United Kingdom’s Withdrawal from the European Union

Debate between James Cartlidge and William Cash

Friday 29th March 2019 Commons Chamber

[Sir William Cash]

I have great respect for the hon. Lady. I will only say that we have had this debate before and we differ on the matter. Of course I want to see the Good Friday agreement retained, because it has been a tremendous triumph, and I in no way wish to disparage that. However, there are very serious questions about the constitutional status of Northern Ireland as a result of the backstop. I have heard hon. Friends—good friends of mine—who themselves may have changed their minds on whether to support the withdrawal agreement, repeatedly objecting to the backstop. We have had the distinguished Attorney General and Solicitor General opining on the subject. We have had some very interesting outcomes. However, the reality is that the backstop is an insuperable impediment to the House agreeing to the withdrawal agreement.

[James Cartlidge]

My hon. Friend talks about opting back into the European Communities Act, which we all know is what will happen in the transition, but there is a key word there: “transition.” Does he accept that the risk of defeating the withdrawal agreement today is that we will stay in the European Communities Act forever?

Privilege (Withdrawal Agreement: Legal Advice)

Debate between James Cartlidge and William Cash

Tuesday 4th December 2018 Commons Chamber

[Sir William Cash (Stone) (Con)]

I must say that I found the answers given by the Attorney General yesterday extremely difficult to understand in the terms in which they were expressed—that is, of relating to the national interest, because that is a question that is contained in the results of the referendum and the European Union (Withdrawal) Act 2018. Following reports that I have heard, I also find it most unsatisfactory that this issue is regarded as a parlour game, and that we have been told to stop messing around with the process and to grow up. I think that that somewhat underestimates the significance of what we are dealing with here, but I will leave it at that, because people in these circumstances sometimes use language that underestimates the importance of the matters that are being dealt with.

I would like to say to the Leader of the House and to the Law Officers that the question of conventions turns on the reason for the rule. In this context, the reason for the application of this particular convention, which includes the question of the ministerial code, clearly demonstrates that, unless we know what the Attorney General has actually given by way of a full disclosure, it is extremely difficult to know whether or not the public policy that has been pursued is consistent with the legal advice that he gave.

Ivor Jennings was one of the greatest constitutional authorities on these matters. He said that

“conventions are observed because of the political difficulties which arise if they are not.”

I suggest that nothing could better illustrate the current situation, and in particular the issues relating to the ministerial code. The ministerial code states:

“The Law Officers must be consulted in good time before the Government is committed to critical decisions involving legal considerations.”

The Chequers proposals lie at the heart of the beginnings of the issues with which we are considering the withdrawal agreement, and I have been informed that the Law Officers were not consulted before the Chequers proposals. This has had dire consequences. Indeed, I said to the Prime Minister on 9 July that I did not think she would be able to reconcile the Chequers proposals with the express repeal of the European Communities Act 1972 in the European Union (Withdrawal) Act 2018, which was passed on 26 June, 16 days before Royal Assent was given. We were then presented with the Chequers proposals. Everyone knew, when Royal Assent was given, that the express repeal of the 1972 Act had been enacted, yet it was clear, because it happened only a few days later, that an 80-page White Paper was being produced, the effect of which was to demonstrate that the 1972 Act was going to be considerably altered. I regarded that as a massive breach of trust, but it could have been resolved if we had had the full advice of the Attorney General at that time.

Under that same convention, and with respect to the present withdrawal agreement, it is essential for us to know now whether the present Attorney General gave advice on the issue of incompatibility between the express repeal of the 1972 Act in the European Union (Withdrawal) Act and the withdrawal agreement. There is no indication in the Attorney General’s introduction to his legal statement yesterday that he addressed that question as a matter of fundamental constitutional importance. Indeed, he states that the agreement needs a new Act of Parliament in domestic law, but as I pointed out in The Sunday Telegraph that is no more than a wing and a prayer.

I asked the Prime Minister about such matters during her statement last Monday and in the Liaison Committee, but I received no satisfactory answer. I also asked the Attorney General a similar question yesterday, requesting that he draw his attention to a Queen’s bench division that was cited as a precedent for the disclosure of the Attorney General’s advice. There are four other precedents, but Factortame is particularly significant due to the incompatibility between the 1972 Act and the withdrawal agreement.

If we do not have the full disclosure of the Attorney General’s opinion, that is relevant to the question of whether the actual withdrawal agreement itself is invalid under the Vienna convention, because a fundamental failure to comply with internal domestic constitutional law amounts to grounds for the invalidity of such a withdrawal agreement.

[James Cartlidge (South Suffolk) (Con)]

Will my hon. Friend give way?

[Sir William Cash]

Just one moment. If there is a danger that the withdrawal agreement could be invalid, that is a matter of fundamental importance on which I would have expected the Attorney General to include his opinion, but there is no evidence whatsoever that he referred to that in his opinion, and that is why we need full disclosure. I also understand that there are sheaves of papers within governmental circles unpacking the repeal of the 1972 Act with respect to the prospective withdrawal and implementation Bill, which is again a matter of extreme public importance. By any standards, all these matters fall not only within the ministerial code, but within what I would have hoped and expected the Attorney General to deal with in his opinion and the statement he gave yesterday, but there was nothing there to give me any comfort whatsoever.

To say that we should move on and get real and that what the Attorney General thinks is in the national interest actually is in the national interest does also bear on the question of whether the European Union (Withdrawal) Act is a matter of extreme public interest and fundamental importance. The failure to address that question in the introduction and in the legal statement seems to be a mistake of the first order and, furthermore, to be inconsistent with what I would have expected from the legal opinion of the Attorney General.

As to the role of the Attorney General, I simply refer to the authoritative work “The Attorney General, Politics and the Public Interest”, published in 1984 and written by Professor John Edwards. In his chapter dealing with ministerial consultations with the Law Officers, it is made clear that all legal advisers from all Departments will ultimately turn on the view of the Attorney General. Edwards states that there will be times when the Attorney General, perceiving the legal implications of a Department’s proposed course of action—in this case, No. 10 and the Department for Exiting the European Union—will find it necessary to oppose a Minister’s preferred policy. Such opposition must also derive from the legal implications of the proposed policy.

As Edwards says on page 190 of his authoritative work, for the Government to reject such advice would be quite exceptional and would reasonably lead to serious questioning by the Attorney General himself of his continuing to serve as the Government’s chief legal adviser. Without full public disclosure of his opinion, it will be impossible to get to the bottom of all the considerations that are at the heart of the issue of public trust to which the former Secretary of State for Exiting the European Union referred regarding the manifesto and the reasons for his resignation and the conduct of the Government, to which I have referred myself in terms of broken promises made in the House recently.

The reason why my European Scrutiny Committee is making a full inquiry into this situation is, in a nutshell, because we want to get to the bottom of the conduct and the processes and the outcome of these negotiations, and we will do so by taking evidence. I trust that the Government will take note of the seriousness of the suggestions and the arguments that I am putting forward, because they go to the heart of public trust, the referendum vote itself, the repeal of the 1972 Act, whether the Attorney General has fully addressed the consequences for the withdrawal agreement of the opinion that he has given, which we have a right to see, and whether it is really in the public interest for it not to be disclosed.

Exiting the European Union and Global Trade

Debate between James Cartlidge and William Cash

Thursday 6th July 2017 Commons Chamber

[Sir William Cash]

He is my right hon. Friend—my very good friend. [Laughter.] I have great respect for him, although we do not always agree about everything. The same is true of my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), who is, I suspect, on much the same track as him.

We enjoy a trade surplus of £34.4 billion with the rest of the world. As I said, yes, 44% of our trade is with the EU—

[James Cartlidge]

Will my hon. Friend give way on that point?

[Sir William Cash]

Yes, all right.

[James Cartlidge]

Is the surplus to which my hon. Friend has referred not smaller than our surplus in services with the EU?

[Sir William Cash]

It is the aggregate of goods and services. When we consider whether we are making a deficit or a surplus, we have to look at the totality of the position.

Mr Crawford Falconer, the chief trade negotiation adviser, has an enormous amount of experience, and I am extremely glad to hear that he has been given the job of negotiating with countries such as the USA, Canada and Australia. Last year, our trade surplus with the USA was £39.6 billion and our trade surplus with Canada was £1.3 billion. In 2015, we had a trade surplus of £3.7 billion with Australia. They have all said that they want to trade bilaterally with us. It is absolutely right that we should go into those negotiations on the basis that they will lead to greater prosperity for everybody, including ourselves.

Such trading arrangements are the means by which our economic growth and our prosperity will increase exponentially. They will provide security and stability, which will allow us to deliver an effective economy and public services from the taxation of the companies involved. It is a virtuous circle and we are dedicated to it not out of ideology or from any sense of anti-Europeanism, but simply because it works. It is a good policy. The Prime Minister has put her will behind it, and my right hon. Friend the Secretary of State has explained it thoroughly and well today.

Whatever the circumstances, and whether we were remainers or leavers, we must continue with our current policy. Angela Merkel says that what matters is the future of Europe, not Brexit. That is the policy of the German Chancellor. Let us seize the opportunity to make Brexit work in our national interest.