European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

Thursday 7th September 2017 Commons Chamber

[Mr Kenneth Clarke (Rushcliffe) (Con)]

The Opposition spokesman has just reminded us that this Bill was trailed for a long time as the “great repeal Bill”, which is a very unlikely title. Fortunately, it repeals hardly anything at all, which is one blessing. One thing that it does repeal, however, is the European Communities Act 1972, which is a particular irony for myself and, no doubt, for the hon. Member for Bolsover (Mr Skinner), as we well remember that Act. I was then a Government Whip and engineering, mainly by co-operating with the Jenkinsite faction of the Labour party, how we were to get the vote through against the rebellious, imperialist Eurosceptics who were then on our Back Benches. It is therefore an irony that a complete mirror-image debate now presents itself to me rather many years later.

My starting point is where the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) finished. I have to accept that we are going to leave the European Union. I accept that because this House passed the legislation to enact article 50 by a large majority. I argued and voted against it, but it went through, and it is idle to pretend that it is politically possible for that to be reversed. The question now is how we leave. I quite accept my right hon. Friend the Secretary of State’s basic premise that technical legislation is required to ensure that it is practicable to get a smooth legal transition, but I do not think that the Bill confines itself to that aim, as has just been said. A Bill of this kind is necessary, and we will have to vote for it, but the question is whether this particular form of the Bill is remotely acceptable.

I studied the amendments tabled by the official Opposition, and indeed those tabled by large numbers of other Members, and my conclusion was that I found myself agreeing with the overall majority of the sentiments and opinions in all of them. The one thing that gave me a problem was that they all suggest that the House

“declines to give a Second Reading”

to the Bill, which would stop any possibility of our making the required changes. However, minded as I am to contemplate voting for Second Reading, I will need some assurances before we get there, in particular that there will be sufficient movement on some of the unanswerable points being made about parliamentary democracy and a smooth transition to whatever the alternative is, so that the Bill becomes something other than wrecking legislation if it proceeds. I have not decided yet—I am actually going to listen to the debate, which is a rare feature in this House, because if we were to defeat the Second Reading, the Government would be obliged to bring back another Bill to try to achieve the same purpose. If the Government will not move in the next two days of debate, we may have to force them to go back to the drawing board and try again to produce a Bill that is consistent with our parliamentary traditions and that gives this House the control that leaders of the leave campaign kept telling the British public during the referendum campaign they were anxious to see.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

Will my right hon. and learned Friend give way?

[Mr Clarke]

I will not, because large numbers of people want to speak and I want to touch briefly on the time constraints. During the proceedings on the 1972 Act, I have no doubt that the hon. Member for Bolsover, like me, sat through days and days and weeks and weeks of very high-quality debate. It was a historic moment and it was not constrained by these Blairite notions of family-friendly hours, timetables and so on. I do not want to go back to the all-night filibustering and some of the nonsense that led to those practices being discredited—that is not suitable in the 21st century—but this Government began this process by trying to argue that the royal prerogative enabled them not even to bring article 50 before the House. They have been trying to reduce parliamentary scrutiny and votes ever since the whole thing started.

As a simple example, I raised with you a few moments ago, Mr Speaker, the question of the 5 o’clock rule. Apparently we all have to stop at 5 o’clock this afternoon. It would reassure me about the Government’s intentions if the opportunity were taken to lift that limit now. The Leader of the House only has to rise at some time in the next hour or so and say that the 5 o’clock will not be invoked today, and all the time constraints that we face will not be a problem. I hope that the Bill’s programme motion will not confine debate to a comic number of days. The speech of the right hon. and learned Member for Holborn and St Pancras showed how complex some of the debates will be, and we do not want to be told that we have to give legal analysis in five minutes flat or be cut out by some quite unnecessary timetable. We have at least until the end of 2019 to get these procedures right.

There are two broad issues. One of them I will leave alone because the concerns have been dealt with brilliantly and will dominate a lot of today: the Henry VII clause, the sweeping powers and the extraordinary nature of the legislation. I will not try to compete with what I think, with respect, was a brilliant speech from the right hon. and learned Gentleman, and I hope that we will hear some reply to it over the next two days of debate—I am sure that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) will touch on it.

My own analysis of clauses 7 and 17 is probably not up to the standards that have already been demonstrated, and there is no point in repeating the case, so I will just say one thing to my right hon. Friend the Secretary of State and his colleagues about what I expect in response. We are told that conversations will be held with my right hon. Friend the Member for Broxtowe (Anna Soubry), and I am delighted to hear that. We are told that we will have assurances about how Ministers are going to use the powers, but at every stage in my right hon. Friend the Secretary of State’s speech he actually defended the wording in the Bill, as he had to, and did not make the faintest concession either to the justifiable concerns about the impact on devolution or to the even bigger concerns about whether we are going to fritter away parliamentary democracy in this House by passing the Bill in its present form.

I know that my right hon. Friend is sincere in his assurances. He is one of the people in this House whom I would trust to seek to deliver what he is offering to us, but the reality, as someone has already said, is that we are all transient in politics. He will come under pressure from some of his colleagues, and we have no idea who will be in any particular post in 18 months’ time. The letter of the law will determine the scope for parliamentary scrutiny. I do not want more assurances or charm; I want positive amendments and changes. The Government will salvage their reputation if they take the lead and produce amendments that answer the points made by the right hon. and learned Member for Holborn and St Pancras, and if they reassure us that the drafting was a misunderstanding. Better drafting can make it the no-policy-change, technically necessary Bill that I would quite happily support.

The second issue, very briefly, is the question of staying in the single market and customs union during the transitional period. Of course we will have a transitional period, of course it has to be a smooth transition and of course by the end of 2019 we will negotiate a basis for future free trading arrangements, but the Government have to move, just as the Opposition have moved. I made a speech in the Queen’s Speech debate explaining why I am in favour of staying in the single market and customs union at least for the transitional period, and I then answered the various arguments that are routinely thrown out, so I will not repeat any of that now.

There is now only a whisker of difference between us. I do not deceive myself that I converted the Labour party, which has tabled an amendment identical to my arguments in the Queen’s Speech debate, with which it did not then agree, but its proposals are remarkably near the Government’s proposals.

We all know, and British business knows, that we need a smooth transition. We do not need change until we are certain that we have some acceptable new arrangements. The Government’s position paper on customs arrangements—I will not read it all—says:

“This could involve a new and time-limited customs union between the UK and the EU Customs Union, based on a shared external tariff and without customs processes”.

I will not go on, but there is an absolute whisker of difference between the Government’s paper and what the Opposition are now saying, and what everybody of the slightest common sense, in my opinion, is saying—that we should stay in the single market and the customs union until we know that we can smoothly transfer to some new and equally beneficial arrangement. Again, I would like some reassurances on that.

I detect in the wording of the Bill and the Opposition’s amendment that we are crawling towards the cross-party approach that will obviously be required to settle this in the national interest. It is absurd for the Labour party to say that it is all agreed on the new policy it has adopted, and it is absurd for the Conservative party to say, “We’re all agreed on whatever it is the Secretary of State is trying to negotiate in Brussels.” The public are not idiots; they know that both parties are completely and fundamentally divided on many of these issues, with extreme opinions on both sides represented in the Cabinet and shadow Cabinet, let alone on the Back Benches.

Let us therefore resolve this matter. Let us make sure this Bill does not make it impossible to stay in the single market and customs union, and let us have a grown-up debate on the whole practical problem we face and produce a much better Act of Parliament than the Bill represents at the moment.

--- Later in debate ---

[Sir William Cash (Stone) (Con)]

In British constitutional history, there are few examples of Bills of such historic significance as this. Since the mid-1980s, I have been arguing for our legislative sovereignty in respect of EU legislation, even under the premiership of Margaret Thatcher, as was seen in my amendment of 12 June 1986. Even then, I was not allowed to debate it, let alone move it. Then we had Maastricht, Nice, Amsterdam and Lisbon. Together with other colleagues—I pay tribute to them all again—we fought a huge battle and here we are now.

Today, at last, we have the withdrawal and repeal Bill, an original draft of which, as my right hon. Friend the Secretary of State knows, I circulated in the House of Commons even before the referendum. It said two very simple things: we need to repeal the European Communities Act 1972 and transpose EU law into UK law when the treaties cease to apply to the United Kingdom under article 50. However, contrary to the reasoned amendment tabled by the official Opposition, this Bill—the Government’s Bill—will emphatically protect and reassert the principle of parliamentary sovereignty precisely because it is an Act of Parliament, or will be if it goes through. It will repeal the European Communities Act, sections 2 and 3 of which asserted the supremacy of EU law over UK law. That is the central point.

Indeed, the referendum Bill itself was authorised by an Act of Parliament, by no less than 6:1 in the House of Commons, and as my right hon. Friend the Secretary of State pointed out, the article 50 withdrawal Act was another reassertion of sovereignty, which was passed by 498 to 114 votes in this House. All or most Members of the Opposition voted for it. That result was reinforced in the general election, when 86% of the votes for all political parties effectively endorsed the outcome of the referendum. This is democracy and sovereignty merged in its fullest sense and acquiesced in by the official Opposition, who are now putting up a reasoned amendment against endorsing the very decision that they themselves have already not merely participated in but agreed on. We should therefore be deeply disturbed that they should now seek to decline to give this Bill a Second Reading, cynically claiming that they respect the EU referendum result. In fact, their amendment defies belief. As the snail asserts in “Alice in Wonderland”, they

“would not, could not, would not, could not, would not join the dance.”

This is a serious dance. This is not Alice in Wonderland, but a real dance implementing the democratic decision of the British people—the United Kingdom as a whole.

The Opposition’s reasoned amendment fails to comprehend the simplest fact, which is that parliamentary sovereignty is no less embedded in this Bill than in the European Communities Act itself, which, in the very pursuance of parliamentary sovereignty, repealed our then voluntary acceptance under sections 2 and 3 of the 1972 Act. Indeed, Lord Bridge in the Factortame case made the basis of that Act crystal clear even to the point of the House of Lords striking down an Act of Parliament—namely the Merchant Shipping Act 1988—because of its inconsistency with the 1972 Act.

In 1972, therefore, by virtue of the historic invasion of our constitutional arrangements, we acquiesced in the subversion to the European Union of this House—and all without a referendum, which we did have this time when we got the endorsement of the British people under an Act of Parliament passed by 6:1 in this House.

Furthermore, the 1972 Act absorbed into our jurisprudence not only a vast swath of treaties and laws but the dogmatic assertions made by the European Court of the supremacy of EU law over our constitutional status. I would mention Van Gend en Loos, Handels- gesellschaft and so on—a whole list of cases asserting, through the European Court, EU constitutional primacy over Parliaments, including our Parliament and its sovereignty. That was made even worse by the White Paper that preceded the 1972 Act and pretended—I almost say by deceit—that it would be essential to our national interest to retain the veto and never give it up, because without it the fabric of the European Community would be impaired. The then Government understood what it was all about; they knew that it would destroy the European Union if a restriction was imposed on our ability to veto legislation. Since then, the EU’s competencies have been vastly extended.

As for the Henry VIII procedures in the Bill, I hear what my right hon. Friend the Member for Broxtowe (Anna Soubry) said about what I said in 2013, but I am talking about the EU-specific legal jurisdiction and the context in which we are discussing the subject, which is the 1972 Act. Yes, we could have reservations about elements of Henry VIII procedures, but the biggest power grab of all time in British constitutional history has been the 1972 Act itself. It incorporated all the EU laws made and accumulated from 1956 right through to 1972, and my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) was running around as a young Whip cajoling people to move down the route of subverting our entire history and constitutional arrangements through these new arrangements. They subverted the constitutional supremacy of this House.

[Mr Kenneth Clarke]

May I remind my hon. Friend of his contribution to the debates on the Maastricht treaty? He made most of the arguments then that he is making now, but I do not recall him being so enthusiastic for legislation to be speedily passed through this House with no proper powers retained over any of the detail. When did his conversion to this new prompt procedure take place?

[Sir William Cash]

I am so glad that my right hon. and learned Friend has made that point, because I would like to endorse what he was saying earlier—I would like to see proceedings extended beyond 5 o’clock tonight. I will not have the opportunity to make a speech as long as that which I made on Second Reading of the Maastricht Bill—I think it lasted something like two hours—but for the reasons that have already been given, I think that this Bill is quite different in character. Then, we were dealing with extensions of competencies and here we are dealing with the principles of repeal, sovereignty and democracy.