Business of the House

William Cash Excerpts

Wednesday 3rd April 2019 Commons Chamber

[Sir Oliver Letwin]

That is an instructive example. The last time around, when as my hon. Friend rightly says the Prime Minister sought an extension, in point of fact, she sought a double extension in a sense, because she then brought before the House a statutory instrument which, although not much considered, provided both for 12 April and a later date to be included in the adjusted domestic law, in the European Union (Withdrawal) Act 2018. There was, however, no direct discussion in this House of the validity or otherwise of the period for which she sought the extension. I do not complain about that because, as things then stood and as they stand today before the passage of this business of the House motion and the Bill, if they do pass this House, the Prime Minister has an absolute right to seek those extensions—without consulting anyone, actually. There is absolutely no need for her to do so, because it is a prerogative power. She might feel it necessary to mention something to Her Majesty, but otherwise there is no reason for the Prime Minister to tell anyone.

The Bill will provide for a transparent process not for consultation but for approval by the House of the application that the Prime Minister makes to the EU. I believe, as do others who support the Bill, that that is appropriate. Of course, one can have an argument about that—my hon. Friend the Member for Dover (Charlie Elphicke) might well disagree—but that is the purpose of the Bill, so I do not think one can deny that, from my point of view or that of someone who shares it, the Bill is therefore necessary.

[Sir William Cash (Stone) (Con)]

My right hon. Friend made an assertion just now about the law relating to the prerogative. He may recall the Gina Miller case and the great deal of powerful evidence to suggest that he is fundamentally wrong on that very question. Will he accept the fact that there are those who have a very different view?

[Sir Oliver Letwin]

The idea that after all these years of many charming conversations with my hon. Friend that I would not accept that he might often have a very different view from mine is of course fanciful. I entirely accept that he might have a very different view from mine—he very probably would do.

On this particular point, I do not think that the Gina Miller case is relevant, because the decision by the Supreme Court in that case was in essence based on the question of individual rights. The argument, whether right or wrong, was that in invoking article 50 there was an attempt to use the prerogative power in a way that the Supreme Court believed would arguably deprive individuals of rights. No one can argue that seeking an extension of the existing position, which is that we are in the EU, deprives anyone of their rights. I therefore very much doubt that the Gina Miller case could be used as a means of injuncting the Government to seek parliamentary approval.

In this case, in any event, we have empirical proof. As my hon. Friend the Member for Dover pointed out, the Prime Minister has already sought an extension, and she did that quite properly without asking the approval of the House of Commons. Therefore, she and the Government lawyers on this occasion obviously agree with me. I accept that my hon. Friend the Member for Stone (Sir William Cash) might well be right and the Government lawyers wrong, but at least I have some backing on the matter.

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[Sir Oliver Letwin]

I am well aware that my hon. Friend did, and I welcomed her arrival in the Lobby. I am just pointing out that it was not me who designed an arrangement that meant it was necessary to take these actions.

[Sir William Cash]

rose—

[Sir Oliver Letwin]

I am terribly sorry, but I will not give way, because I have promised to give way to my right hon. Friend the Member for Chingford and Woodford Green and then to sit down.

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[Valerie Vaz]

Yes, and I pay tribute to my hon. Friend, who is a former shadow Leader of the House. She is right. She has heard me ask at business questions a number of times for Opposition days, to which we are entitled, and we have debated the fact that the Government decided to rig Select Committees and other Committees by giving themselves a majority on them.

[Sir William Cash]

A great number of constitutional Bills have been examined by the Clerks and others in relation to matters of this character. Would the hon. Lady be good enough to give us examples of comparisons of different kinds of Bills, or would she be glad to wait for me to explain it a bit later?

[Valerie Vaz]

I think we can wait for the hon. Gentleman’s lecture later.

The motion allows for the Bill to be considered and asks the Prime Minister to make a proposal to be considered by the House the day after enactment. As with every Bill, a helpful explanatory note to the Bill is available in the Vote Office that describes each clause and exactly what the Prime Minister has to do.

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[Andrea Leadsom]

What is in order about today’s business is entirely a matter for the Chair. The point I am making is that it breaks many years of precedent, whereby the Government of the day, with the confidence of the House, determine the business of the day, and then parliamentarians scrutinise, amend and reject or approve.

[Sir William Cash]

Many people who have had a chance to look at this Bill have noticed that it is completely shambolic and extremely badly drafted. We will be moving on to consideration of amendments in this very truncated and, in my view, completely reprehensible procedure. Grouping of amendments will be necessary in the circumstances, which means that many important amendments—even those intending to improve the Bill—will simply neither be reached nor passed. Is that not an indictment of the manner in which this entire process is being carried on by my right hon. Friend the Member for West Dorset?

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[Mr Duncan Smith]

Will the hon. Gentleman give way?

[Sir William Cash]

rose—

[Pete Wishart]

I will take both interventions, because I will enjoy them.

[Pete Wishart]

What attracts me to this particular motion today is that Parliament is doing this. For the first time, Parliament is actually defining, creating and progressing a Bill through this House. That is an exciting prospect, and I did not think the right hon. Gentleman would be so churlish as not to enjoy that, as somebody who really enjoys such events.

[Sir William Cash]

I was intrigued by the hon. Gentleman’s reference to taking back control because, of course, what actually happened is that the referendum Act, by 6:1 in this House, gave the decision to the British people—that is what the vote was about—and they also voted incessantly, and rightly, for a whole series of enactments. In fact, the sovereignty of this Parliament has been preserved, but it was given to the people so that they could make the decision, and now Parliament is trying to take it back again.

[Pete Wishart]

I love this—this is really good stuff and entertaining. So taking back control is qualified: it is taking back control as long as it is the hon. Gentleman’s control. This is how these things become particular issues for him.

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[Sir William Cash (Stone) (Con)]

I have already made my remarks on the methodology that is being employed in respect of the Bill. I think it is reprehensible. It represents a constitutional revolution, and it sets a very undesirable precedent. My right hon. Friend the Member for West Dorset (Sir Oliver Letwin) said in his concluding remarks that responsibility for all this somehow lies with those, such as myself, who oppose the withdrawal agreement and related matters. I do not think I am misrepresenting him by saying that, but I think the truth is quite the opposite.

Something of the order of 30 colleagues—I say this with great respect to them, because they are entitled to say and do what they want—are doing something profoundly undemocratic by supporting what my right hon. Friend is trying to achieve, in all its enormity, with this business motion. The precedence that is given in Standing Order No. 14 to Government business is one of the rocks of our parliamentary system. Why? Because we have a system of parliamentary government, and a system of democratic government.

I say in all reasonableness that Standing Order No. 14 gives precedence to Government business for a very simple reason. If a Government are formed because the Queen has agreed that a Prime Minister should take office, it follows that Her Majesty’s Government have a majority and/or a sufficient degree of confidence to be able to carry the business of the House. That is the constitutional convention, and that is what our Standing Orders say.

[Sandy Martin (Ipswich) (Lab)]

Will the hon. Gentleman give way?

[Sir William Cash]

No, I will not.

To rip up that convention, which is basically what my right hon. Friend the Member for West Dorset is doing, is extremely undemocratic and, if I may say so, unparliamentary. It goes to the heart of whether business in this House is conducted in line with the wishes of those who voted either in general elections or, in this case, by virtue of the European Union Referendum Act 2015—the sovereign Act of Parliament that gave the decision to the British people. The business motion and the shenanigans that go with it are an attempt to take back control over that business and give it to Members of Parliament, who have no legitimacy whatsoever to make decisions that they have given, by their own vote in this House—by six to one—to the British people. That is a very simple constitutional point, and I do not think that anybody can dispute it. If anyone wishes to dispute it, will they be kind enough to get up?

[Sandy Martin]

Does the hon. Gentleman not accept that he is trying to have it both ways? Whether or not we believe that the constitution is currently perfect, which I do not, either the Government are capable of delivering decisions or, if they are incapable of forming a majority and making vital decisions, it is surely incumbent on the Members of Parliament to find ways to do so.

[Sir William Cash]

I could not disagree more, because the manner in which this is being done involves legislating in circumstances that will mean, as I said yesterday on a point of order, Mr Speaker, that all these arrangements are rammed through. There will be no practical opportunity today to make amendments and to get them tabled, discussed and voted on, because of the grouping system that we have under our procedures.

I say to the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) that the fact is that this is a shambolic Bill. A number of things have to be changed in it. There are references to Acts of Parliament that do not exist and it is alleged that sections are in force when they are not. This Bill is a most unbelievable shambles, and the reality is that there is no excuse for it. Hon. Members have had the previous No. 4 Bill for some time, and they suddenly decided to accelerate this procedure to try to get some kind of political advantage, undermining the decision of the House in the European Union (Withdrawal) Act 2018—that is, the repeal of the European Communities Act 1972, which is related in turn to exit day. That exit day has been moved back by a statutory instrument. I personally think that it is unlawful, but that is a separate question, not for today. The repeal of the 1972 Act, on which everything depends—including that it is the anchor of the referendum itself—has to go in lockstep with exit day. Moving exit day does not prevent the repeal of the 1972 Act. All I can say is that that has fundamental relevance to what is going on today.

Turning to my next point, the real question is this: who governs this country? That is what Standing Order No. 14 is all about. I notice my hon. Friend the Member for Sandbach having a bit of a laugh there—

[Antoinette Sandbach (Eddisbury) (Con)]

rose—

[Sir William Cash]

Just one moment—if I may, I will finish my initial response. I have to say that there are some difficulties arising on that question. Actually, the Government’s business taking precedence under Standing Order No. 14 gives this right to the British people, in line with a majority that does exist.

[Mr Speaker]

For the avoidance of doubt, I think I am right in stating to the House that Sandbach is a place and indeed, that it is not all that far from where the hon. Lady represents, but she is of course Antoinette Sandbach, the hon. Member for Eddisbury.

[Antoinette Sandbach]

Thank you, Mr Speaker. I am grateful to my hon. Friend the Member for Stone (Sir William Cash) for allowing the intervention, because I had always thought that it was a principle that Parliament has ultimate sovereignty in the UK.

[Sir William Cash]

That is absolutely the fundamental doctrine. All I am saying to my hon. Friend—I have said it to the House many times—is that when, by a solemn Act of a sovereign Parliament, we transfer a decision to the British people by six to one in this House, that is an act of transferring sovereignty to them so that they can make the decision. It is as simple as that.

[Mark Pritchard (The Wrekin) (Con)]

Is it not the case that no Prime Minister, no Member of Parliament and no Parliament is above the people, and that we are all supposed to be servants of the people?

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[Sir William Cash]

I agree with everything that my hon. Friend said, but the reality is that in these special circumstances, it is about who governs and it is about sovereignty. The sovereignty was given to the people on this particular question by an Act of Parliament, as well as by their intrinsic right to vote in general elections.

My next and last point is on the question of constitutional comparisons. I will refer to a number of Bills on which, on previous occasions, we have had a similar sort of procedure. The Northern Ireland legislation to which you referred yesterday, Mr Speaker, in response to a point of order was something of a particular case, but it was not the same type of legislation that we are dealing with here. There was the War Crimes Act 1991. There was the Parliament Act itself and a series of other Bills. There was the Hunting Act 2004, which I do not think really falls into this category, because it was a different sort of Bill.

When we are making judgments about constitutional matters, the question is one of apples and pears. It is the question of whether there is a distinct constitutional difference. The point that I am making, in general terms, is that there is a very specific constitutional difference between this Bill and the other Bills to which the shortened, accelerated procedure has been applied. These matters were considered by the House of Lords Constitution Committee, which was deeply critical of the speed with which certain Bills relating to Northern Ireland were dealt with.

The essence of the problem is that the present situation contradicts the precedents, because this Bill is so shambolic and so badly drafted. Moreover, I think I heard my right hon. Friend the Member for West Dorset suggest that the amendments would be dealt with in the undemocratic House of Lords. For heaven’s sake! The House of Lords is a body that, in matters of this kind, does not really have the status that the House of Commons has. I put it no higher than that.

[Sandy Martin]

Given what the hon. Gentleman is saying about the House of Lords, will he join us at some subsequent time in reforming it?

[Sir William Cash]

The hon. Gentleman is in for a pleasant surprise. I have been talking about reform of the House of Lords, on and off, for the last 20 years, and I believe that it is necessary. However, I will leave that aside, because I do not think it is directly relevant to the point that I am making.

We have had the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018, the War Crimes Act 1991, and the European Parliamentary Elections Act 1999. We have also had the Hunting Act, but, as I said earlier, I do not think that it is strictly relevant. In the case of the War Crimes Act and the European Parliamentary Elections Act, the Parliament Act 1911 became involved, which I think is very interesting. The 1911 Act applies a great deal of delay to a Bill, and that is very relevant to this particular case. I think I am right in saying that the reason for adopting this procedure was to speed up the Bill’s progress in order to avoid any delay that would take us beyond 12 April, for example, as a result of which there would not be the opportunities of which the Members concerned wish to avail themselves.

There are some further examples. There is the Parliament Act 1949, and there is the Defence of the Realm Act 1914. The context of the 1914 Act was completely different as well. That Bill was dealt with very rapidly because it was so urgent in the context of fighting the first world war. This is another kind of war—this is a war fought on pieces of paper—and I think that that is part of our biggest problem. We are fighting a battle about who governs the country, and who will be able to determine the outcome. Let us consider, for example, the question of how the laws will be made under the rubric of the European treaties. As I said the other day, if we remain in the transition period for some years—the number varies from two to four—the House will be politically castrated. As things stand, it will not be able to do anything to influence any law in any field or any competence within the EU treaties, and we will effectively be governed by the majority vote in the Council of Ministers.

This Bill is indicative of the problems that we are up against. It is not an expedited Bill; it is not an accelerated Bill; it is a Bill of constitutional execution. It means that, as a result of the procedures followed, and the procedures that will follow from the fact that the withdrawal agreement—if it goes through—will end up allowing 27 other countries to legislate for us, we will have no right to veto any of those laws. That is, to me, the greatest reason for objecting to the proposal. Furthermore, the Northern Ireland backstop is part of that situation with the control of laws.

So I think this is a grave moment in our constitutional history. I think the Bill is reprehensible; I do not think it should pass. I think it is a disgrace that it was brought in, and I have to say that 30 Members of my own party are responsible for this, because otherwise it would never have got through as a result of the combination of votes with those on the other side of the House. I regard the Bill as a grave constitutional indictment of those who have been responsible for bringing it in.

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[Joanna Cherry]

I will not give way to the right hon. Lady because she persistently refuses to give way to me and I do not want to take up too much time, so it is tit for tat I am afraid on this occasion.

I support this business motion and I support amendment (a) because we must keep control of the House, not just for today but, as the hon. Member for Bath (Wera Hobhouse) said, very importantly for Monday. I am one of many people who think the Bill laid before the House is somewhat deficient. It certainly would not give the degree of protection that the amendment I moved on Monday would have, and which also had a Bill behind it, but we are not there and there is not much I can do about that. I may try to amend the Bill later, but it is the best we have for now, and I see it as an insurance policy against the talks between the Prime Minister and the Leader of the Opposition breaking down or coming up with an even more unsatisfactory situation than we are in at present, which I suspect is what is going to happen.

I also very much agree with the hon. Member for Bath and the right hon. Member for Leeds Central that we must secure the indicative votes slot for Monday and we should be doing that particularly to make sure that composite motions are debated and options for the future combined with the option of a second referendum are debated on that day. The majority of political parties in this House support a second referendum, and I include in that the official Opposition, having regard to their conference motion.

I was interested to hear from the evidence that the Secretary of State for Exiting the European Union gave to the Exiting the European Union Committee this morning that even the Prime Minister might now acknowledge that a second referendum or people’s vote has to be an option. It has been a cause for concern to some of us that Labour Front Benchers have seemed less than enthusiastic about that option on occasions, but I know that they have not written it off completely. I entreat them to ensure that it stays on the agenda, and Monday will provide a way of doing that.

I also say to Labour Members that if their leader cannot secure a second vote in his talks with Prime Minister, he will never be forgiven. He will be remembered as the Labour leader who helped to deliver a Conservative Brexit, and I am sure that no one in the Labour party would wish him to be remembered in that way. As things stand, I am prepared to give him the benefit of the doubt, because we do not yet know the outcome of those negotiations. However, I also want a fall-back position, which is that the House of Commons should have control of the agenda on Monday so that we can hold the indicative votes.

I know that a lot of Conservative Members are really worried about the precedent that could be set by today, and I sort of understand their worry, but I would say to them that today we really are in extremis. The whole of the United Kingdom is at serious risk of crashing out of the European Union without a deal, and that would be a disaster for the economies of these islands and for our social fabric—[Interruption.] People are muttering at me that I should vote for the withdrawal agreement, but that is not my mandate. Please try to understand and respect the fact that there are Members of this House who were elected on a manifesto of stopping Brexit. They should please desist from trying to ram their opinions down our throats, because that is not acceptable.

[Sir William Cash]

I much respect the honesty of the hon. and learned Lady, and actually she is right. I have never, in any of the debates on this issue—heavens above, there have been enough of them—criticised the SNP, because I know that it has that manifesto commitment. I also know that its objective is the independence of Scotland. Adding to the point that she has already made, I want to ask her this. If the truncated procedure that we are witnessing now had been applied to, for example, the Scotland Act 2016 or to any amendments to it, would she not have regarded that as an unbelievable travesty?

[Joanna Cherry]

I would, and that is a point that I am coming on to address. I must point out to the hon. Gentleman, however, that the Scotland Act was indeed an unbelievable travesty because, when it passed through this House, 56 of the 59 MPs who represented Scotland here were Scottish National party MPs, yet not a single one of our amendments was accepted. So in fact, the present system can be a travesty, without having this process tacked on to it.

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[John Redwood]

I am grateful to my right hon. Friend.

The second big issue that is relevant to this business of the House motion is that, traditionally, only a Minister may move a money resolution in support of legislation that requires the expenditure of public funds. Again, there is very good reason for this, because the Government have to be responsible for the Budget, and they normally understand that, if they want to spend more, they have to raise more through taxes or borrowing. The Government are responsible for both sides of the account.

Again, the House can criticise, refuse to agree or try to get the Government to shift their position, but it is the Government who are financially responsible to the markets and for all the other reporting that has to be done. This proposal could have very significant financial consequences indeed, because staying in the European Union is an extremely expensive thing to do, and I think it would need a money resolution, which should be moved by a Minister of the Crown.

[Sir William Cash]

I intend to raise a point of order on this question but, as my right hon. Friend is the first person to mention it, he may be interested to know that I have already prepared a comprehensive note on the question of a money resolution. It would cost UK taxpayers some £36 billion if our contributions are extended for up to two years, which is a vast sum of money. I have written a paper for Mr Speaker and others explaining why I believe a money resolution is required, and at least 50 Members have backed my letter to Mr Speaker on this question. That will come up later.

[John Redwood]

I am grateful to my hon. Friend for that. Again, it is important to have it on the record in this debate for the House’s consideration that we are dealing with things that could have precedents with wide ramifications that go way beyond the next few days and whether we leave in accordance with the views of the British people or not.

The final of my three points is perhaps even more relevant to this particular proposal: it is tradition that the Government have vested in them Crown prerogative, and the Prime Minister and Ministers act on behalf of the Crown in all international negotiations. That is not just our view, important though that is, in this House of Commons; while we still remain subject to the superior law of Brussels, it is also the law of Brussels. The Brussels authorities—the European Union—do not wish to negotiate with groups of MPs. They wish to negotiate with the UK Government, because it is the UK Government who are the signatory to the treaty and the UK Government who have sought the agreement of the EU to our withdrawal—or indeed to our automatic withdrawal under article 50 should no agreement be reached.

[John Redwood]

It worries me, but I am a freedom-loving young man and I think that people will do what they want to do; I do not want to stop MPs expressing their views and going to talk to people with whom we are trying to negotiate. I also have a right to a view on it and I agree with the hon. Lady that if those MPs went there with the express intention of delaying or sabotaging Brexit—if they went there to weaken the pretty feeble position the Government had already adopted in the negotiations in order to make it more difficult for us to get any kind of agreement that I could agree to—that is a matter of grave regret. That will be judged by the British people in subsequent elections. It is not for me to make the misery of those MPs greater; they will need to answer to their constituents about that.

[Sir William Cash]

When I was talking about the money resolution, I ought to have mentioned that it is not just me who has made these submissions; I understand that a Minister has also made representations. I just want to confirm, on the record, that it is not just Back Benchers doing this, but the Government, because a Minister has told me that he has raised them.

[John Redwood]

I am pleased the Government have made that representation, as it adds force to the case I was making.

On this Crown prerogative point, the EU position and the internationally agreed position is that only the Government can formally represent and negotiate on behalf of the UK. So one of my problems, which I raised directly with my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), is how far can this House go in instructing and controlling the negotiation? He gave me a sensible answer, saying that the House was not going to try to say that there had to be a delay, because he fully understood my point that that is ultimately in the EU’s gift. As I pointed out, it is in this House’s gift to insist on a Minister seeking a delay. He rightly added that it is in this House’s gift to decide whether to accept any delay should the EU grant it, but the central point is that, assuming this House wanted a delay, most of the power rests with the EU. As we saw the last time a needless delay was sought and granted, quite a long delay—to 30 June—was requested, but the effective delay turned out to be only until 12 April.

The point I am making is that we do not want to take time debating something that misleads people. A lot of people outside this House think that today we are debating a Bill that will require and achieve a delay, whereas it cannot possibly guarantee to do that. People must also understand that even if this House reaches an agreement with my right hon. Friend the Prime Minister, she may not end up with anything like that which the House was seeking.

The hon. Member for Bath (Wera Hobhouse), who has disappeared, said that she had discovered that we could do anything. I have to disabuse her of that notion in two ways. First, even this House and all Members of Parliament—sometimes the public do not understand this—have to obey the law. Our advantage is that we can change the law if enough of us wish to do so.

Secondly, the hon. Lady also has to understand that great though this House can be once we are out of the European Union, and powerful though it is even still within the European Union, there are a lot of things for which it cannot sensibly legislate. Let us suppose that all working people would like it to rain on Mondays and Tuesdays, and be sunny on Saturdays and Sundays. That would be very convenient and an extremely popular law to pass, but there is no point in passing such a law, because even this House does not control the weather. I feel the same about the European Union.

There is absolutely no point in this House legislating for how the EU should respond, what its conduct should be or what laws it should pass—although they are a matter of great interest to me and many others—because we have absolutely no power over it. Indeed, that was at heart of the referendum campaign. What the SNP never accepts when it uses our phrase, “take back control”, is that the control that we wish to take back is all those mighty powers granted to the European Union, which the SNP is relaxed about. As soon as the Executive here wants any power to behave as a normal Government, however, the SNP says that that is unacceptable and Parliament needs to take it back.

I hope that the House will consider the business motion carefully, that more will come to my view—this is too little time to discuss such fundamental issues—and that they will agree with me that the big issues are to do with our future procedures and with the balance between the Executive and Parliament. I am one who often criticises the Executive, but I do not want to go too far this afternoon so that all government is in effect impossible. They must retain control of the agenda and of the money.

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[Mr Speaker]

I am grateful to the right hon. Gentleman for his point of order. I will not comment on rumours. He has had his fun. I hope he has enjoyed himself, and I am glad that he has preserved his sense of humour. A resolution will be achieved very soon; patience is rewarded.

[Sir William Cash]

rose—

[Mr Speaker]

Meanwhile, the epitome of solemnity, Sir William Cash.

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[Sir William Cash]

Further to that point of order, Mr Speaker. If it turns out to be a tie, and I have no idea if it is—

[Mr Speaker]

Order. May I very politely suggest to the hon. Gentleman, whom I always treat with the utmost courtesy and respect, that rather than asking me what will be, he just waits for a very short time? I know exactly what the situation is in the as yet hypothetical scenario that he describes, and I will give a very clear ruling to the House. If he is still unclear or dissatisfied after that, he can come back at me.

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[Mr Speaker]

No more required; I am being teased mercilessly by the hon. Member for East Worthing and Shoreham (Tim Loughton) and possibly by others—[Interruption.] I thought it was he, but anyway, people were saying, “More!” They do not want more, although I think that the hon. Member for Stone usually does.

[Sir William Cash]

On a point of order, Mr Speaker. Let me simply say that I quite understand the way in which that decision was arrived at. I did refer briefly to Speaker Denison’s rule. Of course, it so happens that this particular Bill should be about the European issue, on which the Maastricht treaty was also extremely important.

[Mr Speaker]

I do not want to tease the hon. Gentleman, but I think that Hugo Young’s book has a whole chapter about him. The hon. Gentleman is not only an historical figure; some people might think that he is a world historical figure.