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.