doubtless agree with me that over the next three to four years we will get out of one treaty and replace it with at least another, if not a multiplicity of treaties—part of the 13,000 by which we are bound internationally at present. He might also agree that Norway provides an example of a country that participates in the single market without being a member of the European Union. Does that not completely destroy the argument that my hon. Friend has just put forward?

[Sir William Cash]

It does not, because I said implicitly that we would not be able to go into the European economic area for that very reason. The British people have spoken in the referendum, and everyone in the Chamber says that they respect the views of the British people, yet at the same time we hear these weasel words that somehow imply that it is possible to leave the European Union, repeal the European Communities Act 1972 and still remain within the jurisdiction of the European Court of Justice. That is just nonsense—political and legal nonsense.

[Nicky Morgan]

rose—

[Mr Grieve]

rose—

[Sir William Cash]

I have given way enough for now, and I want to continue with what I have to say. I shall come back to this issue on another occasion, but my position is abundantly clear and correct: we cannot both be in the single market and repeal the 1972 Act.

What is the meaning of the answer to the question? It meant that, by the consent of the voters given by the sovereignty of this House, this Parliament agreed to give to the British people the right to transfer from Members of Parliament in their place today and beforehand to them the decision on whether we remained or left. That decision was taken by a majority of something of the order of 6:1. In my judgment, it is unseemly if not absurd for the same Members of Parliament to say, “Oh, well, we did not like the outcome of the result” and then to say “We are now going to mitigate or try to overturn it”.

English Votes for English Laws

Debate between Dominic Grieve and William Cash

Wednesday 15th July 2015 Commons Chamber

[Sir William Cash]

I shall not cite the obvious George Orwell quote that comes to mind about all animals being equal, because that might be thought to be rather disrespectful. However, the bottom line is that the hon. Gentleman is just not right. When we create different functions, voters expect the Member of Parliament who represents them to be accountable for those functions. This is not a great mystery or great science. It is a simple question of where the lines are drawn. They were drawn by the United Kingdom Parliament and that is where the matter stands.

I want to remind Members about the Scotland Act 1998, although not many who were in Parliament at the time are still here—

[Mr Grieve]

I was here.

[Sir William Cash]

My right hon. and learned Friend was indeed here.

I tabled an amendment on the West Lothian question during the passage of the Bill in 1998, but it was pushed off the Order Paper. The bottom line is that it was disregarded by the Labour Government and, I have to say, by my own party. It simply proposed an amendment to the Standing Orders to deal with this obvious problem. The problem existed in 1998, and it is still here now. We are still talking about it and running round in circles without recognising that this is a question of fairness. I am astonished by this. As I have said, I very much enjoy the company of the Scottish nationalists in this Chamber, and the hon. Member for Perth and North Perthshire makes some very entertaining and theatrical speeches, but he talks about federalism one minute and about independence the next. He mixes the two up. We know that he wants independence and we give him credit for that, but he is not going to get it.

--- Later in debate ---

[Sir William Cash]

I have already referred to the fact that I tried to resolve the West Lothian question by proposing amendments to Standing Orders. In 1998, I also proposed that the whole matter should be referred to a referendum in the whole of the United Kingdom, because we were all affected by it. Half the Conservative Members walked past the Whips to support me on that, but the Government would not of course accept it.

[Mr Grieve]

My hon. Friend makes a very important point. I will come back to it, but I will now move on because I do not want to take up too much time.

To move from the general point to the particular one, I accept that what we are debating strikes me as imperfect, but I am afraid I happen to think that a lot of things we have done recently in respect of devolution are imperfect as well. I emphasise that I differ from my party on the vow, not because I think it is wrong to give more devolution to Scotland—there is a powerful argument for saying that Scotland should have more devolution than we are giving it—but because the process we have embarked on appears to me to be essentially incoherent. It is like a car driving along a road and lurching one way and then the other in a series of spins. I do not think that that is a productive way to operate in the long term, but we are where we are.

The proposed Standing Orders are essentially very modest—they really are. I am very pleased that my right hon. Friend the Leader of the House listened about extending the period of debate and that the Procedure Committee will have an opportunity to look at them, but they are modest. They constitute about as small a shield to English susceptibilities as it is possible to devise. In my view, they will not in any significant way diminish the role of MPs as a collective group in this House.

Debate on the Address

Debate between Dominic Grieve and William Cash

Wednesday 27th May 2015 Commons Chamber

[Mr Dominic Grieve (Beaconsfield) (Con)]

It is a pleasure to follow the hon. Member for Liverpool, Riverside (Mrs Ellman), and also to follow the introduction to this debate by my right hon. Friend the Member for Chelmsford (Mr Burns) and my hon. Friend the Member for South East Cornwall (Mrs Murray).

I approach this debate with some slight misgivings—I realised that the last time I participated in a debate on the Gracious Speech from the Back Benches was my maiden speech in 1997, and worse still, the themes of that maiden speech were devolution for Scotland, the future of the Union of the United Kingdom, and human rights. Despite my best endeavours, I seem to be unable to escape any of them this evening. However, some issues which arise were not present then. The economic crisis that has beset the western world and this country particularly in the past few years was not present when I made that maiden speech in 1997. The state of the world as it existed then was nothing like as fragile and dangerous as the world seems to be today. We face dramatic challenges, to which I shall return briefly at the end of my remarks.

I greatly welcome the continuation of the Government’s economic policy, as laid out in the Gracious Speech. I have no doubt that the reason why my right hon. Friend the Prime Minister was returned and the Conservative party was elected to office was the public’s appreciation of the difficult decisions that had been made in putting the economic recovery of this country on a reasonable footing. In saying that, I am mindful of the fact that there will be some pretty dramatic challenges ahead. Having served in government and having watched the difficulties, for example, of reducing the budget of the small Department over which I presided for four years and the Crown Prosecution Service being reduced by one third, I recognise that there will be some complex issues of prioritisation as we take matters forward.

In that context, I welcome the remarks of the Lord Chancellor who, I understand, when he first went to address the staff at the Ministry of Justice, pointed out his awareness of the importance of access to justice and of maintaining an adequate justice system as one of the key priorities of Government. I entirely endorse that.

I welcome the fact that we are to have a referendum on European Union membership. In my view, this is an area where there is a substantial democratic deficit that has beset our politics for far too long. It is fairly well known that nobody has yet succeeded in persuading me of good arguments why we should leave the European Union, but I recognise from my time as Attorney General that there are many aspects of the EU which are seriously dysfunctional. If my right hon. Friend can, in the conduct of his negotiations, succeed in improving the way in which the EU functions not just for ourselves, but for the other member states, he will have performed a signal public service, and I believe he will then be in a position to come to the electorate of this country and ask them to endorse it.

[Sir William Cash]

Does my right hon. and learned Friend therefore agree with my right hon. Friend the Prime Minister in his statement of 23 March that apart from reform, we need a fundamental change in our relationship with the EU?

[Mr Grieve]

It seems to me that the key will be providing the necessary reassurance that the United Kingdom, which will remain outside the eurozone, has the necessary guarantees that that will not be to its disadvantage. That is the key issue and the one on which we should concentrate, although there are other aspects which will need to be looked at.

Counter-Terrorism and Security Bill

Debate between Dominic Grieve and William Cash

Tuesday 6th January 2015 Commons Chamber

[Sir William Cash]

My right hon. and learned Friend and I have crossed swords on this matter on a number of occasions over the past 15 or 20 years—since he made his maiden speech. With regard to his assertions about the common law, does he believe that the common law would be sustainable in the context of the charter of fundamental rights, because that would refer questions of family life and other matters to the European Court of Justice? How could the common law survive on that basis?

[Mr Grieve]

The biggest threat to the common law is the statutes we pass in the House that undermine it. The principles of the common law are crystal clear in respect of the right of a British-born citizen and the Queen’s subject to reside in their homeland. Parliament, if it so wished, could undermine that. That has always been the problem with the common law. It is one of the reasons why we have such things as Magna Carta and habeas corpus, because the common law was insufficient. Indeed, I must say to my hon. Friend that it is one of the reasons why we have the Human Rights Act and the European convention on human rights, and why in fact those are additions to the common law that I happen to think can be on their own, while by no means perfect—I do not wish to be drawn further down that route—very valuable. However, the common law principle is clearly there, and when there is a common law principle, the important point is that we should interfere with it only very cautiously, particularly when it is so clear.

I want to make some progress and not to be diverted. The point at issue for the national whose passport has been removed and who will be made subject to this process is that they could be left in a very vulnerable condition in the location in which they find themselves. That is why I think judicial oversight would be so valuable for the Government, were they to accept it, because it would allow the reassurance that, in taking an action that in my view is reasonable, necessary and proportionate, and on which I wholly support my right hon. Friend the Home Secretary and my hon. Friend the Minister, there will not be untoward consequences that would bring that action into disrepute.

Injunctions

Debate between Dominic Grieve and William Cash

Monday 23rd May 2011 Commons Chamber

[The Attorney-General]

I would not normally comment on the role I have to carry out as Attorney-General in the public interest and not as a Minister of the Crown, but there is no secret in the fact that, as matters stand, I have received no referral whatsoever in relation to any civil contempt of court.

[Mr William Cash (Stone) (Con)]

Does the Attorney-General accept that the fault in this case lies with Parliament itself in not repealing the Human Rights Act 1998? As the then shadow Attorney-General, I advocated doing that and it remained Conservative policy until the general election. Does he accept that it is about time that we legislated on our own terms in Westminster to deal with these matters, and in terms of parliamentary privilege, to ensure that the British voter actually sees legislation that is what he wants and that we have British law for British judges?