Points of Order

William Cash Excerpts

1st reading: House of Commons
Thursday 13th July 2017 Commons Chamber

[Sir William Cash (Stone) (Con)]

Further to that point of order, Madam Deputy Speaker. Will you confirm that, immediately after the presentation of the Bill and its First Reading, the Second Reading will deal with the principle of the Bill, according to “Erskine May” and all the rules of the House? Will you also confirm, with respect to this particular Bill, that although some do not seem to have seen it yet, it is about leaving the European Union and repealing the European Communities Act 1972 and that anyone who votes against its Second Reading will be in breach of that principle?

[Madam Deputy Speaker]

As the hon. Gentleman and the House know, the Bill in question is about to be presented. When the Minister presents the Bill, it will then be there for all to see. Each Member can make their own consideration of what the Bill is about and how they would like to interpret it. If they wish to try to amend it, that is what Parliament is for. I am quite sure that we will have plenty of discussion about that in the forthcoming weeks and months.

European Union (Withdrawal) Bill

William Cash Excerpts

2nd reading: House of Commons
Monday 11th September 2017 Commons Chamber

[Mr McFadden]

The right hon. and learned Gentleman is, of course, correct that we have had some of these debates before.

The criticism does not stop with the House of Lords Committee. The Hansard Society says that

“the Bill will strengthen the…executive, not Parliament”.

Its report on the Bill says:

“the broad scope of its…powers, the inadequate constraints…on them, and shortcomings in the proposed parliamentary control…will be…a toxic mix”.

We have had regulatory Bills before, and many years ago, when I was first elected, I was involved in taking the Legislative and Regulatory Reform Act 2006 through the House. There was huge controversy about the powers contained in that legislation, and many Conservative Members who most vociferously defend the European Union (Withdrawal) Bill attacked that Act as a huge power grab.

The response to the 2006 Act led to the setting up of a special scrutiny process for deregulatory measures, and the Hansard Society says:

“Previous legislation, such as the Legislative and Regulatory Reform Act 2006, provides examples of ways in which”

the Government

“could introduce safeguards into the EU (Withdrawal) Bill to tighten the scope and application of the powers.”

But there are no special scrutiny measures proposed in the Bill, even though its scope is far, far broader than the 2006 Act.

[Sir William Cash (Stone) (Con)]

Will the right hon. Gentleman give way?

[Mr McFadden]

With consideration for other speakers, I will press on.

In fact, most of the orders made under the proposed powers, far from being elevated into some kind of special sifting and debate procedure, will go through on the negative resolution procedure, with little or no debate.

On one level, I sympathise with Ministers. The outcome of the Brexit negotiations is so uncertain—in fact, getting an agreement at all is not certain—that they want to confer on themselves the maximum possible leeway in legislating, but Parliament cannot take that view. It has been argued that the best way to raise the issue of executive authority is in Committee and not now, but we already know that the Government propose to give themselves a majority on all Committees even though they did not win a majority at the general election. There is no indication—in fact, the very opposite—that the Government are more likely to listen in Committee than they are now. Parliament’s maximum moment of leverage to call on the Government to think again is not in Committee but now.

We have been told that a vote against the Bill is a vote for a chaotic Brexit, which is a bit rich. There only has to be more than two Cabinet Ministers in a room to produce versions of a chaotic Brexit. When Ministers are pushing against one another, and when letters supported by junior Ministers are being circulated attacking the policy of the Government in which they serve, the Tory party is well capable of producing chaos on its own. We have a legitimate job to do in scrutinising the Government. To further that end, I will vote against the Bill tonight.

European Union (Withdrawal) Bill

William Cash Excerpts

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

[Frank Field]

No, I will not give way. I want other people to be able to contribute to the debate.

The second reason why I feel disappointment at the Government’s stance is that they are misreading the other side with whom we are negotiating. A British assumption is always to allow give and take, but we now have the Barnier rule of all take and no give. I will in a moment comment on how we should respond to that. Anybody who is serious, as all of us in the Committee have been, about wishing to award equal status and citizenship to EU citizens in this country know that those negotiations could have been over in half an hour. It was never ever the intention but for the other side to tick that off and say it was very good. Millions of people could have been put at their ease about their lives—both Britons living in the European Union and European citizens, as they will become, living in Britain—and we should consider that very carefully in our negotiations from now on.

The third disappointment is that the Government have produced such a Bill. When we were campaigning to leave, I thought we would have a Bill with two, three or four clauses to get us out. I know that the Government have been beguiled by its first title—the great repeal Bill—with some group of clever people thinking it can be great only if it is large, rather than aiming to be effective. I do not believe that a Bill of this size, timetabled as it will be to deliver it for the Government, actually stands much chance of getting through the House of Lords. Hence, my emphasis on the rescue launch waiting in the form of my four new clauses, including this new clause, which I have had such pleasure in moving.

[Sir William Cash (Stone) (Con)]

Does the right hon. Gentleman accept that the House of Lords, which is of course unelected and which itself decided to pass the European Union Referendum Act 2015, really has no justification whatsoever for attempting to obstruct, delay or undermine this Bill?

[Frank Field]

A very important lesson needs to be learned by some of those in the House of Lords who think they can wreck the Bill and wear us down so that Brexit never takes place. There is a very important convention—the Salisbury convention—and there is a very important difference between a referendum and a party’s manifesto. The Salisbury convention allows us to give and take on the important parts of a manifesto—the parts to which Governments rightly feel committed, and which they wish to pursue in Parliament so that when they stand for re-election they can say they have done the job they promised to do.

This is a different ball game. As I tried to say at the beginning, it is difficult for us all to come to terms with the role we have as MPs and the role we have in a post-referendum debate. I think their lordships should know that if they try to wreck the Bill, many of us will push the nuclear button. Labour wants to see the House of Lords go—I am surprised there was not a cheer at that point—but their lordships will sound their own death knell. Not one of them is elected, and none of them has any standing whatsoever in preventing the Government from inviting the House of Commons to implement the referendum decision, as we are doing today.

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[The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Steve Baker)]

I am extremely grateful to you, Mr Hoyle. I very much hope that my voice makes it through these remarks.

I rise to support clause 1 stand part and to speak to Government amendments 381, 382 and 383. It may help the House and members of the public if I say that the decisions on those amendments will be taken on days seven and eight.

Clause 1 reads:

“The European Communities Act 1972 is repealed on exit day.”

It is a simple clause, but it could scarcely be more significant. In repealing the European Communities Act 1972, the clause will be a historic step in delivering our exit from the European Union, in accordance with last year’s referendum. I hope that all people on all sides of this issue can agree that the repeal of the Act is a necessary step as we leave the European Union.

[Sir William Cash]

Does my hon. Friend recall that the official Opposition voted against the Bill on Second Reading and therefore the repeal of the 1972 Act? They still claim that this Bill is not fit for purpose and that it usurps parliamentary sovereignty, when in fact it does exactly the opposite.

[Mr Baker]

I am very grateful to my hon. Friend and I look forward to seeing whether Opposition Members support clause 1 stand part.

If we were not to repeal the European Communities Act, we would still, from the perspective of EU law, exit the European Union at the end of the article 50 process, but there would be confusion and uncertainty about the law on our own statute book. For example, it would be unclear whether UK or EU law would take precedence if there was a conflict between them. The status of new EU law would also be unclear once the UK left the EU.

I intend first to set out briefly the effect of the European Communities Act on our legal system and the implications of its repeal. The UK is a “dualist” state, meaning that a treaty, even when ratified, does not alter our laws unless it is incorporated into domestic law by legislation. Parliament must pass legislation before the rights and obligations in a treaty have effect in our law. The European Communities Act gave EU law supremacy over UK law. Without it, EU law would not apply in the UK. The 1972 Act has two main provisions. Section 2(1) ensures rights and obligations in the EU treaties and regulations are directly applicable in the UK legal system. They apply directly without the need for Parliament to pass specific domestic implementing legislation. This bears repeating in the context of the clauses to follow.

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[Mr Baker]

Indeed. I have often thought that the scenery of our constitution had remained in place throughout my lifetime, but not the practical effect the electors of this country expected it to have.

[Sir William Cash]

In response, vicariously to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), may I point out that most decisions taken by the Council of Ministers are effectively made by consensus behind closed doors, with no record of who said what, how the decision was arrived at, or, unlike this House, with no record of any of the proceedings either?

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[Paul Blomfield]

I am surprised that such an ardent Brexiteer as the right hon. Gentleman does not understand what leaving the European Union involves. We do.

Until last Thursday, the debate on clause 1 looked fairly straightforward. The article 50 notification made our exit from the European Union in March 2019 a legal certainty, so, for the purposes of the Bill, exit day could be left in the hands of Parliament. But then the Government did something needless: they tabled amendments 381 and 382, putting a specified exit date—and, indeed, a specified exit time: 11 pm, or midnight Brussels time—into the Bill. Their consequential amendment 383 seems to contradict the other amendments in some regards, which underlines the chaotic way in which the Government have approached the Bill, but taken together, the intention of the three amendments is clear.

[Sir William Cash]

The rather mysterious explanation that the hon. Gentleman gave to my right hon. Friend the Member for North Shropshire (Mr Paterson) needs some elucidation. Would he be good enough to explain whether leaving the European Union means repealing the European Communities Act 1972, and why Labour voted against the Bill on Second Reading?

[Paul Blomfield]

I would have thought that it would be as clear to the hon. Gentleman as it is to me that leaving the European Union does involve revoking the European Communities Act. I will go on to explain why we have concerns about the Government’s amendments and the different decisions within them.

--- Later in debate ---

During the highly successful 45 years in which we have been one of the leading influential players in the European Union, the British Government have been the advocates of more regulation and higher standards. No British Government have ever taken up the cause of deregulating in Europe. The Barroso Commission, which was very sensitive to what appeared to be public feeling, was very keen to be a deregulatory commission. It gave it up. As one of the commissioners explained to me, it could not get any European Government, including the British Government, to come forward with any deregulatory proposals. Vice-President Tindemans, who was a very keen deregulator, was extremely anxious to get proposals. We tried to get some deregulatory proposals when we were in coalition. Not one Department could produce any that it was anxious to repeal. The joy that some people feel over the repeal of the European Communities Act is splendidly symbolic.

[Sir William Cash]

rose—

[Mr Clarke]

If there is anybody in this House who knows each of the 1,600 regulations in meticulous detail, it is my hon. Friend the Member for Stone (Sir William Cash).

[Sir William Cash]

Indeed. I wish to challenge my right hon. and learned Friend on his assertion that the manner in which the Council of Ministers has been operating has been adequately democratic and transparent. Can he please explain to us, from his own extensive experience, how it works and will he deny that, for the most part, it is done behind closed doors and that it is done by consensus, so nobody knows who decides what, how and when?

[Mr Clarke]

Under the Major Government, we introduced a process whereby parts of the European Council meetings were held in public. The Council of Ministers do hold public sessions, and an attempt was made to reach decisions in public sessions. It probably still goes on. [Interruption.] It does not amount to very much.

[Sir William Cash]

rose—

[Mr Clarke]

No, let me finish my answer. We did try to tackle this criticism. What happened was that each of the 28 Ministers gave little speeches entirely designed for their national newspapers and television, and negotiations and discussion did not make much practical progress. When the public sessions were over, the Ministers went into private session to negotiate and reach agreement. I used to find that the best business at the European Council was usually done over lunch. I have attended more European Council meetings than most people have had hot dinners. The dinners and the lunches tended to be where reasonable understandings were made. There were very few votes, but Governments made it clear when they opposed anything. When the council was over, everyone gave a press conference. It was a slightly distressing habit, because some of the accounts of Ministers for the assembled national press did not bear a close resemblance to what they had been saying inside the Council. I regret to say that some British Ministers fell into that trap. British Ministers and Ministers of other nationalities who had fiercely advocated regulating inside the Council would hold a press conference describing their valiant efforts to block what had now come in, which confirms some of my hon. Friend’s criticisms.

The fact is that most British Governments made it clear what they opposed and what they did not. If a regulation was passed in their presence, they had to come back here to explain why they had gone along with it. Now, that is enough on the European Communities Act.

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[Sir William Cash]

I want to start by simply outlining that, contrary to what the hon. Member for North East Fife (Stephen Gethins) has just suggested about there being weak arguments for why we should leave the EU and repeal the European Communities Act 1972, it is absolutely essential that we do so if we are going to have a self-respecting, self-governing democratic country. The Bill and this whole issue are about one main question, namely democracy, which is what everything else necessarily flows from. All the economic arguments and questions relating to trade and other matters are ultimately dependent on the question of whether we have the right to govern ourselves in this sacred House of Commons. That is the basis on which the people of this country make decisions, of their own free choice, in general elections—whether it is to vote for the Labour party, the Liberal Democrats, the SNP or the Conservative party—and then a decision is made in this House as to how they will be governed.

I repeat what I have said: we have just had Remembrance Day. I simply want people to reflect for one moment on the fact that those millions of people who died in both world wars died for a reason. It was to do with sustaining the freedom and democracy of this House.

[Chris Bryant (Rhondda) (Lab)]

Does not democracy presume that a Government would listen to the will of the House of Commons, whose Members are individually elected by their constituencies? Would it not be slightly odd, therefore, to proceed with the Bill without taking out the Henry VIII powers?

[Sir William Cash]

Put simply, on the European Union Referendum Act 2015, which was a sovereign Act of this House—the point that the hon. Gentleman has just made—the House of Commons agreed, by six to one, that it would deliberately transfer to the people the decision whether to leave or remain in the European Union. Unless that Act is repealed, I do not believe that that decision should be returned to by the House.

[Mike Gapes (Ilford South) (Lab/Co-op)]

The hon. Gentleman has referred to the millions of people who died in two world wars. Those two world wars took place before the existence of the European Union and we in Europe, including this country, Germany and France, have lived in peace for decades. Is not it the case that France, Germany and other countries will now never, ever go to war because of the European Union?

[Sir William Cash]

The answer to the hon. Gentleman’s question is that no two democracies have ever gone to war with one another. I declare a personal interest in this issue because my father was killed in Normandy, fighting for this country, and I am proud that he got the Military Cross for that reason. This is something that many people in this country really understand and believe. It is not easy to explain, but it is to do with the fact that people understand the real reasons that self-government is so important.

The proposal in the European Communities Act 1972, which we are now repealing, was the greatest power grab since Oliver Cromwell. It was done in 1972 with good intentions. I voted yes in 1975 and I did it for the reason the hon. Gentleman mentions: I believed it would create stability in Europe. The problem is that it has done exactly the opposite. Look, throughout the countries of the European Union, at the grassroots movements and the rise of the far right, which I deeply abhor and have opposed ever since I set about the Maastricht rebellion in 1990. I set out then why I was so opposed to the Maastricht treaty: it was creating European Government and making this country ever more subservient to the rulemaking of the European Union. As I said in response to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), that has been conducted behind closed doors. We have been shackled by European laws. He asked at one point if we could give one example. The ports regulation is a very good example. We fought that in the European Scrutiny Committee and in the House of Commons, but we were not allowed to make any difference to it. It was opposed by the Government, it was opposed by the Opposition, it was opposed by all the port employers and it was opposed by the trade unions. What could we do about it? Absolutely nothing!

[John Redwood]

Does my hon. Friend agree that once Parliament has passed the repeal of the 1972 Act, Ministers will only be able to do things that this Parliament permits them to do? Today, Ministers have to do many things that the European Union insists on, which this Parliament cannot discuss or overturn.

[Sir William Cash]

There are at least 12,000 regulations, every one of which would have required a whole Act of Parliament, with amendments and stages in both Houses. A transcript would have been available. People would have known who voted which way and why, and known the outcome of what was a democratic process. Instead, as I said to my right hon. and learned Friend the Member for Rushcliffe—even he conceded that I was right on this—the process is conducted, over bibulous lunches and in the Council of Ministers, in a manner completely lacking in democratic legitimacy, yet, because of consensus arrangements behind closed doors, it becomes part of our law through section 2 of the 1972 Act. It is imposed on us by our voluntary consent. It is therefore up to us and the people of this country to decide, by their voluntary consent and their freedom of choice, to get out of this, just as it was brought in by an Act of Parliament, without a referendum, in 1972.

[Wera Hobhouse]

Has the hon. Gentleman not shown a deep misunderstanding of how the European Union works through consensus and participatory democracy? Rather than one country dictating to another, that is the whole spirit of the European Union. No one country is sovereign, but decisions are taken in the round.

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[Sir William Cash]

I am sorry to disillusion the hon. Lady. I have been in this House for 33 years and I have been on the European Scrutiny Committee for 32 of them. I can absolutely assure her that what she says is simply not reflected by the practice of the European Union: the system is essentially undemocratic.

[Antoinette Sandbach]

Does my hon. Friend not feel that it is ironic that all 12,000 EU regulations will be imported into UK law under a process that will not have the detailed scrutiny of the House, because Henry VIII powers will be used to do it?

[Sir William Cash]

My hon. Friend might just reflect on the fact that there is no other way of transposing the legislation. I drafted the original repeal Bill, so I understand it very well. I did so before the referendum, in fact, because—I say this to my right hon. and learned Friend the Member for Rushcliffe—I believed we would win. In reality, once we have brought this into UK law, we will be able to have our own Bills—on agriculture, fisheries, customs, immigration, and various other parts of our constitutional arrangements—that can be properly discussed and amended.

[Paul Scully (Sutton and Cheam) (Con)]

Does my hon. Friend agree that every single one of the regulations coming into UK law is already abided by in this country and in this Parliament and are to its satisfaction at the moment?

[Sir William Cash]

Yes, the reality is that the Bill, if and when it goes through—and I believe it will—will incorporate into UK law EU legislation already consented to in the way that my hon. Friend mentions. We have agreed to them, but unfortunately they have not had the democratic legitimacy that will be conferred upon them when the Bill goes through.

I proceed now to the important question of the European Court of Justice. I made this point to the Prime Minister about 10 days ago and again to the Brexit Secretary last week. I wish to mention three pieces of case law that we inherited when the treaties that had accumulated after 1956 came upon us through section 2 of the 1972 Act. The first two are Van Gend en Loos in 1963 and Costa v. ENEL in 1964. In its judgment in the first case, the European Court asserted that

“the Community constitutes a new legal order in international law for whose benefit the states have limited their sovereign rights”.

In Costa v. ENEL, the Court ruled:

“The transfer by the States from their domestic legal system to the Community legal system of rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights”.

In 1970, in the Handelsgesellschaft case, the Court said that community law should take precedence even over the constitutional laws of member states, including basic entrenched laws relating to fundamental rights. It does not get more profound than that. Those decisions are mere assertions by the Court, yet under section 3 of the 1972 Act, we agree to abide by them.

[Mr Kenneth Clarke]

Will my hon. Friend agree that all treaties involve a pooling of sovereignty? We gave up immense sovereignty when we joined the United Nations and NATO, membership of which we would never dream of renouncing. The European Court exists to enforce treaty rights, including obligations on members. Does he recall probably the most important case there of modern times, when the British Government took the European Central Bank there to assert our treaty rights so that the City of London and our financial services industry could have a passport to financial services in the eurozone? It was worth thousands of jobs and showed the benefit of the Court in upholding treaty rights, including the most important treaty rights of the UK.

[Sir William Cash]

I also remember the case of Factortame, when Lord Bridge made it clear that by Parliament’s voluntary consent, given by virtue of the 1972 Act, an Act of Parliament—namely, the Merchant Shipping Act 1988—could be struck down. I am not trying to be disingenuous. The fact is that the 1972 Act empowers the European Court to strike down UK Acts of Parliament. That is what sovereignty is all about.

[Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)]

The hon. Gentleman talks about sovereignty and the pooling of sovereignty. Building on the point from the right hon. and learned Member for Rushcliffe (Mr Clarke), how does the hon. Gentleman think we will achieve new trade deals without ceding sovereignty, given that all trade deals—like EU membership, as the right hon. and learned Gentleman just pointed out—require the ceding of sovereignty?

[Sir William Cash]

I must say to the hon. Gentleman, and to my right hon. and learned Friend the Member for Rushcliffe, that there is a world of difference between that and having agreements by virtue of treaties in international law, which are actually matters on which it is possible to make decisions without being absorbed into and entangled in a legal order. That is the difference. It is the acquis communautaire and its principles that completely undermine the sovereignty of this House. I am prepared to concede that some people—

[Robert Neill (Bromley and Chislehurst) (Con)]

rose—

[Sir William Cash]

I am sure that my hon. Friend will be making this point, but I will try to anticipate it. There are circumstances in which the pooling of sovereignty by virtue of, for example, NATO is claimed to be a genuine pooling, but it is not, because it is possible to withdraw from it. The whole point about the European Communities Act is that it is not possible to withdraw from it except by repealing it in this manner. That is what we are doing now.

[Robert Neill]

My hon. Friend has strongly emphasised the importance of the sovereignty of the House, and I agree with him. Is it not all the more important that, as we leave, this sovereign House should have a meaningful vote on the terms on which we leave, rather than there being a “take it or leave it” vote at the end of the process? Is that not the ultimate expression of sovereignty, and will my hon. Friend therefore support it?

[Sir William Cash]

The answer is that I am supporting the outcome of the referendum, which, by virtue of our sovereign Acts of Parliament, we decided that we would pass over—

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[The Second Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

I thank the right hon. Gentleman for his point of order. We are also debating clause 1, which is fairly wide-ranging, so the hon. Member for Stone (Sir William Cash) is in order.

[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—

[Wera Hobhouse]

Will the hon. Gentleman give way?

[Sir William Cash]

I am afraid not, as I really must proceed.

None of these judge-made principles had any basis in the EU treaties, and the principle of the primacy of EU law is a judicial creation recently codified, and no more than that. However, because we have accepted judgments of the European Court under section 3 of the European Communities Act 1972, which we are going to repeal, we are saddled with this, and that is one of the things we are going to unshackle.

Interpretation is done in the European Court by what is known as the purposive approach. In fact, as has been well said, there are many different purposes that can be in conflict with one another, and the methods of interpretation applied are anything but satisfactory. I therefore say to those who want to advocate the European Court, whether in the transitional period or in general, “Beware of what you wish for,” because the European Court can create havoc in relation to our trading arrangements.

[Angus Brendan MacNeil]

If the hon. Gentleman is so opposed to the European Court of Justice, what is his dispute resolution mechanism going to be? Independent states need a dispute resolution mechanism where they cede sovereignty; they give some of their sovereignty and get some of somebody else’s sovereignty. What is that going to be?

[Sir William Cash]

rose—

[The Second Deputy Chairman]

Order. I been generous in allowing the hon. Gentleman to range over a number of subjects, but I gently remind him that there are a lot of speakers in this debate, so I am sure his list about the European Court of Justice is now a little shorter than it was before.

[Sir William Cash]

I shall conclude my remarks on this point. The European Court is seriously deficient in a whole range of matters. On the question put by the hon. Member for Na h-Eileanan an Iar (Angus Brendan MacNeil), the idea has been put forward by Martin Howe QC, and I have put it forward myself in the House, of a system of jurisdiction that would be more in the nature of an arbitration, where there might be, for example, retired European Court judges or whoever, who would adjudicate—but on a bilateral basis, not on the basis of a decision taken by the European Court. It is possible to come up with a solution, therefore, but I do recognise the problem.

We are now embarked upon a massive restoration of self-government in this country. This Bill is essential to achieve that, and should be passed without any of the obstacles and frustrating tactics being put in its way.

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

I rise to speak to amendment 386, which has cross-party support and which I tabled late last night. The Minister said that it was somehow introducing “chaos” into this process. With the greatest respect, after a fortnight in which we have seen the Foreign Secretary, the International Development Secretary, the former Defence Secretary, the current Defence Secretary and the Cabinet Secretary all subsumed in controversies, I think the Government are doing quite well on the chaos front without any help from me. Also, the idea that taking the exit date out and putting it into a different Bill would create chaos when, just five days ago, Ministers did not want it in any Bill at all, makes the Government’s argument look rather silly.

The amendment would require Parliament to vote on the terms of withdrawal through primary legislation before Brexit day. That would mean that exit day would be set in UK law not in this Bill but in a future Bill, either in the withdrawal agreement and implementation Bill that the Government announced yesterday or, if there is no deal at all, through an alternative Bill setting out the terms of departure and presumably whatever implementation plan would be needed in those circumstances.

The purpose of the amendment is not to dispute the Government’s intentions about the timing of exit day; it is simply to ensure that there is a proper parliamentary and democratic process before we get to that date. The central focus is not the date itself but a requirement on the Government to do as they have promised and set out a meaningful vote for Parliament in advance of that date. The amendment would also ensure that Parliament could properly respond, whatever the outcome of the Government’s negotiations, rather than being inadvertently timed out if things were to go badly wrong.

Yesterday, we learned from the Government that there would be a second Bill to implement the withdrawal agreement, and that is welcome. That was the subject of other amendments that the right hon. and learned Member for Beaconsfield (Mr Grieve) and I had tabled because we were concerned that Parliament should not give the Executive a blank cheque through this Bill on the implementation of a withdrawal Bill that had not yet happened. Rather less welcome was the Government’s admission that the legislation might not actually happen before Brexit day. Even less welcome was the Brexit Secretary’s admission that the vote on the withdrawal agreement would simply be a take-it-or-leave-it vote, and that therefore if the Government negotiate a bad deal, if they have no implementation plan in place or if other things go wrong along the way, Parliament would simply have to accept that or choose to have no deal at all.

Under the Government’s proposals, Brexit day would be embedded in primary legislation through this Bill, and it would therefore become legally and constitutionally possible for Ministers simply to let us drift towards exit day without Parliament being able to insist on any kind of implementation preparations or any kind of plan at all. Such a concentration of power in the hands of the Executive would be unacceptable. No legislature should ever accept that: certainly not this legislature right now when we were given a hung Parliament by the electorate less than six months ago; and certainly not our Parliament, whose sovereignty has been such a key issue throughout the debates on the referendum.

The amendment would strengthen the democratic process around Brexit and ensure that Parliament could vote on the terms of withdrawal, whether there was a deal or not, before exit day. It would implement the Government’s commitment to a meaningful parliamentary vote. If everything goes according to the Government’s plans and promises, if they get the timetable they want for the transition agreements being agreed in the early part of next year and the withdrawal plans agreed by the autumn, and if we get the kind of deal that the Government have promised, with all the benefits that it will bring, all that the amendment would do would hold the Government to that by implementing their intentions and their timetable. It would hold the Government to what the Brexit Secretary said yesterday was his primary plan for the timetable. It would hold Ministers to that plan on the face of the Bill. It would also prevent the Government from delaying the withdrawal agreement legislation beyond the withdrawal date. It links the timing of exit to the terms of exit in the parliamentary process. It would prevent Parliament from being timed out because it would give Parliament the final say. If the Government’s plans go wrong—I hope they will not—it also gives Parliament a say in how the country should respond. For example, if we end up with no deal at all, if we run out of time—I hope that will not happen—or if the whole thing goes belly up, it gives Parliament a role. It allows for a debate on whether the Government should go back to the negotiating table or just walk away. It allows for a debate about the timing of Brexit day. It allows Parliament to debate and decide, rather than just throwing up our hands and leaving it to Ministers—rather than just drifting along.

--- Later in debate ---

[Dominic Raab]

My right hon. and learned Friend is very tempting, but not at this moment.

I understand the point of amendment 357, which is to provide a default mechanism for transposing EU law where regulations have not been made under clause 7. I can equally see that my hon. Friend the Member for Bromley and Chislehurst is seeking to make default provision for any gaps that may exist in the law to avoid creating not just legal uncertainty, but any legal potholes that may strew the road that lies ahead. I hope that he does not mind me saying that he is, perhaps inadvertently, reinforcing the case for clause 7 because his concern appears to be with the risk that it might not being used comprehensively enough. I certainly share his concern to avoid legal cliff edges and legal potholes, for which I think he is trying to cater.

[Sir William Cash]

On the issue of potholes, will the Minister give way?

[Dominic Raab]

On the issue of potholes, I give way to my hon. Friend.

[Sir William Cash]

I mentioned to the Prime Minister during her statement a few days ago the bear trap that I can see coming up during the transitional period if we are not careful because of the manner in which the European Court operates by the purposive rule; I know my hon. Friend will understand. During the transitional period, when we are faced with a court operating under that rule and not by precedent, we could end up with the European Court dictating to us the basis upon which we would be operating during that period. Does my hon. Friend agree?

[Dominic Raab]

The Chair of the European Scrutiny Committee eloquently makes his powerful point. We need to avoid bear traps, cliff edges and potholes, and that is what this Bill does. That is a common goal that we all ought to be trying to pursue, on both sides of the House—whether we voted to leave or remain. I am not convinced that the amendment of the Chair of the Justice Committee would achieve that aim. Despite his best intentions and his rather ingenious drafting, I fear that the amendment would, in practice, create considerably more legal uncertainty, not less.

--- Later in debate ---

[Joanna Cherry]

My amendment 137 seeks to ensure that:

“When interpreting retained EU law after exit day a court or tribunal shall pay due regard to any relevant decision of the European Court.”

The Minister questioned the term “due regard”, but it is not unknown to international law. The Lugano Convention on the mutual recognition on enforcement of judgments, to which EU and non-EU states are signatories, talks about paying “due account”, but I have followed the recommendation of the organisation Justice that it is clearer and better English to talk about paying “due regard”. Under the Human Rights Act 1998, we have a duty to take account of decisions of the Court of Justice, so paying “due regard” to taking account of such decisions is not a phrase unknown.

This amendment is not a Trojan horse designed to continue references after Brexit, and I say that as someone who does not want Brexit to happen. It is designed to create certainty for individuals, businesses and litigants, and also for the judiciary. It would leave it open to British courts to disagree with the Court of Justice’s interpretation, even if its case law was relevant to the case. It would not—as the Government’s current draft does—give an unfettered, politically controversial discretion to consider or ignore Court of Justice decisions as our courts saw fit.

The test set out in my amendment has three advantages. First, it would create legal certainty for individuals and businesses. Secondly, it would provide political cover for the courts. Thirdly, it seems to fit with the preference of the judiciary, who want a clear instruction. In recent evidence to the House of Lords Constitution Committee, Lady Hale, the new President of the Supreme Court, said:

“It should be made plain in statute what authority or lack of authority, or weight or lack of weight, is to be given to the decisions of the Court of Justice of the European Union after we have left, in relation both to matters that arose before we left and, more importantly, to matters after we leave. That is not something we”—

she means “we, the judges”—

“would like to have to make up for ourselves, obviously, because it is very much a political question, and we would like statute to tell us the answer.”

In my submission, under my amendment, statute would tell the judges the answer.

That is not just my view. The Institute for Government looked at the various options and concluded that the wording that I now propose would license courts in the UK to refer to the Court of Justice’s reasoning in future judgments without making those Court of Justice judgments binding on the UK courts—

[Sir William Cash]

rose—

[Joanna Cherry]

I will just finish my point, then I will give way to the hon. Gentleman.

The Institute for Government took the view that that approach was compatible with the objectives set out in the Government’s White Paper on Brexit and in the repeal Bill.

[Sir William Cash]

I just wanted to refer to chapter 12 of the book by Lord Bingham, entitled “The Rule of Law”, which I am sure the hon. and learned Lady is aware of, in which he criticises Lady Hale for her view on the relationship between Parliament and the judges. Is she aware of that?

[Joanna Cherry]

I am familiar with that book, but I do not think that it has any relevance to what I am saying at the moment. I remind the hon. Gentleman the Lady Hale is the President of the Supreme Court of the United Kingdom, and she has made the point that what she and her fellow judges require from the Government and the House is clarity in the directions as to how they are to treat the future jurisprudence of the Court of Justice of the European Union, because if the guidance is not clear, they will come under the sort of political attack that I am sure the hon. Gentleman, who is a great supporter of the British constitution, would abhor, as I do—although I might actually prefer a Scottish constitution.

As I said earlier, this amendment is not a Trojan horse. It is the result of careful consideration by the organisation Justice and by the Institute for Government. It also has the support of the TUC and, I am delighted to say, the Labour party, as well as the Equality and Human Rights Commission and the Fawcett Society. One reason the Equality and Human Rights Commission is so keen on this amendment is because it is also important for rights protections. It is important to remember that EU law is largely about the rights of individuals. The Government’s position paper, published in the summer, seemed to imagine that EU law was all about disputes between the United Kingdom and the EU, but it is not. Most people who make references to the Court of Justice do so in the determination of their individual rights or their rights as a business.

--- Later in debate ---

[Sir Oliver Letwin]

The hon. Gentleman did not allow me to intervene on him, but let me say now that, unfortunately, his point is wholly irrelevant to clause 6; it relates to the transition which will be covered in another Bill. My concern is about the continuing state of UK law following exit. This is not going to be resolved by the Government producing a White Paper. It has to be resolved by clause 6 being drafted in a way that creates the very legal certainty that the Government so admirably wish to create, and which they at present so abundantly fail to do.

[Sir William Cash]

My right hon. Friend is asking some very interesting questions, but that does not necessarily mean—he, or indeed any of us in this Chamber, not being a judge—that he is drawing the right conclusions. He is pointing to several questions that need to be raised, however, although he has not mentioned that clause 5(1) states:

“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day,”

and that must include this Bill.

Furthermore, my right hon. Friend has not quite taken on board what the Solicitor General said with respect to our application of the stare decisis method of interpretation, which the Supreme Court will be obliged to apply after exit day. So he is asking some interesting questions, but I do not think we can necessarily draw conclusions from them.

[Sir Oliver Letwin]

I am grateful to my hon. Friend for his comments, and I am very happy to leave it to the Government to draw the conclusions and answer the questions in due course. I do not think clause 5(1) helps at all, however, because my hon. Friend is right that it excludes the possibility of subsequent enactments being subject to the principle of supremacy, but in clause 5(2) it is equally clear that, so far as the retained law is concerned, the principle of supremacy remains, and therefore there may be judgments in the future that already existing law, where there is judged to be a conflict between an Act of Parliament and an ECJ ruling, should have the result that the ECJ ruling triumphs over the Act of Parliament. That is a perfectly possible and sensible position to adopt. It is not one my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) and I would like to see, and I doubt that my hon. Friend the Member for Stone (Sir William Cash) would like to see it, but it is nevertheless a perfectly tolerable position—and it then needs to be carried over for the Supreme Court just as much.

My point remains, however, and it is a simple one: that if the Bill is trying to achieve a hierarchy here, it needs to state what the hierarchy is, and in stating that hierarchy, it needs to make it clear who governs whom. At the moment, the Bill does not do that.

European Union (Withdrawal) Bill

William Cash Excerpts

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

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

rose—

[Sir William Cash (Stone) (Con)]

On a point of order, Dame Rosie. On the yesterday’s selection list—and, in part, today’s—there are some extremely helpful references to the page numbers of this enormous wodge of amendments. Would it be possible for the Clerks to be good enough to put the page numbers on the selection list for easy reference, because it is sometimes quite difficult to find the amendments at short notice?

[The Second Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

I will certainly bring that to the attention of the Public Bill Office and see what we can do to help.

New Clause 2

Retaining Enhanced Protection

“Regulations provided for by Acts of Parliament other than this Act may not be used by Ministers of the Crown to amend or modify retained EU law in the following areas—

(a) employment entitlement, rights and protections;

(b) equality entitlements, rights and protections;

(c) health and safety entitlement, rights and protections;

(d) fundamental rights as defined in the EU Charter of Fundamental Rights.”—(Matthew Pennycook.)

This new clause would prevent delegated powers from other Acts being used to alter workplace protections, equality provisions, health and safety regulations or fundamental rights.

Brought up, and read the First time.

--- Later in debate ---

[Tom Brake (Carshalton and Wallington) (LD)]

rose—

[Sir William Cash]

rose—

[Matthew Pennycook]

I will make a little more progress if that is all right.

Let me remind the House of the sentiments on the Government Benches when it comes to workers’ rights. Throughout the referendum, prominent leavers drew attention to what they claimed was the high cost of EU employment regulations, including those such as the working time directive and the temporary agency work directive. Prominent members of the Cabinet are on record as having called for workers’ rights to be removed. For example, the Foreign Secretary has written that we need

“to root out the nonsense of the social chapter—the working time directive and the atypical work directive and other job-destroying regulations.”

During the referendum, on 18 May 2016, the then Minister for Employment, the right hon. Member for Witham (Priti Patel), went so far as to call for the UK to

“halve the burdens of EU social and employment legislation”

in the event of Brexit. The newest member of the Brexit ministerial team—Lord Callanan—has openly called for the scrapping of the working time directive, the temporary agency work directive, the pregnant workers directive and

“all the other barriers to actually employing people.”

Just this week, the hon. Member for North East Somerset (Mr Rees-Mogg) made a speech in London calling for, among other things, deregulation. It was retweeted and then hastily deleted, as we heard yesterday, by the Department for International Trade.

--- Later in debate ---

[Chuka Umunna (Streatham) (Lab)]

rose—

[Sir William Cash]

rose—

[Matthew Pennycook]

I am going to make some progress.

It may be the case that pragmatism and electoral appeal trump ideology, but there is no guarantee, and that is the point. We should not take risks with rights, standards and protections that have been underpinned by EU law. Hard-won employment entitlements, along with entitlements relating to the environment, health and safety, equalities and consumer rights, should not be vulnerable to steady erosion by means of secondary legislation outside of the powers contained in this Bill. In future, Ministers should be able to change the workers’ rights and other rights that came from the EU only through primary legislation, with a full debate in Parliament. On that basis, I urge hon. Members on both sides of the House to support new clause 58.

--- Later in debate ---

[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.

--- Later in debate ---

The other argument sometimes used concerns the jurisdiction of the ECJ. Of course, hon. Members will know that the EEA and EFTA are under the jurisdiction of the EFTA arbitration court. If the UK were to join the court, it would give the court considerable extra clout, which would help to rebalance the relationship with the ECJ. The court does, of course, take much steer and guidance from the ECJ, but it is not slavishly attached to it, and if the UK were to be in it, it would provide a significant degree of autonomy.

[Sir William Cash]

I would be grateful if the hon. Gentleman could explain how often, and in what circumstances, the arbitration court has departed from the decision making and precedence of the ECJ.

[Stephen Kinnock]

This is a clear case of a “before and after” conversation. The court would be substantially altered were the UK to have judges on it. It would be a category shift in the role of the court. It would require negotiation, of course, but I am offering an opportunity to square the circle in terms of the many contrasts, conflicts and competing agendas around the delivery of a Brexit that works for the whole country and delivers for the millions of people who voted in the referendum and who are not ideologues on one side or the other. They want this Parliament to get on with the job and to deliver a Brexit that works for the whole country, and indeed helps to reunite our country. In that spirit, new clause 22 is so important and offers so much.

There is much conversation about models. The Canada model does not include services, while the Ukraine model is new and untested. The EEA-EFTA model is well established and well understood. It would give our business community and our economy the certainty that they so desperately need.

--- Later in debate ---

We must not think of this in purely legalistic terms. We need to think about what it will do to the parts of the country that depend most on trade with our European partners. If we have no deal, 50% of our manufacturing output will be at risk. People will say that that is okay because 80% of our economy consists of services. To them I say, “Go to the high street in a manufacturing town, and ask the shopkeepers on that high street whether they care whether the local factory shuts down. Ask the woman who cuts the hair of the people who work in the factory in my constituency whether they care if manufacturing is put at risk.” Of course they do, because the split between services and manufacturing is just an accounting matter. What really matter are local economies, and whether we should pull the rug from under them by deleting manufacturing industry from this country once again. Let me remind Ministers that some of us lived through the 1980s and 1990s, and I worry that Brexit will finish what Thatcher started.

[Sir William Cash]

The two “retained enhanced protection” new clauses tabled by the Leader of the Opposition are inconsistent. The hon. Member for Greenwich and Woolwich (Matthew Pennycook) did not refer in his speech to the fundamental rights as being part of new clause 2 itself. When I compared the two new clauses, I saw considerable inconsistencies. For example, new clause 58, entitled “Retaining Enhanced Protection (No. 2)”, includes the word “repeal”, and the words “environmental standards and protection” are included in new clause 58 but not in new clause 2. That presents a problem, because, as far as I understand the position, it is possible to debate and vote only on the new clauses in question. Which will Members vote on, if they do vote? I think it important to put that on the record, because there are serious inconsistencies between the two.

There has been a great deal of metaphysical discussion about the whole question of retained law. Let me say to those who have not had the benefit of doing so that it is quite useful to read pages 52 to 58 of the House of Commons briefing. It saves a lot of time, including debating time.

[Jack Dromey (Birmingham, Erdington) (Lab)]

The Government say, “Trust us, workers’ rights are safe.” As someone who has fought for workers’ rights for 40 years, rising from being a lay member to ultimately being elected deputy general secretary of the Transport and General Workers Union, I have seen often implacable hostility from Tory Governments towards workers and their trade unions in every decade since we joined the EU, ranging from when we were described in the 1980s as the “enemy within” to, more recently, the Trade Union Bill 2015.

In the referendum campaign, what the wide-eyed Brexiteers now driving the Government would like to see in our country could not have been clearer. The right hon. Member for Chingford and Woodford Green (Mr Duncan Smith) pledged to “whittle away” the regulation “burden” with its

“intrusions into the daily life of citizens.”

Lord Lawson called for a “massive” regulatory cull. The ex-International Development Secretary, the right hon. Member for Witham (Priti Patel), said:

“If we could just halve…the EU social and employment legislation we could deliver a £4.3 billion boost to the economy.”

Indeed, the previous Prime Minister talked about killing off the safety culture. Anyone who had stood outside Wembley stadium with 1,000 workers mourning the death of somebody who had just been crushed at work would not talk about killing off the safety culture. And the Foreign Secretary said during the Brexit campaign that the weight of employment legislation is now “back-breaking” and that his preferred model is to scrap the social charter.

I do not doubt for one moment that there are truly honourable Members on the Conservative Benches who mean it when they say that workers’ rights will be safe; the question is how we safeguard that in the next stages.

Let me tell just one story showing why this matters—why European Union law mattered to British workers, and, crucially, why it matters that we get it right to protect workers’ rights as we leave the EU. In 1977 the EU legislated for the acquired rights directive, and our Government had to introduce it into domestic law. Eventually it was introduced, with gritted teeth, in 1983, with William van Straubenzee saying in the House that he did so “with the utmost reluctance.” But the Tories then excluded the public sector; 10 million public servants were excluded for 10 years. The price that was paid, as we saw mass privatisation throughout the 1980s, was catastrophic for workers.

I remember the first example I dealt with, at the Fire Training College at Moreton-in-Marsh: 120 predominantly women housekeepers and catering workers had their pay cut by a third and the numbers employed cut by a half, holiday entitlement cut, and sickness entitlements cut. The only humorous side of an otherwise sad story was that the managing director of Grand Met Catering which won the contract was—I kid thee not—none other than a Mr Dick Turpin.

These situations went on for year after year. Let me give another example. My uncle Mick, God rest his soul, was a street-cleaner. He lived with me when I was a kid. He worked for Brent Council. I will never forget when Brent street-cleaners and refuse collectors were facing privatisation. During a meeting in their canteen one morning, the street-cleaners sat together, many of them disabled workers, in fear of what would happen because they knew that the bids coming in would result in a third of the workforce going, and they might be the most likely to go. I remember that my Uncle Mick’s good friend—a single man living alone—collapsed in tears afterwards at the thought of what loomed before him. There was 10 years of that throughout the 1980s.

I then took the case of the Eastbourne dustmen to the European Court of Justice and the European Commission, and we won. Thanks to EU law, our Government were forced to extend TUPE to cover 10 million public servants. It is vital in the next stages that there can never be any going back.

Time does not permit me to talk about other examples of implacable hostility: GCHQ, the refusal to sign the social charter, the national minimum wage, employment tribunal fees and the Trade Union Bill.

In conclusion, I stress again that I draw a distinction between the many Government Members who mean what they say and those who are in the driving seat, taking us ever closer to the cliff edge. When they say, “Trust us,” say no. That is why my hon. Friend the Member for Greenwich and Woolwich (Matthew Pennycook) was right to table new clauses that would safeguard workers’ rights as best we can. We cannot delegate to future Conservative Governments—if they still exist—the ability to change workers’ rights by way of Henry VIII powers, so that they can say, “Off with their heads.” On each and every occasion, as my hon. Friend argued, workers deserve the enhanced protection of any changes to their rights after we leave the European Union coming back to Parliament for debate, and changes being made only by an Act of Parliament. Is that ideal from my point of view? No, but it is at least a damn sight better than relying on Henry VIII powers in the hands of the Foreign Secretary—or who knows who?—at the next stage.

European Union (Withdrawal) Bill

William Cash Excerpts

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

[Mr Leslie]

People will have many legitimate anxieties. We cannot simply erase a provision that currently has legal effect and provides legal protections without a statement from Ministers about the effect that that could have in law.

[Sir William Cash (Stone) (Con)]

rose—

[Mr Mark Harper (Forest of Dean) (Con)]

rose—

[Mr Leslie]

What a choice. I will give way to the hon. Member for Stone (Sir William Cash).

[Sir William Cash]

One of the most fundamental questions is the notion of disapplying Acts of Parliament and the supremacy that the European Court of Justice asserts over our parliamentary Acts, which the amendments would effectively transfer to the Supreme Court. As for child protection, I was in part responsible for the Protection of Children Act 1978 and I presented the International Development (Gender Equality) Act 2014, which are intrinsic Westminster Acts. We do not need the charter to do such things; we can do them ourselves.

[Mr Leslie]

In no way would I wish to diminish the hon. Gentleman’s contribution to child protection and ensuring that legislation is as good as it possibly can be, but we currently have that extra level of protection that the charter of fundamental rights provides. New clause 16 simply asks for an analysis from Ministers of what would happen to child protection and to many other rights if we delete the charter from our current set of legal protections.

--- Later in debate ---

[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.

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[Paul Blomfield (Sheffield Central) (Lab)]

It is a genuine pleasure to follow the right hon. and learned Member for Beaconsfield (Mr Grieve), who made his case extremely well and very convincingly—it is supported by many hon. Members on both sides of Committee.

I rise to speak to amendment 46, which is designed to ensure that we keep the charter of fundamental rights in EU retained law; amendment 335, which would maintain the principles of the Francovich ruling after exit day for pre-Brexit cases; amendments 285, 286 and 287, which make provision for existing arrangements to continue during a transitional period; and, finally, amendment 336, which makes provision for retaining existing principles of EU law within domestic law until the end of the transitional arrangements.

[Sir William Cash]

Will the hon. Gentleman give way?

[Paul Blomfield]

I think I could probably get a few more sentences into my stride before taking an intervention, but I certainly anticipate that I will take interventions from the hon. Gentleman.

The debate raises fundamental principles about the transposition of EU law and the important role of this House in holding the Government to account for their commitments. Last week, the focus of the debate was on the Government’s attempt to unravel the Prime Minister’s pledges on the transitional arrangements in her Florence speech, by the imposition of a defined exit day for all purposes. The Minister, the hon. Member for Esher and Walton (Dominic Raab), made a good attempt to defend the indefensible and not commit to the application of the jurisdiction of the Court of Justice of the European Union throughout the transitional period; that was not the Government’s line at the time. It would have been helpful if No. 10 had said a week ago what it said this morning, namely that the Court of Justice will have jurisdiction throughout the transitional period. If that had happened, the Minister would not have been left in such a mess.

--- Later in debate ---

We recognise that steps will be required to make the charter operable in domestic law, and there has been some debate on that already. There is no reason why this House could not direct courts in the UK to interpret retained law by taking into account Luxembourg’s interpretations, such as is the case with the Human Rights Act and the ECHR in the Strasbourg Court. That matters, and I will explain why the inclusion of the charter in retained EU law is critical to maintaining and upholding those rights.

[Sir William Cash]

Is the hon. Gentleman about to move on to explain why Tony Blair and Lord Goldsmith fought so hard to obtain protocol 36—I think it was that one—in the Lisbon treaty, which the Conservative party opposed? At the same time as advancing the charter of fundamental rights, will he explain why we cannot pass such legislation as we wish to in this place?

[Paul Blomfield]

I was not about to go on to that, but clearly I am now. The hon. Gentleman knows that the charter was not binding when it was first adopted in 2000. It was made legally binding by the Lisbon treaty of 2007, which entered into force in 2009. It has, as the right hon. and learned Member for Beaconsfield pointed out, increased in significance, and the rights that it contains have become more visible and correspondingly more effective. Labour supported the charter then, and we support it now, because it has enhanced and improved European human rights protection, and by doing so it has significantly developed the quality of human rights protection in the UK. The wider point that the hon. Member for Stone (Sir William Cash) makes is not relevant to the issue under discussion.

--- Later in debate ---

[Paul Blomfield]

We are talking about statute law, and about rights such as the one on which the right hon. Gentleman’s friend and colleague, the Secretary of State for Exiting the European Union, relied. I think that that point is clear.

Returning to the comparison of the charter with the Human Rights Act, as well as the wider class of applicants for which it provides, it allows for stronger remedies. If any national court finds that any national law is incompatible with a directly effective provision of the charter, it must disapply contravening primary legislation or quash secondary legislation. We have exercised some of the arguments around that issue, but that is much stronger than a notification of incompatibility. We should be in no doubt that losing the charter means losing rights.

[Sir William Cash]

Has the hon. Gentleman considered the impact in relation to alleged and actual terrorists on the question of national security and case law? Many people who would like those individuals to be deported would find that extremely difficult under the principles of the charter because of the provisions relating to the protection of family life, which have been badly abused.

[Paul Blomfield]

In his keenness to tackle the argument, I think that the hon. Gentleman has missed the point. That has nothing to do with the charter.

Let me turn to a separate but related point on schedule 1, which states:

“There is no right of action in domestic law”

post exit

“based on a failure to comply”

with EU general principles. The schedule also prevents courts from ruling that a particular Act was “unlawful” or from quashing any action on the basis that it was not compatible with the general principles. Damages are not allowed, so general principles are rendered irrelevant, which also reduces rights. Our amendment 336 seeks to address that by retaining the existing principles of EU law regardless of whether they originated in case law, treaties, EU legislation or directives. The date on which that retention would end would be the end of a transitional period.

Let me turn to our amendment 335 to schedule 1 on the Francovich rule. I shall be brief because others have tabled similar amendments, which we support, and I want to give them a full opportunity to make their case without my anticipating what they are going to say.

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[Dominic Raab]

I am not sure where this devilish plot has come from—I have made no such suggestion; I was simply pointing out to my right hon. and learned Friend that, as my hon. Friend the Member for Harwich and North Essex, the Chair of the Public Administration and Constitutional Affairs Committee, mentioned earlier, some of the amendments run the risk of creating more, not less, uncertainty, notwithstanding their perfectly laudable and genuine aims.

If my right hon. and learned Friend’s amendment were passed, it would no longer be clear how common law rules would interact with a particular provision of retained EU law in the event of a conflict between the two. Across a range of issues, from animal welfare to competition law, the concern is that such an approach would create uncertainty about the legal position of citizens and businesses. I am sure that this was not his intention. I am not looking for devilish plots on either side of the House, but I do fear that that would be the practical reality.

[Sir William Cash]

On the subject of devilish plots and “The Screwtape Letters”, may I refer my hon. Friend to chapter 12 of Lord Bingham’s magisterial work, “The Rule of Law and the Sovereignty of Parliament?”? In this context, its reference to the rule of law is highly relevant, simply because it refers, indirectly or directly, to the issue of the constitutional supremacy of law making and the construction placed upon it by the courts themselves. On that issue, the rule of law does, I think, have considerable salience.

[Dominic Raab]

My hon. Friend makes a considered and thoughtful point. Given the changes we are making—for the purposes of greater certainty and clarity—I respectfully suggest to my right hon. and learned Friend the Member for Beaconsfield and other hon. Members across the House that it is worth having some clarity and certainty on this point.

I turn now to amendments 285 and 286. We discussed similar amendments from the leader of the Labour party on day one of the Committee in relation to clause 6, and for the same reasons given during that debate, we cannot support them. I note again what the Prime Minister said in her Florence speech:

“The United Kingdom will cease to be a member of the European Union on the 29th March 2019”.

I will not speculate on the contents of the withdrawal agreement. The Government will do whatever is necessary to prepare for our exit and have already made it clear that separate primary legislation will be brought forward to implement the terms of the withdrawal agreement and any implementation period. With that in mind, the amendments would pre-empt and prejudge the outcome of the negotiations and introduce a straitjacket of inflexibility for the duration of any implementation period. We are all in the House committed to securing the very best deal with our EU friends and partners, and I respectfully suggest that the amendments would undermine that objective. I urge the leader of the Labour party not to press them.

--- Later in debate ---

It was reported just last night that a distinguished British jurist who had been put up to be a judge at the International Court of Justice has had to withdraw from the race, because other countries in the UN are keener on somebody from another country. Even as a Scottish nationalist, I can see that that is a setback for the United Kingdom’s world standing. For so long as Scotland remains part of the United Kingdom, I would like it to be an outward-looking country—indeed, I would very much like the rest of the UK to continue to be outward looking even after Scotland leaves the UK —but that sort of thing does not inspire confidence in the British Government’s adherence to international human rights norms. I invite the Government to think again, and I look forward to hearing their response to several questions that I have raised this afternoon, the most important of which relates to the statement by the Prime Minister’s spokesperson, but equally as important is the situation of Northern Ireland.

[Sir William Cash]

As I have already suggested, both Tony Blair and Lord Goldsmith strongly resisted the charter of fundamental rights being made part of UK law, as made clear by my European Scrutiny Committee in its report of April 2014, which anyone can read, so it is impossible to understand why the Labour party has now taken retaining the charter as its position—although as someone said to Alice said in “Through the Looking Glass”:

“I’ve believed as many as six impossible things before breakfast.”

The Conservative party categorically ruled out bringing the charter into UK law in our manifesto, and we also voted against the Lisbon treaty. That included the charter, which the European Court of Justice has since ruled did apply to us, because it includes the application of EU law as applied by the European Court of Justice, including assertions of constitutional supremacy over our Acts of Parliament and the vicarious power to disapply those Acts. An example of that—I mentioned this in my exchange with my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve)—is the striking down by the House of Lords of the Merchant Shipping Act 1988 in the Factortame case. For all those reasons, it would be unconscionable to include the charter in this Bill.

With great respect to those who have tabled amendments, the European Court of Justice’s interpretation and the case law, which is so greatly liable to EU jurisprudential elasticity by the Court itself, would thereby enable the UK Supreme Court to disapply Acts of Parliament. That is absolutely fundamental, and it would also be completely undemocratic. It has already happened under the present aegis in the case of the 1988 Act, but it would happen more and more frequently, and we would simply have to accept it, because it is not a question of opinion; it is a question of law and of fact.

[Mr Jenkin]

It is for the European Court of Justice to continue to interpret what the charter of fundamental rights actually means within the European Union, so if the charter was incorporated into our law, what relationship does my hon. Friend think would exist between our Supreme Court and the interpretations that would continue to be developed in the European Union?

[Sir William Cash]

The Supreme Court would be applying the European interpretation in that context, and I simply say that it will involve disapplication of law. It is a matter not of assertion but of fact and law that that is precisely what will happen.

I urge my right hon. and learned Friend the Member for Beaconsfield and others not to press their amendments on the charter, because to do so would be totally unacceptable. I refer to what I have alluded to already: the principle set out by Lord Justice Bingham in chapter 12 of his magisterial book on “The Rule of Law and the Sovereignty of Parliament?”, in which he publicly criticised the attitude of Baroness Hale, now President of the Supreme Court, and Lord Hope of Craighead in suggesting that the courts have constitutional authority, as against an Act of Parliament. With respect to the whole question of parliamentary sovereignty and the issue of the courts, he says that various remarks had been made but:

“No authority was cited to support them, and no detailed reasons were given.

I cannot for my part accept that my colleagues’ observations are correct... To my mind, it has been convincingly shown”—

by Professor Goldsworthy, one of the greatest authorities on this subject—

“that the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot by themselves change it… What is at stake”—

said Professor Goldsworthy—

“is the location of ultimate decision-making authority… If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe on unwritten rights, they would be claiming that ultimate authority for themselves.”

Moreover, Lord Bingham went on to say that they would then be transferring the rights of Parliament to judges:

“It would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum.”

With some irony, the Bingham Centre for the Rule of Law has put some of the contrary arguments.

[Sir Edward Leigh (Gainsborough) (Con)]

My hon. Friend is making some excellent points about parliamentary sovereignty, but I am not sure the point has yet been made that there has been a cosy consensus in this debate so far that everything about European human rights is wonderful and that we want to transfer those European human rights into our own law. Actually, many of us think that the advancement of European so-called human rights has been to the detriment of the rights of other people, particularly religious people, to find their own space, because European equality laws trump all other laws. When we regain parliamentary sovereignty, in this House and through our democracy, we can start asserting real human rights.

--- 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—

[Wera Hobhouse]

Will the hon. Gentleman give way?

[Sir William Cash]

No, I will not, because, as the Chair will appreciate, I have taken a lot of interventions, as I did last time, when I took six or eight. It is impossible to get the arguments out in reply to my right hon. and learned Friend the Member for Beaconsfield, with whom I have been discussing this for an extremely long time—for the best part of 20 years—if I am constrained in this way, so I am not going to take any further interventions.

What lies behind these amendments is not only the charter itself, but the whole role of judicial interpretation and jurisprudence in its application to the UK; by virtue of the way in which the amendments would apply, the Supreme Court would inherit the power to invalidate and disapply Acts of Parliament. This is a matter of the gravest constitutional significance and it goes to the heart of the stability of this country and its rule of law. In turn, that goes to the heart of our democratic system and the right of the British people to govern themselves, whichever party they come from, in respect of how they vote in free elections, exercising their freedom of choice as to whom they decide to govern them until the next general election.

All this is intrinsically bound up with the claimed virtues of the European Court itself—it is not impartial. As I said in the previous debate, when the European Court adjudicated on the Van Gend en Loos case and Costa v. ENEL in the 1960s and early 1970s, and the Internationale Handelsgesellschaft case, it was doing so on its own initiative, without any basis in EU treaties, until the Lisbon treaty, which we on this side of the House, including my right hon. and learned Friend, opposed. That is what did this. We opposed it. He opposed it. I simply make that point to put it on the record.

This Lisbon treaty, as the European Scrutiny Committee also demonstrated, was the Giscard d’Estaing proposal for a European constitution by any other name. It is part and parcel of the other characteristic of the European Court, which is the drive towards political integration and its interpretation of law by the purposive rule, even when the wording in question is neither obscure nor ambiguous. Furthermore, many different purposes may, from time to time, be in conflict with one another, but the driving force for them is the integrationist road map from which it never deviates and never will. It is the ultimate engineer of European integration. Equally, it has adopted a method of interpretation that neutralises the principle of the conferral of powers that were meant to be limited under articles 4 and 5 of the treaty on European Union. By doing so, it has extended the range and effect of European law by leaps and bounds. With that comes the extensions of competence, which in turn are everlastingly overarching and limitless. The European Court has never once annulled a general EU legislative act, except on one occasion, and when it did so, it was re-enacted almost immediately. It is permanently on the march in favour of political integration and by any standard is therefore more a political than judicial court.

--- 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.

--- Later in debate ---

[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—

--- Later in debate ---

[Sir William Cash]

For the sake of the record, I would be grateful to my right hon. Friend—I nearly said “learned” because he is doing such a great job—if he also looked at paragraph 5, which, in terms of interpretation, does relate to schedule 1 as well, and so cannot be left out.

[Sir Oliver Letwin]

Oddly enough, I was going to say that, so I will not do so now. I agree with that. While we are at it, I hope that the Solicitor General will also tell us that paragraph 3(1) of schedule 1 will be similarly adjusted, because, clearly, we need the same principle to apply to a private right of action as applies to the quashing of an enactment.

Provided that those changes are made, I think that the basic articulation of clause 5 and schedule 1, unlike clause 6, is in reasonably good shape and therefore I hope that, as well as the very splendid offer of a full analysis of the rights, we will get a very clear statement from the Minister about the kind of amendments that will be brought forward on Report. That would certainly make me more than willing to support the Government tonight.

--- Later in debate ---

[Sir William Cash]

On amendment 10, I am sure that my hon. Friend observed what was said about the absence of reference to paragraph 5 of schedule 1, which deals specifically with the question of interpretation. Does he also agree that one of the greatest dangers is the idea that the Supreme Court, of its own volition after we have left, will be able to disapply any legislation? Does he not agree that that is a fundamental principle, too?

[Robert Neill]

I think the most important principle is legal certainty. It may well be very sensible for us to start to remove, as soon as possible, bits of retained law that we do not want to keep, but it seems to me to be equally implausible to retain something without following through on the logic from whence it comes. I recognise my hon. Friend’s point, but the issue, as my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) pointed out, is one of the Bill’s own making. I hope that the Government will table an amendment—before the Report stage—to remove these internal contradictions sooner rather than later. I think we all want to be in the same place, but justice requires not only independence of the courts but a proper framework in which it can operate. Above all, it requires certainty. The Bill as it stands runs the risk of creating uncertainty, and that cannot be in anybody’s interest.

I have been struck by the tone of the responses we have had from the Government Front Bench so far, but it is really important to stress that this is a matter of very significant principle. We wish to give the Government the best possible fair wind. I have no doubt whatever about the intentions, credit and integrity of the Solicitor General, who will reply to the debate shortly. What he says will weigh very heavily with many of us. I am sure he will do something that is constructive and helpful, and will help to improve the Bill. This is an important point that I wish to put on the record, because if there is not something of that kind, we will have to return to the issue as the Bill progresses. I hope that that will not be necessary. I believe it will not be necessary, but it is important to stress how fundamentally significant it is. These matters may seem technical, but they are vital to the underpinning of a sound piece of proposed legislation going forward.

--- Later in debate ---

[The Solicitor General]

With respect to my right hon. and learned Friend, I have talked in detail about the various paragraphs of schedule 1, and I have been looking in particular at paragraph 3. In response to the clarifications sought by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), I made sure that all of paragraph 3 would be the subject of that clarification and the tabling of an amendment. Neither my right hon. and learned Friend the Member for Rushcliffe nor I are fans of having our cake and eating it when it comes to EU withdrawal and, with respect, I am offering something substantial here that will certainly satisfy him this evening.

[Sir William Cash]

rose—

[Lady Hermon]

rose—

[The Solicitor General]

I will give way to my hon. Friend.

[Sir William Cash]

I hope that the Solicitor General will be good enough to look at the deficiencies in amendment 10. Paragraph 5 of schedule 1 deals with interpretation and therefore also applies to paragraphs 1 to 3. As he quite rightly said before he took the intervention, the matter is being scrutinised. As Chairman of the European Scrutiny Committee, we have it on our agenda, and we are scrutinising all such matters and will continue to do so, because we want to be sure that this House is not overridden by disapplication.

[The Solicitor General]

I am grateful to my hon. Friend. I am always interested in looking at how one particular paragraph of a schedule applies to another, but I am particularly interested in paragraph 3.

European Union (Withdrawal) Bill

William Cash Excerpts

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

[Mr Baron]

rose—

[Sir William Cash (Stone) (Con)]

rose—

--- Later in debate ---

[Mr Clarke]

I agree entirely. My right hon. Friend eloquently underlines the point that the right hon. Member for Normanton, Pontefract and Castleford raised and that I am trying to make. We must have a meaningful vote before the final trade deal—indeed, the whole deal—is agreed by the Government.

Let me try to lower the temperature by going back, as I rarely do, to reminisce for a moment.

[Sir William Cash]

My right hon. and learned Friend and, I believe, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), both concede that amendment 7, at this crucial moment, is defective and would not work for a variety of reasons. I have indulged what my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) has said about scrutiny and responsibility and the rest, but does he agree that it is not appropriate to press such an amendment to a vote when, in fact, it would make a nonsense of itself? It would be a meaningless vote about a meaningful vote.

[Mr Clarke]

No doubt my hon. Friend will catch your eye, Dame Rosie, when he will be able to explain why he thinks the amendment is technically defective, but this is the kind of argument we have had against every proposition that has been put forward throughout the passage of the Bill. I heard the Prime Minister personally promise us a meaningful vote and then go on to explain how the Bill would have to be used to make statutory instruments; so we are talking about the very wide powers in the Bill being used probably even before the end of the article 50 period—I think that is what she said. This amendment would prevent that; it would prevent those powers from being used until a statute has been passed by this House confirming its approval and also giving legal effect to whatever final agreement has been arrived at. I bow to my hon. Friend’s legal skill—he was indeed in parliamentary law when he practised—but I cannot for the life of me see why this is defective.

--- Later in debate ---

[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

William Cash Excerpts

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[The Solicitor General]

The position that my right hon. and learned Friend took on the charter back in 2007 is the right one. As I was saying, it is in the interests of maintaining the rule of law that we maintain clarity, consistency and a clear authoritative source for those rights. My genuine concern about the importation of this particular charter into our domestic law is that we will sow confusion. That is not good for the maintenance of the rule of law, for the citizens of our country, for the future development of the law or for the position of this place vis-à-vis that development.

[Sir William Cash (Stone) (Con)]

I entirely endorse what my hon. and learned Friend is saying, not least because of the acquis itself. Secondly, there are the adjudications under the European Court itself. Thirdly, the charter is like a legal ectoplasm: it seeps into everything. There is no way in which we would ever be able to extract ourselves from the entirety of the provisions in perpetuity.

[The Solicitor General]

I am grateful to my hon. Friend, who raises a genuine concern about the impact of protocol 30. Many Opposition Members were here 10 years ago; they were anxious then to make sure that the protocol was included in the Lisbon treaty. They are now happy to resile from that position and take an entirely different view. I take great issue with that: the legal principles were the same then as now. Nothing has really changed about the potential force of the charter, so I am rather bemused to hear about that volte-face on the part of many Opposition Members.

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[The Solicitor General]

I hope that my right hon. and learned Friend is allowing me to intervene on his intervention. Let us not forget that we are dealing with the pre-exit situation. The EU acquis is being frozen, in the sense that its full effect in a pre-exit sense must be maintained so that we can maintain certainty. I agree that it is a strange and rather unusual concept, but I think it preserves that all-important certainty.

Time is short, and I want to ensure that I deal with further amendments.

[Sir William Cash]

Will my hon. and learned Friend give way?

[The Solicitor General]

I must press on, I am afraid.

The amendments tabled by my right hon. and learned Friend the Member for Beaconsfield relating to the way in which we designate EU legislation make important contributions to the debate, but they are laden with problems. The sheer volume of what we are dealing with—well over 15,000 pieces of legislation—leads me to draw back from trying to create a convenient categorisation of retained EU law. With the greatest respect, I think it far wiser for the Government to approach each item on a case-by-case basis, not making glib assumptions and trying to downgrade EU law, but getting each particular measure right.

Amendments tabled by the hon. and learned Member for Edinburgh South West and others deal with, again, the debate on clause 6 and the interpretation of retained EU law. I entirely understand why the amendments were tabled, because the debate is intense, but I would say to those Members, with respect, that I think less is more. The more we try to enshrine in law principles such as persuasive authority—which is in one of the amendments—the more I see the potential for judicial head-scratching and litigation of a type that I do not believe the judiciary would welcome. I have said it before and I say it again: I trust our judiciary to answer the question put before them rather than to survey like lions of the constitutional savannah and to run across the landscape. They answer the question that is put to them, and I trust them to do that and to use the discretion that quite naturally they should be given.

In relation to the new clause in the name of the hon. Member for Brighton, Pavilion (Caroline Lucas), it is clear that the Government regard animals as sentient and we of course support the sentiment behind the new clause, as we did on a previous occasion, but we could not support it then and the reasons for not supporting it have not changed. Article 13 places an obligation on the EU when developing certain policies, and on EU member states when developing and implementing those policies. That obligation, because animals are sentient beings, is to have full regard to their welfare requirements, but article 13 applies only to a limited number of EU policy areas, and frankly it also allows for practices that we would consider cruel.

European Union (Withdrawal) Bill

William Cash Excerpts

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

[Matthew Pennycook]

After the transitional period, the ECJ would not be the adjudicator. That would be dealt with as a matter of retained law. My hon. Friend has reinforced a point that I made earlier. We need a level of enhanced protection and the courts need clarity on how to interpret this new category of law, because if they do not have that clarity and certainty, they will be more vulnerable.

[Sir William Cash (Stone) (Con)]

I hope shortly to be able to make a brief speech on that very subject, dealing with the question of whether or not there should be a power for the courts to disapply Acts of Parliament in relation to the matters to which the hon. Gentleman has referred.

[Matthew Pennycook]

I am not sure that that warranted an intervention, but I await the hon. Gentleman’s contribution with bated breath.

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[Mr Clarke]

I agree with that second point strongly, and I will consider the implications of the quote.

The point I am trying to make is that, whatever the basis on which we come out, there are bound to be adverse effects on the British economy if we create new barriers between ourselves and the biggest free market in the world. No other Government would remotely contemplate moving out of such a completely open and free market and deliberately raising barriers by way of tariffs, customs processes or regulatory divergences between themselves and such a hugely valuable market. It is particularly valuable to us not only because it is a huge market but because it is on our doorstep. We have played a major part in creating this totally open trade.

If we proceed to a deal in which we withdraw, we will inevitably find ourselves, to some degree or other, taking an economic blow and probably making future generations less prosperous than they would otherwise have been. It is important that we all realise that, which is why it is a great pity that the House is not being given the information necessary to make a really informed judgment, as the hon. Member for Glenrothes (Peter Grant) has just said, or being allowed any opportunity to guide the Government and hold them to account for the course on which they are set on these economic and trading implications.

[Sir William Cash]

In his assessment, has my right hon. and learned Friend taken into account the fact that services within the European Union have never been completed under the single market? Furthermore, our deficit in the past year with the other 27 member states has gone up by another £10 billion, while our surplus in our trading with the rest of the world has grown exponentially by another £6 billion or £7 billion, so I really rather doubt his conclusions.

[Mr Clarke]

I entirely agree with my hon. Friend’s first point. For as long as I can remember, it has been the policy of Conservative Governments, some of which I have served in—indeed, it is a policy in which I have been involved from time to time—to press for the single market to be extended to cover all services. Until the referendum almost 18 months ago, we were still actively engaged in canvassing for that and trying to push it forward inside the EU. We are also making considerable progress towards a digital single market across Europe, which will be very important. The other member states are likely to go on and complete that quite soon.

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The fact remains that the benefit of free trade agreements is that—so long as we are careful not to go into areas where we can see we cannot compete—they can stimulate increased economic activity on both sides of the deal. As for the fact that our trade over recent years with non-EU countries has grown more than our trade with EU countries has done, that is the way in which the globalised economy has worked since the 1990s. We actually do very badly in an awful lot of the strong emerging countries. The Germans completely outperform us in China, for example, but we have got going there. The fact is therefore that every other country will find that their trade with countries that were previously poor and are now rapidly emerging will grow faster than their trade with their traditional markets. That does not alter the fact that our European market is absolutely dominant.

[Sir William Cash]

rose—

[Tom Brake (Carshalton and Wallington) (LD)]

rose—

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[Mr Leslie]

My hon. Friend is absolutely correct. It is important that our constituents know that nothing is inevitable. One parliamentary decision cannot bind a successor Parliament, because Parliament has the capability to do a number of things. Although the article 50 notice signalling the Government’s intention has been sent in, it is not a binding commitment.

[Sir William Cash]

rose—

[Mr Leslie]

It might be my intention to give way to the hon. Gentleman, but I might change my mind by the time I get there. I can walk towards a Division Lobby while thinking that it is my intention to vote for a particular issue, but I might change my mind at the last minute. We are all able to change our minds. That is the nature of life, and we can all do the same in a dynamic democracy and Parliament.

Article 50 says that treaties shall cease to apply from

“the date of… the withdrawal agreement or, failing that, two years after the notification”,

but we will have left only after those events. Article 50 is of course silent on what happens during the two-year interim period before the agreement. We are still full members of the European Union, prior to the withdrawal agreement or the expiry of the two-year period, so it stands to reason that we should continue to act as such. The framers of article 50, who include Lord Kerr, said that a “request readmission after negotiation” clause was not necessary because that was taken as read. That is how the 1969 Vienna convention on the law of treaties operates, and it is accepted by many jurisdictions around the world. Article 68 of the Vienna convention states:

“A notification or instrument… may be revoked at any time before it takes effect.”

That is the widely understood nature of such treaties.

[Sir William Cash]

I just thought that I would draw the hon. Gentleman’s attention to the European Union (Notification of Withdrawal) Act 2017. I do not think that he voted for it, but 499 other Members did, and it passed the House of Lords, so I would have thought that that would be quite a difficult problem for him to overcome.

[Mr Leslie]

No Parliament can bind its successor, and that Act was passed in a different Parliament. It may not be necessary for the UK to consider extending or revoking the article 50 process, but it might prove necessary. MPs and the public have a right to know that such options are available. Nothing is inevitable about this whole process. Choices and options are available to this country, and the Government should publish their legal advice and a summary of that advice. There is ample precedent for doing that. Indeed, when the right hon. and learned Member for Beaconsfield (Mr Grieve) was Attorney General, he published summaries of legal advice. The measure does not even ask for a breach of the confidentialities between client and legal adviser, but this House is entitled to a summary. We need to know and the public need to know, which I is why I want to press new clause 6 to a Division, if I get the opportunity.

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[Peter Grant]

As I said, I have been disappointed in the performance of the official Opposition up until now. I think we are seeing some signs of cohesion, and quite a number of speakers have been very firm in favouring the single market, as indeed we have heard across the House.

I do not want to point out mistakes that have been made in the past or score political points. There is a time and a place for that. The situation that we will face within the next couple of hours is so important and could have such devastating consequences for all our constituents that how about, just for a couple of hours, we forget the mistakes that each other has made and look at the catastrophic mistake that we may be about to make if we allow the Bill to go through without amendment 59 or something similar being passed? This may be the last chance we have to keep ourselves away from the cliff edge. I say to all those in this House, regardless of their party allegiance, who know that the single market and the customs union is where we have to be, please come through the Lobby with us tonight to vote to make sure that that happens.

[Sir William Cash]

The European Scrutiny Committee, of which I have the honour to be Chairman, has been holding inquiries into the fundamental constitutional implications of the Bill, including clause 5. As is now shown on its website, I have had correspondence with the Prime Minister on its behalf since December. The provisions I refer to would empower the courts, for the first time in our Westminster-based legislative history, to disapply Acts of Parliament. This is no theoretical matter. Indeed, we are advised that such disapplication is likely to apply to a whole range of enactments, including those relating to equality, terrorism, data protection and many other matters.

I raised this massive constitutional issue, as I regard it, in Committee on 14 and 21 November, including by reference to the authoritative statements made by the late Lord Chief Justice Bingham in chapter 12 of his book on the rule of law and the sovereignty of Parliament. Let us bear in mind that he is one of the most authoritative judges in recent generations. He says:

“We live in a society dedicated to the rule of law; in which Parliament has power, subject to limited, self-imposed restraints, to legislate as it wishes; in which Parliament may therefore legislate in a way which infringes the rule of law;”—

I repeat, “infringes the rule of law”—

“and in which the judges, consistently with their constitutional duty to administer justice according to the laws and usages of the realm, cannot fail”—

I repeat, “cannot fail”—

“to give effect to such legislation if it is clearly and unambiguously expressed.”

In that book, he publicly criticised the attitude of Baroness Hale, who is now President of the Supreme Court, and Lord Hope of Craighead for suggesting that the courts have constitutional authority as against an Act of Parliament.

Lord Bingham also specifically approved the analysis of what he described as the “magisterial” authority of Professor Goldsworthy, whom he quoted as follows:

“the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it… What is at stake is the location of ultimate decision-making authority… If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe on unwritten rights, they would be claiming that ultimate authority for themselves.”

He went on to state that they—the judges—would then be transferring the rights of Parliament to themselves as judges. He says:

“It would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum.”

That is the basic principle.

Members of this House and the House of Lords, including former Law Lords and members of the Supreme Court, are themselves deeply concerned about—

[Mr David Jones (Clwyd West) (Con)]

Lord Neuberger, who is the former President of the Supreme Court, has also expressed concern about the perceived illegitimacy of judges overturning Acts of Parliament. Is my hon. Friend concerned that the power in clause 5 to disapply Acts of Parliament might result in a worrying politicisation of the judiciary that I would have thought would be unwelcome not only to hon. Members but to the judges themselves?

[Sir William Cash]

I am indeed. I am grateful to my right hon. Friend, who also serves on the European Scrutiny Committee. The provisions I refer to would be express provisions. Therefore, the question of principle is fundamental and will also, no doubt, be taken up in the House of Lords. Furthermore, former Law Lords and members of the Supreme Court have expressed their concerns.

The European Scrutiny Committee’s unanimous view when we met this morning was that Parliament as a whole needs a solution that confirms the principle of parliamentary sovereignty along the lines of declarations of incompatibility under the Human Rights Act 1998, as I indicated in my correspondence with the Prime Minister, whose letter I received on 9 January. To take this forward, may I ask my hon. Friend the Minister to intervene to give me and the House an assurance that when the Bill is in the House of Lords, the Government will constructively engage with the European Scrutiny Committee, with any other Committees of both Houses and with the advice of the Attorney General and the Lord Chancellor to explore and find a proper solution to the constitutional issues I have raised in the national interest?

[Mr Baker]

I am grateful to my hon. Friend for the case that he has made. The Government are well apprised of the issue that he has brought to the House. It is absolutely right that we respect and uphold parliamentary sovereignty—

[Mr Speaker]

Order. Before the hon. Gentleman continues, I had—I will not say revelled in the expectation, but had been taking quiet satisfaction in the expectation, that the hon. Member for Stone (Sir William Cash) had in fact completed his speech.

[Sir William Cash]

I was completing my speech by inviting the intervention that my hon. Friend is now making.

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[Sir William Cash]

I am most grateful to my hon. Friend for his response. May I simply say that these are issues of immense constitutional importance? My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) mentioned that yesterday and we have had debates on it in Committee, and I am most grateful for my hon. Friend’s assurance.

[Tom Brake]

It is always a pleasure to be in the Chamber to hear the right hon. and learned Member for Rushcliffe (Mr Clarke). When I hear his rational, measured comments on the European Union, I wonder whether his memoirs will include a substantial chapter on how his party has been overtaken by the old guard ideologues on the fourth row and, indeed, the new, modern ideologues sitting on the Treasury Bench.

We heard from the right hon. Member for Wokingham (John Redwood), who is no longer in his place, that we have had adequate debating time for this Bill. As a Member who has made speeches often of only three or four minutes’ duration during the course of these eight plus two days, I would say that, while I believe people should be able to put the content of what they want to say into a concise speech, it is actually rather difficult to do that in three or four minutes on a subject of this nature. I would therefore challenge anyone who says we have had adequate time to debate this issue.

I support several amendments in this group. I support new clause 18, which would lock in the Government’s intentions to respect the environmental principles and to set up an independent environmental regulator, and new clause 21, which would provide continuity on environment powers.

I support new clause 20, which would establish a citizens’ jury. I mentioned that in an earlier debate. A citizens’ jury has already been held on this subject; it had a balance of 52% people who were leavers to 48% who were remainers. It had some really in-depth discussions on issues such as freedom of movement. Interestingly, they came to the conclusion that they were in favour of freedom of movement, albeit arguing—the right hon. and learned Member for Rushcliffe made this point—that the Government should apply the powers they already have to deal with the issue more effectively. Indeed, if the Government had sought to engage effectively with the other EU countries on the issue, I suspect they would have been able to achieve more than has been achieved.

I support new clause 2, which sets out what should be in the withdrawal agreement, and amendment 59. I thank the SNP for co-ordinating the Opposition parties—unfortunately, minus the official Opposition—in getting support for amendment 59. One of the positive things about the Bill, and there are not many of them, is that the Opposition parties and, on occasion, Conservative Members have worked quite constructively together to try to ensure that the Bill is better than it was at the outset.

I want briefly to mention new clause 11. Again, I welcome the cross-party support that the Liberal Democrats have received, with support from Labour Back Benchers, the SNP, Plaid and the Green party. What does new clause 11 seek to do? It seeks to achieve two things. I intervened earlier on the right hon. and learned Member for Rushcliffe when he was talking about the impact assessments. New clause 11 tries to ensure that the Government have to produce an assessment of the impact on the UK economy and each nation, province and region before we have a so-called meaningful vote. I cannot see any circumstances in which this Parliament and its Members can have a meaningful vote on an agreement or on no deal if we do not have an assessment of the impact.

I must say that departmental responses to my parliamentary questions about this have hidden behind the fact that there is something called an “Impact Assessment” to refuse to make available to Parliament an assessment of the impact. I point out to Departments that, to be grammatically correct, if I had meant the “Impact Assessment”, I would have used a capital I and a capital A, and I would then have received the impact assessments that have been done on Government Bills. However, I did not do so, and in common parlance I was entitled to expect the Government to provide an assessment of the impact, rather than to hide behind the niceties of the ways in which parliamentary Bills are dealt with.

The first purpose of new clause 11 is to force the Government to publish an assessment of the impact. Like the right hon. and learned Member for Rushcliffe, I have serious concerns about the reasons the Government would not want to make such information available. I cannot think of any other circumstances in which we, as a Government and as a Parliament, would be about to take a decision that will have the greatest impact on the economy, our security and our diplomatic profile and stature in the world without any impact assessment provided by the Government. I and other Members have been to see the so-called sectoral analyses—they were under lock and key for no reason whatsoever—and, frankly, there was nothing of any great substance in them that could not have been obtained from going online and googling the various sectors. We need to have this information.

I hope that the Minister who responds may for once be willing, when they respond, to explain why they do not want to make this information available to Members of Parliament. The Solicitor General has heard my comment. I am not sure whether he is going to respond, but I hope he will make a point—either by responding himself, or by getting the Box to provide him with an answer that can be put on the record—of explaining why the Government do not want to share with Members of Parliament an assessment of the impact that whatever deal they come up with, or indeed no deal, will have. We need that, and I would love to have it put on the record.

The second part of new clause 11 is about ensuring that, if Parliament does not agree to the deal or does not agree to no deal, either article 50 will be extended or—frankly, this is my preferred option—article 50 will be rescinded. Members who have looked at the new clause will see that, as I have said, it has two halves. First, there is the process of securing an assessment of the impact. If an agreement is reached, an assessment of the impact must be available. Equally, if no agreement is reached, such an assessment must be available.

Secondly, the Government would have to put a motion to the House that would allow Parliament to approve the intention to leave the EU without a deal. I guess the House could do that, although I hope we would not do so. If Parliament said no to that, however, other options would kick in requiring the Government to go back, in the very limited time still available, to try to secure a deal before March 2019; to go back to the European Council and request an extension of article 50; or to rescind the notice under article 50. It would clearly be very helpful to have the legal advice that the Government have received. I and many Members believe that the legal advice would have made it very clear that article 50 can be revoked, and the only reason why the Government do not want to make that information available is that it helps their case to pretend that it cannot be revoked.

I am aware, Mr Speaker, that several Members want to speak and there is very little time left. I hope I have put succinctly the reasons not only why I support several of the amendments—if they were pushed to a vote, I would be very happy to support them—but why I intend, subject to your agreement, to press new clause 11 to a vote.

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We cannot abdicate that responsibility. In truth, we have been left completely in the dark. Indeed, the Government themselves are in the dark, because we do not even really know whether we can secure a withdrawal agreement, for the reasons I gave in an intervention regarding our relationship with Ireland. The transitional arrangements look pretty clear, but I fear—the pejorative term might be the vassalage that my right hon. Friend the Foreign Secretary dislikes—something that inexorably takes our country towards continuing membership of every institution of the European Union without our having any influence over policy making.

[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.

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[Sir William Cash]

In brief, this Bill, with clause 1, which says that we are repealing the European Communities Act 1972, reflects the will of the people on 23 June 2016 and the will of this House, as expressed in the votes. So there are two absolutely valid reasons why this Bill must go through: it represents the will of the people outside the House; and it represents the will of the people inside the House. Therefore, I say one thing only when it goes to the House of Lords: those in the House of Lords must surely realise that they agreed to the European Union Referendum Act 2015, a sovereign Act of Parliament, which went through and enabled the question of whether we leave or remain in the European Community to be decided by the people outside. That was a transfer of power deliberately taken by this House and it must be carried through.

That is all I need to say, other than that for 33 years it has been my privilege to try to fight for this proposal and I am deeply grateful to all the people in the House who have agreed to it and to those who have exercised their democratic right to oppose those views.

European Union (Withdrawal) Bill

William Cash Excerpts

Ping Pong: House of Commons
Wednesday 20th June 2018 Commons Chamber

[Philip Davies]

I am not going to give way, because time is limited. Since then, some people who did not like the result of that referendum and perhaps did not even expect it have had a new-found enthusiasm for the rights of this Parliament to decide all sorts of things. They were quite happy for all of these powers to be given over to the EU willy-nilly, but they now have this new-found enthusiasm that this House should decide everything.

[Sir William Cash (Stone) (Con)]

rose—

[Philip Davies]

I am not going to give way. As I was saying, if only that had been the case before. I excuse from this my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), because he did not vote to have a referendum and so there is absolutely no reason why he should feel in any way bound by its result. I perfectly respect that; his position has been entirely consistent. What I have no time for—

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[Mr Speaker]

The time limit is now two minutes.

[Sir William Cash]

There is just one fundamental point that I would like to make about this debate, which is that the decision that was taken in the European Union Referendum Act 2015—by six to one in the primacy of this House of Commons and in the House of Lords, which endorsed it—was to accept that the people of this country, not 650 Members of Parliament, would make the decision in the referendum. I need say only one word about this: our constitutional arrangements in this country operate under a system of parliamentary government, not government by Parliament.

[Chris Bryant]

When I was training to be a priest in the Church of England, my professor of systematic theology was called John Macquarrie. He would say that he was often asked by parishioners, “What is the meaning of God?”, but that actually the far more important question is, “What is the meaning of meaning?” To be honest, it feels as though that is what this afternoon’s debate and last week’s debate have been about: what is a meaningful vote?

The first point is that a meaningful vote is surely not one that is meaningless. We had a meaningless vote on Monday afternoon after the SO24 debate. It was meaningless because we were voting on whether this House had considered the matter of the Sewel convention, and even if every single Member of the House had voted against that, we would none the less have considered the matter. This is exactly what we do with statutory instruments as well: we vote on whether we have considered the matter. The Government’s motion will require the Government—not allow them but require them—to table a neutral motion.

I disagree with the hon. Member for North East Somerset (Mr Rees-Mogg), who said that the vote in 1940 was on the Adjournment. It was not—it was on whether this House should adjourn for a successive number of days, and it was an amendable motion that would have had effect—