Oral Answers to Questions

Debate between Geoffrey Cox and William Cash

Thursday 11th April 2019 Commons Chamber

[The Attorney General]

I find myself in total agreement with what the hon. Lady has said. I will share them with my colleagues. We are not in any way going to permit our departure from the EU to detract from our firm and unshakeable commitment to human rights in this country and to the rule of law.

[Sir William Cash (Stone) (Con)]

In that context, and given the December resolution of the House regarding publication of the Law Officers’ opinions, will my right hon. and learned Friend be good enough to tell the House whether his advice was sought on these vital matters of time extensions before critical decisions were taken, as required by the ministerial code? Will he publish that advice?

[The Attorney General]

I am grateful to my hon. Friend for the question. He knows that I am acutely conscious of his desire to have the maximum transparency upon the legal advice I give to the Government. He also knows that I am bound by a long-standing convention relating to Law Officers’ advice to disclose neither the fact nor the content of it. Within those constraints, I consider constantly to what extent I can make available to the House all the information it needs to take the important decisions that theses times require.

United Kingdom’s Withdrawal from the European Union

Debate between Geoffrey Cox and William Cash

Friday 29th March 2019 Commons Chamber

[The Attorney General]

Plainly, that would be open to the House to do. The problem is that we would have lost the legal right to the extension, so we would apply to the discretion of the Union for it to be granted.

Let me come back to the political declaration, because it is important that I should say a few more words about it. The process that is—

[Sir William Cash (Stone) (Con)]

On a point of order, Mr Speaker. I am seeking to catch the attention of the Attorney General, and wondered whether he might have a loss of hearing or something.

[Mr Speaker]

In my experience, the hon. Gentleman is both noticeable and audible.

--- Later in debate ---

[The Attorney General]

We would have accepted the hon. Gentleman’s amendments. Clearly, in terms of the detailed working out of those amendments, in discussion—[Hon. Members: “Ah!”]. No, no, no—hon. Members can table an amendment. If it requires amendment to that legislation, we would obviously consider the detail carefully, but we would be minded to accept such.

[Sir William Cash]

I am most grateful to the Attorney General for giving way. He has referred on a number of occasions to the withdrawal and implementation Bill. He knows, as do the Secretary of State for Exiting the European Union, the Prime Minister and others, that the European Scrutiny Committee has asked repeatedly over the past month for a draft or a copy of the withdrawal and implementation Bill. He has just said that if the withdrawal agreement goes through, the withdrawal and implementation Bill will follow. If the withdrawal agreement is not approved today, will the withdrawal and implementation Bill come to this House and be introduced in any event?

[The Attorney General]

What I can say to my hon. Friend is that we would certainly give it very careful consideration. We have taken the view up till now that, before the withdrawal agreement is approved, it is premature to publish the Bill. There are certain elements of it that still remain to be finalised. However, as I have said to my hon. Friend privately, the moment we are in a position to publish it, he, as Chairman of the Committee, will be among the first to see it.

Withdrawal Agreement: Legal Opinion

Debate between Geoffrey Cox and William Cash

1st reading: House of Commons
Tuesday 12th March 2019 Commons Chamber

[The Attorney General]

Of course I can confirm all those things, which are self-evident in the agreement. May I just point out to the right hon. Gentleman that although I am sure it is a clever forensic point, the circumstance in which a point of European Union law would arise in connection with the best endeavours and bad faith clauses is difficult to envisage? The reality is that it is a straightforward question of fact: is the European Union moving with the urgency and pace, to the procedural timetables and according to the procedural steps that this agreement now enforces?

The right hon. Gentleman is an honest politician, and he cannot look these things in the face and say that they mean nothing. These are important amplifications and clarifications of the duty of best endeavours. I quite agree with him, as I very much doubt we would ever get to an arbitral tribunal, because what these duties, new clarifications and amplifications do is set the framework for people’s conduct within the negotiation. It is about the impact on their behaviour and conduct. Very rare is the case in which one would get to an arbitral tribunal. What matters is the framework of obligations and responsibilities, and those have materially tightened on the European Union.

[Sir William Cash (Stone) (Con)]

I thank my right hon. and learned Friend for his opinion, which is not only for the Government, I would stress, but for Parliament and for the voters. The substance of the backstop issue to which he has just referred is the legal, constitutional and, therefore, political status of Northern Ireland within the United Kingdom, which cannot be put at risk.

My right hon. and learned Friend refers to a reduced risk of the UK being “indefinitely” detained in the protocol, but he adds that, ultimately, there is

“no internationally lawful means of exiting”

unless both the EU and the UK agree. Does he therefore appreciate, on his own terms, that this fundamental legal impediment trumps political considerations and that, therefore, there would be insufficient protection for Northern Ireland to continue as part of the United Kingdom?

[The Attorney General]

I do not agree. My hon. Friend knows we have a difference of opinion, and I hope that he will move towards my position. I still hope that might be so, and I say that because one has to look at the mutual incentives and disincentives for both parties to stay in the arrangement. I made this point in December and, for the reasons I advanced in December and in my November opinion, the incentives or disincentives for the European Union are as profound, if not greater, to get us out of the backstop than to keep us in it. That is what I firmly believe. He may disagree, but that is what I believe.

That is why I have taken the political judgment that this withdrawal agreement needs to be supported but, in saying that, these improvements do make a difference. In the last line of my advice, I say there can be no lawful exit unless there is a fundamental change of circumstance. It is extremely important to remember that there is always a right to terminate a treaty unilaterally if circumstances fundamentally change. There is no question but that we have a right to exit if those circumstances apply.

Oral Answers to Questions

Debate between Geoffrey Cox and William Cash

Thursday 7th March 2019 Commons Chamber

[The Attorney General]

The plans for next week are not mine to decide, but what I can tell the hon. Gentleman is this: we are discussing detailed, coherent, careful proposals, and we are discussing text with the European Union. I am surprised to hear the comments that have emerged over the last 48 hours that the proposals are not clear; they are as clear as day, and we are continuing to discuss them.

[Sir William Cash (Stone) (Con)]

Will my right hon. and learned Friend give Parliament 48 hours’ notice or, at any rate, properly full notice of the outcome of his discussions with the EU? Will he provide to Parliament a draft of the withdrawal and implementation Bill, so that my European Scrutiny Committee, and others in Parliament and others outside, can assess how the withdrawal agreement will be enacted in domestic law, as obliged by article 4 of the withdrawal agreement; how the Bill would ensure the statutory manner in which the express repeal of the European Communities Act 1972 will be dealt with; and how the question of disapplication by the courts—by the Supreme Court—will be handled under that enactment?

[The Attorney General]

We will endeavour to give as much notice as we possibly can. Of course those discussions are running. They will resume very shortly and continue almost certainly through the weekend. We will endeavour to give the House notice as early as we can, if and when we have something to report. My hon. Friend made a second point about the Bill. That is not for me to decide, although I will certainly discuss the matter with those who will make that decision. We will endeavour to give the European Scrutiny Committee, and my hon. Friend, the earliest possible notice.

Withdrawal Agreement: Legal Position

Debate between Geoffrey Cox and William Cash

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

The right hon. Gentleman has thrown down the gauntlet in asking me to re-examine my support for the agreement. I do not mind confessing to him that I have wrestled with this question, because I am a Unionist and dislike any divergence between Northern Ireland and the rest of the United Kingdom; but I have had also to take into account first that this is an arrangement that we can avoid, and secondly that if we were in it, it would be as much an instrument of pain to the European Union as it would be to the United Kingdom.

I ask the right hon. Gentleman to think of what the European Union is now accepting. It accepts that Northern Ireland can have free circulation of its goods not only into the single market, but to Great Britain. No other single market trader will have that advantage. Hundreds of single market traders throughout the European Union are going to resent the fact that the goods of a Northern Ireland business situated one mile north of the border can flow smoothly into the single market and smoothly into Great Britain, while theirs cannot. So there are real reasons, which the right hon. Gentleman and I can discuss at greater length, why I do not believe that this will become a permanent solution.

Let us suppose, however, that those negotiations broke down or took an unreasonable length of time. All around the European Union there will be single market traders seeing the benefits that Northern Ireland can have, who will be induced by those benefits to ask, “Should we go on putting up with this uncompetitive arrangement?” And what are they likely to do? Why, they are likely to beat a path to the door of the Commission and the Court, and there to say, “Didn’t you say that article 50 is not a sound legal foundation for this arrangement?” And I tell you frankly, Mr Speaker, they are likely to win.

[Sir William Cash (Stone) (Con)]

On the issue of precedents, there are five—[Interruption.]

[Sir William Cash]

Thank you, Mr Speaker.

There are five precedents over the past 40 years of full disclosure being made of an Attorney General’s advice for compelling and exceptional reasons in the public interest. Does my right hon. and learned Friend agree that he can—as in my view he should—consent on his own independent account as Attorney General under the ministerial code to the full publication of his legal advice given that, as cited in the Queen’s bench division in July 2009, the then Attorney General’s advice on the seminal Factortame case was disclosed, which dealt with the incompatibility of the European Communities Act 1972 with an Act of Parliament, the Merchant Shipping Act 1988, which was then struck down in the courts, analogous to the legal status of the withdrawal treaty in relation to the European Union (Withdrawal) Act passed by this House in 2018, and with which that treaty is incompatible?

[The Attorney General]

This is not a question of the lawfulness of the Government’s action, as it was in the publication of Lord Goldsmith’s advice; this is simply a view on the legal effects of a particular agreement. There are hundreds of lawyers throughout the United Kingdom, I am delighted to say, who could offer a perfectly competent view on this agreement. I cannot see why there is anything exceptional about the current circumstances and about my advice. But let us suppose there were something exceptional about my advice; well, I am here to be asked any question that the Government have also asked, so all that right hon. and hon. Opposition Members have to do is ask and I will give them a frank answer.

European Union (Withdrawal) Bill

Debate between Geoffrey Cox and William Cash

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

[Mr Cox]

The point is that these broad and general rights are ripe with value judgments. Quite often, they are not appropriately dealt with by six or seven elderly white judges in a Supreme Court; they are better resolved on the Floor of this House and by a democratic vote in this Parliament.

[Sir William Cash]

Will my hon. and learned Friend give way?

[Mr Cox]

If my hon. Friend will forgive me for a moment, I need to develop an argument, because I want to move on.

Let us accept for the moment that there is a second and perfectly legitimate way, which international law accepts. International law does not require subscribing nations of the United Nations to adopt a Bill of Rights, and neither does the European Court of Human Rights—it never did require us to do so. It looked at the substantive and practical effect and how those rights were substantively protected in the jurisdiction. If we accept that for a moment, why should we not proceed by means of the Government’s proposed policy of examining specific statutory remedies and specific rules of common law, and considering whether the right is satisfactorily protected?

Some of us believe that the courts are not always the right place in which to deal with these matters. For example, article 20 of the charter of fundamental rights simply contains a right to equality before the law. That right has been enshrined in the common law in this country for centuries. Why should we have it in the charter of fundamental rights? Some say that there will be a problem between the two charters—