EU Withdrawal Agreement: Legal Changes

William Cash Excerpts

Monday 7th January 2019 Commons Chamber

[Stephen Barclay]

It is not for me to speculate on what civil servants tell the Leader of the Opposition. I am not sure they would be having those discussions. The reality is that the Leader of the Opposition’s party was the first to offer an in/out referendum. His party should therefore respect the decision, as its then leader said it would. It was the biggest vote in our country’s history and that is why it is right that we avoid further divisiveness and ensure we leave as we said we would.

[Sir William Cash (Stone) (Con)]

First, may I endorse the comments by my right hon. Friend the Member for Wokingham (John Redwood) about the money side of things? It is not just that the backstop is not sufficient in itself. It is a vital issue, but it is not the whole story by any means. We have the European Court of Justice, the question of control over laws, the question of the extension of time under article 132, the issue of state aid and the incompatibility of the agreement with the repeal of the European Communities 1972 Act. So many aspects of the withdrawal agreement are, if I may say so to the Secretary of State, matters that go way beyond mere reassurances. Reassurances will get nowhere. They are certainly not going to convince anybody who is thinking hard about this when it comes to the vote next week.

[Stephen Barclay]

As my hon. Friend will know, the Prime Minister made clear that she has heard the concerns of the House in relation to the backstop and that is subject to the further discussions with European leaders. In terms of its scope, it is worth reminding the House that 80% of our economy is covered by services that would not be within the scope of the backstop. It is worth having some proportion with regard to that discussion. On the other issues, I was not sure whether he was saying he wants more freedom for state aid, which would be the Leader of the Opposition’s position. That is not, characteristically, what I would expect my hon. Friend to be calling for. The reality is that any deal we enter into with the EU will require a backstop. That is the substance of it. Whether that is a Canada option, a Canada-plus, a Canada-plus-plus or a Canada-plus-plus-plus, the reality is that, whatever the deal, it will require a backstop.

Points of Order

William Cash Excerpts

Monday 10th December 2018 Commons Chamber

[Mr Speaker]

That was not advice from the House; it was a Twitter feed. Moreover, I am authoritatively advised—do not forget that I have been in the Chair since 2.30 pm, so I have not been attending to those matters—that the record has since been corrected. I believe it has been corrected, or certainly that the intention is to correct it. I have been advised that it has been corrected, so that is no longer the situation. I do not think I need to elaborate further, although if there is concern or anxiety, or even confusion, I am sure that the right hon. Lady will return to the matter tomorrow. However, the concern that I think she had, quite understandably, should now be allayed by what I have just said. It was, I think, an innocent error, but it was an error.

[Sir William Cash (Stone) (Con)]

On a point of order, Mr Speaker. The agreement appears to have been initialled by the Prime Minister about 10 days ago. Am I right in construing what you have just said as meaning that if there is a new withdrawal agreement so initialled a second time with a new signature, then effectively the entire procedure—whether with regard to the question of the contempt motion or, for that matter, with regard to the question of section 13 and its effectiveness—is that we have to go back to square one?

[Mr Speaker]

Broadly speaking, the answer is yes. We would have to treat it as a discrete item that was beginning and needed to be continued and completed, and I would expect that that which had applied to the existing, but as yet by the House unapproved, agreement would be sought in respect of the new agreement. That would be the premise from which I would work.

EU Exit Negotiations

William Cash Excerpts

Tuesday 9th October 2018 Commons Chamber

[Dominic Raab]

The point is that we hope the backstop will never be used. If it is required, it should be for a temporary, limited period. The right hon. Gentleman asked how that can be guaranteed. In fact, there are limits to the extent to which the EU can rely on article 50 for the backstop—there are very real legal concerns on the EU side—but of course we expect that there is no deal until we have the whole deal. That includes not just the withdrawal agreement and the protocol on Northern Ireland, but clear steps and a clear pathway to the future relationship, which will provide the lasting, sustainable answer on the Northern Ireland issue by ensuring that we have frictionless trade.

[Sir William Cash (Stone) (Con)]

Given the vote to leave and the promised future control over our laws in this Parliament, why are UK voters and businesses being confronted indefinitely with binding EU rules on goods that are made behind closed doors by 27 other member states, with no effective parliamentary lock? Or will the Secretary of State explain now how the parliamentary lock that is being put about would actually work in practice, rather than in theory?

[Dominic Raab]

I do not accept that characterisation of the White Paper proposals. There would be not just technical consultation, but consultation on any legislative proposal in advance. My hon. Friend is right to say that we would be taking an up-front decision to sign up to the common rulebook on industrial goods and agrifood in order to maintain frictionless trade. There would be a parliamentary lock, but we would have to be mindful—as the White Paper sets out—of the consequences of exercising that lock.

Legislating for the Withdrawal Agreement

William Cash Excerpts

Monday 10th September 2018 Commons Chamber

[Suella Braverman]

We are working towards a mutually beneficial agreement. The terms of the withdrawal agreement are mutual, so they will apply equally to EU citizens in the UK and to UK citizens in the EU. In the event of no deal, we would make strenuous efforts to reassure the position of UK citizens in the EU so that they would be able to enjoy the rights that they enjoy today, but we would definitely have to work hard to agree that with individual member states in the EU.

I would now like to turn to the implementation period. The Government are committed to providing certainty and stability to businesses as part of a smooth and orderly exit, and we have been clear that they should only have to plan for one set of changes as the UK moves to the future relationship with our European partners. That is why we have agreed a strictly time-limited—

[Sir William Cash (Stone) (Con)]

In the context of the exchanges that we had in the European Scrutiny Committee last Wednesday with the Secretary of State, can the Minister throw some light on how people will know, when there are changes to the rulebook, what those changes are going to be? What certainty will that provide, when in practice those changes will be decided by 27 other member states behind closed doors and without even so much as a transcript?

[Suella Braverman]

My hon. Friend raises an important point. He will know as well as I do that Council directives and regulations that will come into effect in the UK during the implementation period are currently going through the scrutiny process in the EU, so we will have played a part in the development of many of those rules that might come into effect—

[Sir William Cash]

rose—

[Suella Braverman]

If I may finish my point, I will then give way. For rules where we feel that there may be an adverse effect or on which we have not had sufficient say, we are committed to enabling parliamentary scrutiny, and we are looking forward to discussing those options with Members.

[Sir William Cash]

My hon. Friend has just conceded that there will be a joint committee. She did not specifically say that, but that is how things will work in practice. I am talking about changes to the rulebook. If the 27 member states decide something and we accept it by way of international obligation, I do not see how we can prevent it. The parliamentary lock will simply be a farce.

[Suella Braverman]

When it comes to the implementation period, the withdrawal agreement, in its draft treaty form, contains agreed provisions on a joint committee. That committee could be a forum for resolving the issue to which my hon. Friend alludes. I hope that that provides some reassurance that there is an element of governance that commands some confidence and legitimacy in this process.

Significantly, from March 2019 and during the implementation period, the UK will not be a member state of the European Union. As a result, for the first time in 40 years, we will have the freedom we need to strike new trade deals with global partners—a freedom that builds on our long and proud history as a great trading nation and a champion of free trade with all parts of the world. Important work is already under way to maximise such opportunities. In July, the Department for International Trade launched consultations to inform the Government’s approach to trading with the US, Australia, New Zealand and potentially to seeking accession to the comprehensive and progressive agreement for the Trans-Pacific Partnership. I am excited that those opportunities for the UK are drawing ever closer.

To give effect to the implementation period in domestic law, the withdrawal agreement Bill must ensure that EU law continues to have the same effect in the UK as it does now for the duration of the implementation period. The House will be aware that the current mechanism by which EU law is brought into UK law is the European Communities Act 1972, which will be repealed on 29 March 2019 when we leave the EU as prescribed in the European Union (Withdrawal) Act 2018—a vital step in our exit. The Bill will require a strictly time-limited transitional provision so that the legal effect of the ECA is saved until 31 December 2020, at which point the implementation period will end. That will reflect the UK’s unique status as a country that has left the EU but which, for a strictly time-limited period, will continue to apply EU law as it does now, to the benefit of citizens and businesses.

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[Matthew Pennycook]

I am going to make a little progress, if that is okay.

Let me turn to the relationship between the proposed withdrawal agreement Bill and the recently enacted European Union (Withdrawal) Act, which received Royal Assent on 26 June. Arguably, the most striking feature of the Bill that is the subject of the White Paper is the extent to which it will modify the European Union (Withdrawal) Act that this House and the other place spent more than 250 hours debating, and the fact that in many cases it will do so before the relevant provisions of that Act come into force. Of course, that partly reflects the degree of conditionality and uncertainty that any Government would face in attempting to legislate for Brexit, but in some cases it simply reflects the fact that this Government, scrambling desperately to keep their extreme Brexiteers onside, chose on more than one occasion to prioritise political gimmickry over the dictates of common sense. Such choices were exemplified by the Government’s decision last November to fix an exit day in the European Union (Withdrawal) Act, and in so doing to restrict needlessly the sensible and necessary degree of flexibility that they had originally proposed in respect of an exit day for the purposes of that legislation.

No doubt many Government Members, still intoxicated by the fact that a symbolic reference to 11 pm on 29 March 2019 has been written into UK law, will defend that decision, but the fact is that the proposed Bill touched on in the White Paper will strip that reference of any legal significance. As paragraph 56 of the White Paper makes clear,

“EU law will continue to have effect in the UK in the same way as now”

until the transition period ends on 31 December 2020. Even the most ardent Brexiteers on the Government Benches cannot fail to note the irony that the Government’s flagship “great repeal Bill”, as the European Union (Withdrawal) Act was initially labelled, will not only preserve EU law in its entirety as of 31 December 2020, but will only emblematically repeal the European Communities Act 1972 at the point at which the UK ceases to be an EU member state.

[Sir William Cash]

I do not know whether the hon. Gentleman was in the House at the time, but it may be of some interest to him that I made this very point on 18 July, just as the House was about to rise for recess, because there is a real inconsistency. After all, the White Paper came out on 12 July, yet the European Union (Withdrawal) Act, including the repeal of the 1972 Act in section 1, went through only around 14 days before.

[Matthew Pennycook]

The hon. Gentleman is right, but it is an inconsistency of the Government’s own making, because they chose symbolically to repeal the ECA in the European Union (Withdrawal) Act, and in this new Bill they are going to unpick the very legislation that we passed because, as paragraph 60 of the White Paper makes clear, the ECA will be “saved” for the duration of the implementation period and will continue to be legally effective until 31 December 2020. What is saved is not merely select parts of the ECA, but almost all its key provisions. Chapter 3B of the White Paper makes it clear that the Bill will ensure that throughout the transition, the EU doctrines of direct effect and primacy will continue to apply, including with regard to EU law that comes into force after 29 March next year; the legal basis on which most EU-derived domestic legislation stands will be preserved; and, as paragraph 80 of the White Paper sets out, the full role of the European Court and the binding nature of its rulings will be preserved.

The White Paper argues that repealing the ECA in name only, while in practical effect preserving its effect throughout the transition, is the most effective way to provide continuity and certainty to business and individuals. With the European Union (Withdrawal) Act and its fixed exit day already enacted, that may well be the case, but it is difficult to see why the flexibility provided for in the original drafting of the European Union (Withdrawal) Bill, which allowed for Ministers to determine different exit days for different purposes, would not have achieved the same end, with the added benefit of saving us all a great deal of parliamentary time. The whole farcical saga highlights how when it comes to Brexit-related legislation, the Government have an unhealthy tendency to indulge in short-term tactical gimmicky at the expense of what is sensible and what is in the best interests of the country.

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[Sir William Cash (Stone) (Con)]

I have made the point today—I have made it in previous debates—that it would not be satisfactory at all to accept the Chequers proposals. I shall explain why in relation to the particular arrangements under the White Paper.

First, while the White Paper contemplates saving the European Communities Act 1972 only during the implementation period, there are some very specific instances in which EU law will continue beyond the implementation period. The Government have already conceded in principle that some specific European Court jurisdiction will continue after the end of the implementation period, and that, of course, includes citizens’ rights. The withdrawal agreement, however, also includes other areas for which that would be the case, such as in relation to pending cases in which the facts arose before the end of the implementation period. Furthermore, continuing participation in EU agencies could entail automatic acceptance of the European Court’s decisions.

The Government say that they are going to save the European Communities Act in part. That is all very well but, as I said in my presentation of the arguments last Wednesday during the European Scrutiny Committee’s proceedings with Mr Olly Robbins and the Secretary of State, the reality is that within a mere 14 days of the European Union (Withdrawal) Act 2018 receiving Royal Assent, a White Paper was introduced on saving parts of the 1972 Act even beyond the implementation period in circumstances that I find not just weird but thoroughly unacceptable.

[John Redwood]

Paragraph 89 in chapter 1 of the future partnership White Paper says:

“The UK will seek reciprocal arrangements on the future rules around some defined elements of social security coordination.”

Does my hon. Friend share my fear that that may also involve jurisdiction over our banking system?

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[Sir William Cash]

That is part of the same problem. I am afraid that there are some really very difficult questions that Ministers and the Government have to answer. I put all this to the Prime Minister immediately after 6 July, when the Chequers proposals came through. I questioned whether we could in fact reconcile the Chequers proposals with the European Communities Act 1972, and the reality is that we cannot. We may then say that we have an agreed implementation period to give certainty to businesses. However, as I pointed out in an intervention, it does not create certainty for business on product standards, for example, because anyone who knows anything about the workings of the European scrutiny system knows that decisions are quite often taken by officials in such things as working groups and then are effectively rubberstamped by Ministers. Furthermore, under the existing arrangements, decisions are taken behind closed doors without any transcripts of the proceedings.

Businesses need to wake up to this. They are told that they will have greater certainty, but do they really know and understand anything about how the system functions in practice? In practice, decisions are taken by consensus, because everybody knows what the outcome will be before they even walk in the room, but we will not even be there in relation to the common rulebook, so how can the Government provide business with certainty when they do not know what changes might be made to that rulebook? Moreover, people in business will have absolutely no idea why changes are being imposed on them because there is no transcript of proceedings.

Furthermore, a problem exists in relation to the scrutiny that will take place, because the so-called provisions of the joint committee represent no more than consultation. There will be no right for us to refuse to do something—I will come to the parliamentary lock in a moment—as the reality is that consultation means no more than saying, “We will listen to what you say,” but it does not mean that anyone will act. Anyone who is foolish enough to believe the European Union, given its background, its bullying tactics and the way in which it has operated over the past months and even before, needs to realise that the decisions will be taken by the other member states and that we will effectively have no real control over them whatsoever. That is a really serious problem.

[John Redwood]

Is not it also the case that, far from ending business uncertainty, the Chequers proposals create another 21 months of perpetual renegotiation, thereby maximising uncertainty?

[Sir William Cash]

That is completely true. I am very concerned about the suggestion that the Chequers proposals somehow or other end up creating more certainty—it is just not the case.

[Peter Grant]

When I was in the Netherlands with the Exiting the European Union Committee a few months ago, we had the opportunity to meet members of the Dutch Parliament’s equivalent committee. Halfway through that meeting, we had to stop because the Dutch Members were called to a vote. The Dutch Parliament had an absolute, binding vote on how its fisheries Minister would conduct himself or herself at an EU Fisheries Council vote later that week. The equivalent process in the United Kingdom is that the European Scrutiny Committee expresses a view, and then the Minister ignores it and does what he or she likes, and nobody can touch a Minister as a result. Is not it the case that the reason why so much EU legislation appears to be done over the heads of the people in the United Kingdom is because it is done over the heads of those in this Parliament? Other EU countries have much better parliamentary oversight of what their Ministers are up to than the United Kingdom.

[Sir William Cash]

I am bound to say that the system in this House involved much more transparency. For example, we do not have decisions taken by Parliaments that are determined by proportional representation. We do not have a system under which there are no transcripts of the proceedings. In this House, the Bills that go through Parliament set out all the provisions, and all legislation is subject to amendment by both Houses. Everything is printed. Hansard is available. Proceedings are filmed and shown on the parliamentary channel. People know where and how decisions are taken. The proposed joint committee will be no more than a consultative operation, and that does not mean that anything will come out of it.

A letter from the Secretary of State was put before my Committee on 5 September—more or less as we sat down that morning—regarding the discussions that we were going to have with Mr Olly Robbins and the Secretary of State. The letter says that there will be a

“working assumption that we would continue with the current model for providing written evidence to the committees through Explanatory Memoranda”.

My Committee is quite clear that that will not be anything like early enough. We want to know that we are going to get an explanatory memorandum at a very early stage. With regard to the scrutiny of the EU’s legislative proposals during the proposed joint committee procedure, the Secretary of State goes on to say:

“we will work closely with Parliament to agree upon a scrutiny system which, in the first instance, facilitates Parliament’s role in scrutinising EU proposals that may affect the UK during the implementation period.”

There is nothing, of course, about the fact that the process will go on afterwards. This is a pig in poke. We do not know what the scrutiny system will be, but we are being asked to approve it. Today’s debate is just a foretaste of what is to come. Working closely with Parliament to agree a scrutiny system but not actually telling us how the joint committee will work in practice is absolutely fundamental in this debate.

In the letter, the Secretary of State goes on to say:

“Given the way the EU’s legislative process works, most Council directives and regulations which will come into force during the implementation period have already been agreed or are being negotiated now, while the UK is still a Member State.”

Now, I know that the Minister referred to that point in her opening statement but, unfortunately, this does not deal with changes to the rulebook.

Let us suppose that it is the case that the 27 member states—with us not even at the table—will be able to make changes themselves and then effectively impose them on us, and that we are going to have a committee system. That system has not yet been agreed with us, and the details of it are extremely obscure but involve no more than consultation. If that is the case, when the negotiation of treaty obligations has been completed and we have entered into international obligations, which is what this will amount to, how on earth are we supposed to accept it when we—or the Committee or Committees scrutinising those questions—are then told, “Oh, this has all been agreed by international obligation behind closed doors”? We will have accepted the fact that that something will happen, but we will not actually be in a position to do anything about it at all. We are not merely buying a pig in a poke; we are also being bound and shackled by European law, and I have not even touched on the question of the arbitration arrangement.

Although I am in favour of arbitration in principle, the real question is whether it will be subject to European Court of Justice interpretation. I do not have time to go into all that today, but I simply put it on the table that that is a really serious problem. I know that the matter is currently under discussion, but it looks very much as if we will be buying into a reshackling of our Parliament and our businesses. The certainty that is being offered would be absolutely catastrophic if, in fact, the process went wrong and rules were imposed on us. That is what I am most concerned about in this context.

As for the parliamentary lock, the Prime Minister herself, in a pamphlet published by Politeia in 2007, was very explicit about the failures of the European system of oversight in the UK Parliament. Anyone can read it for themselves. All I am saying is that it is absolutely catastrophic. I have been on the European Scrutiny Committee for 33 years, and not once in all that time—and certainly not at any time before that—has Parliament ever overturned an EU decision that has been taken in the Council of Ministers. What confidence could we possibly have that that would ever happen, particularly as the Prime Minister said herself in her pamphlet that parliamentary sovereignty in this context was a fiction?

It is all very well to fall back on the concept that under our constitution we have the power to overturn legislative arrangements by Act of Parliament—that no Parliament can bind its successors and the rest of it. However, if, in practice, as with the European Communities Act in the first place, we voluntarily agree that we are going to accept what is being done, that situation is made worse by the context—a referendum in which the British people agreed by common consent that we will leave the European Union, with the Government accepting that; and the fact that the European Union Referendum Act 2015 was passed by Members of the House of Commons by six to one and the withdrawal Act was passed by 499 to 120, or whatever it was. It is crystal clear that we should be in control of making of our own legislation on our own terms, not supplicants to the European Union.

What this is all about is that we are supplicants to the European Union, and I put that to the Secretary of State and Mr Olly Robbins. We are going to the European Union and saying, “What is it that you are prepared to give us?” And that is just not good enough. I say that because, apart from anything else, under this White Paper, the scrutiny process—during the implementation period and even afterwards—leaves us extremely exposed. That is the problem. It leaves us in a position whereby we are effectively engaging in a form of legal re-entry into the European Communities Act 1972. I do not believe—I have to say this in all candour—that the Government did not know that. I believe that they did know it, unequivocally, before the repeal of the ’72 Act was passed via the withdrawal Act’s Royal Assent. No one is going to kid me that the White Paper, which was produced 14 days later, did not get written in anticipation that we were going to repeal the ’72 Act through section 1 of the withdrawal Act at the end of June but then end up undermining that repeal within a matter of 14 days. I find that absolutely extraordinary. It was Chequers that did it. Up until Chequers, I was 100% behind the Government. Chequers ended up undermining the basis of the collective responsibility, as I understand it, of members of the Cabinet, because they did not know about that either.

I come back to the simple point: this is an unacceptable arrangement. We do not know how the joint committee will operate. We have no confidence whatever that it is going to be more than a mere consultation, and what is COREPER going to be doing about all this in the meantime?

There is much more that I could say, but others want to speak. I regard this as a very, very serious breach of trust. I am afraid that that is the basis on which I approach this debate. I think that a lot of people outside—the punters; the real people of this country—know and understand this. We decided on 23 June 2016 that we would leave the European Union. We did not agree that we were going to come back with some form of legal re-entry to satisfy the whims of the European Union, and particularly the country that dominates it most—namely, Germany.

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[Sir William Cash]

Of course, there is a simple reason for that. First, Germany calls all the shots in the European Union; and secondly, it hides behind the euro currency and therefore has an enormous trade advantage, as Mr Trump has identified. That is demonstrated by Office for National Statistics figures that show that we run a deficit with the EU27 member states of about £80 billion, and Germany has a surplus of £104 billion a year.

[Peter Grant]

An alternative explanation might be that Germany has had a succession of Governments who actually believe in investing in the long-term stability and sustainability of its economy, whereas the United Kingdom, for decades, has not had Governments with the ambition, the imagination or the long-term vision to do so.

In answer to a question from an Opposition Member about the 65 trade deals that we are currently party to, thanks to our membership of the European Union, the Minister suggested that the European Union has already agreed that all those 65 deals will be extended to a non-EU member after we have left. Well, the European Union might have agreed to do that. However, it does not have the right to do it unilaterally, because every one of those 65 deals has got somebody on the other side of the table, so the second signatories to all those 65 deals will have to be asked if they agree as well. Some of them will agree, but if any one of the 65 says no, we are immediately in a worse bidding position than we are as part of the European Union. Anyone who suggests that we can replicate all those 65 trade deals by March 2019 or December 2020, or at any time when most of us are still active in politics, is being wildly optimistic. It is almost as ridiculous as suggesting that these negotiations will be the easiest trade deals in history and it will be all done and dusted within six months.

We hear all the platitudes from the Government. The latest buzzword is “broadly”. It used to be that EU nationals living in the UK would have “approximately” the same rights as they currently have; now they are to have “broadly” the same rights as they currently have. I do not want them to have broadly the same rights; I want them to have exactly the same rights. In fact, I want them to have at least the same rights, because in some areas they should have more rights than they have just now. The Minister did not give way when I wanted to ask a question earlier, so I hope that her colleague will tell us explicitly, without any prevarication, what the Government mean when they continue to say “broadly” the same rights. Will he give us the specific areas in which EU citizens currently living in the UK will have fewer rights after we leave the EU than they have just now? These people are entitled to know which of their rights they will lose that are being hidden behind the word “broadly”, which the Government have started using all the time.

There has been mention of the question of the Irish border. Like other speakers, I find it astonishing that the only way that some people, including a growing number on the Government’s hard Brexit side, can reconcile what is happening is just to pretend that the problem does not exist. We are told that people are using false concerns about the Irish border to play out some kind of clandestine political agenda.

I remind Members about a couple of things that this Government willingly signed up to in December last year, as part of the joint report with the European Union—namely, that the United Kingdom will accept in all regards that the Republic of Ireland will continue to be a full and integral member of the European Union for as long as the Republic of Ireland wants to and that the United Kingdom will accept that the Republic of Ireland will and must comply with all aspects of European Union law. The United Kingdom has already committed itself to accepting that the Republic of Ireland is bound by European law as it applies to the enforcement or the observance of the European Union’s external borders.

The Republic of Ireland would love to get an agreement endorsed by the rest of the European Union that allows the border to be kept as it is now. The Republic of Ireland does not have the option of doing what so many Government Members blithely suggest, which is to sweep aside EU border legislation unilaterally, by keeping an open and uncontrolled border, contrary to European law and contrary to the commitments that this Government have already made. Let us have no more of this nonsense of trying to blame the Republic of Ireland for a mess that has been wholly created by the UK Government. Let us have no more of this nonsense of saying that somehow the European Union is usurping British sovereignty over Northern Ireland by trying to force a backstop agreement that the Government do not want.

As I said in an earlier intervention, the UK Government undertook in December last year to bring forward specific proposals for a solution to the question of the Irish border that would comply with all the requirements of Ireland’s continued membership of the European Union and with all the requirements of the Good Friday agreement and the peace process. In the intervening period since December 2017, the UK Government have utterly failed to live up to that promise. That was why the European Union brought forward a solution that I do not think it thinks is particularly good, but it was a desperate attempt to get the UK Government to put their money where their mouth is and bring forward one of the specific sets of proposals that they had willingly promised to produce as a basis for discussion.

Again, let us have no more of this nonsense of claiming that somehow there is a conspiracy between the Irish Government and the EU to take Northern Ireland away from Britain against the wishes of the people of Northern Ireland. The European Union will support the Republic of Ireland because the Republic of Ireland is a member of the European Union, in exactly the same way as the European Union would support the UK in a trade dispute, border dispute or customs dispute with any non-EU member if we asked it to.

I am asking the Minister who sums up to confirm in terms that the UK Government still respect absolutely and unreservedly the sovereignty of the Republic of Ireland and its position as a full and integral member of the European Union, because too much of what we have heard being supported by Conservative Members appears to undermine that position.

Let us not forget that the people of Northern Ireland have spoken twice on this issue. When they spoke in 2016, they said, “We want to stay in the European Union.” When they spoke in the referendum on the Good Friday agreement—which did not bring peace to Northern Ireland, let us not forget, but it certainly brought peace a lot closer than it was before—the agreement reached at that point was that nobody could take Northern Ireland out of the United Kingdom against the wishes of the people of Northern Ireland and that nobody could force Northern Ireland to stay in the United Kingdom against the wishes of the people of Northern Ireland. How on earth is it within the spirit of that agreement for anyone to take Northern Ireland out of the European Union against the wishes of the people of Northern Ireland, especially when it is becoming increasingly clear that it is difficult, if not impossible, to deliver the kind of Brexit the Prime Minister is obsessed with without having to go back on some of the promises that have saved so many lives on both sides of the Irish border over the past number of years?

The Irish border question cannot be easily solved if Northern Ireland is out of the EU and the Republic is in. It can be very substantially solved within the terms of the question that was on the referendum ballot paper if the Prime Minister is prepared to see sense, listen to sense and listen to the businesses and so on that the right hon. Member for Carshalton and Wallington was accused of not supporting. Those businesses are saying to us, “Why in the name of goodness are we coming out of the customs union and the single market?” Customs union membership makes the solution to the Irish border question so much easier and so much more achievable. If that was the only benefit of being in the customs union, I would say to the Government that they should at least think about it.

People did not vote to leave the single market or the customs union. They voted to leave the European Union. [Interruption.] I still have a photograph of the ballot paper at home, if Members want to see it; it does not say anything about the single market or the customs union. We do not really know how many of the 17 million people who voted to leave wanted us to leave the customs union and how many wanted us to stay in it. How does the Minister think Members should vote on the deal, assuming a deal is brought back, if they want to respect the wish of the majority—the majority being the 16 million who wanted to stay in the whole package and the unknown but undoubtedly significant number who wanted us to leave the European Union but not the customs union and the single market? Which option is the Minister saying we should support? Should we vote for a proposal from the Government that will involve us leaving the customs union and the single market on a rotten deal, or should we vote for a proposal that says we will leave the single market and the customs union on no deal at all? That is not a choice that respects the sovereignty of the people or, indeed, the alleged sovereignty of Parliament.

If the Minister is as confident as she appeared that the deal brought before the House will be one that we can all enthusiastically get behind, why do the Government not commit to make that vote a proper, meaningful vote, with alternatives for those who do not want the Prime Minister’s deal because it is too destructive and who do not want no deal? If the Government are so confident that we will accept the deal anyway, why not offer to put a third option to Parliament, which is to let the people decide? If we cannot agree what the people really meant about leaving the customs union, borders in Ireland, passport queues at Brussels and all the rest of it, why not ask them again what they really meant?

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[John Redwood]

From conversations, watching opinion polls and listening to the national conversation. I do not know about the hon. Lady, but I take my politics seriously and I regard it as my job to listen, to read, to understand and to consult colleagues. I find that coming into the Chamber is quite a good way of judging the mood because sometimes Members of Parliament, even those on the Labour Benches, know the mood in their constituencies.

[Sir William Cash]

Will my right hon. Friend remind the hon. Lady and the House that a pamphlet was put out by the Government during the referendum campaign that explicitly said, “This decision will be yours”? There was no question of its being decided by Members of Parliament. We operate by a system of parliamentary government, not government by Parliament.

[John Redwood]

Indeed, but let us press on.

My worry is about the Chequers proposal—and it is only a proposal; it is not a deal or an agreement—which was set out in the future relationship White Paper, and the consequent White Paper about how such an agreement, were one to arise, would be handled and implemented by this Parliament. My worry, and I think it is the worry of many leave voters and some remain voters, is that, having voted to get rid of treaty law—to dismiss the European Union treaty because we had not enjoyed living under its tentacles—the Government now suggest we need another two European treaties to replace the one that we are getting rid of. We are mightily suspicious of treaty law. Why are we so suspicious of it? Because the original treaty, the treaty of Rome, masqueraded as a free trade agreement, which is how it was sold to the British people in the long-distant 1975 referendum, but by accretion and development, over which the British people had no control, it changed—through Nice, Amsterdam, Maastricht and Lisbon—into a massive panoply of laws and controls and completely changed our constitutional structure, without the people ever having a proper vote on that process until the most recent referendum.

We know from our experience here that this became what I call a puppet Parliament. In dozens and dozens of crucial areas where we might like to legislate, we had no power to legislate independently of the European Union whatsoever. In all those massive areas—not just trade and business, but the environment, social policy, employment policy and even foreign affairs—we had to legislate in the way the European Union laid down. Quite often, many Members of Parliament and many members of the public disagreed with that way. Quite often, it was an area where the Government had either lost a vote or did not bother to hold one because they knew they were going to lose as they were in disagreement with other member states. It was that above all else that the British public rejected in the historic vote in 2016. They said to Members of Parliament, “Collectively, you often make a mess, we don’t always approve of you and we are very critical of you, but you are our MPs” and the joy the public have is that they can fire us if we really annoy them or we get it wrong, whereas the European Union often strongly annoys them and gets it wrong and there is absolutely no one they can, directly or indirectly, have fired because it is a system that the UK cannot control and has to receive. We are, therefore, very suspicious of the idea of more treaty law.

One of the things that makes this debate very difficult for a neutral observer to come to a sensible view on is the abuse of language and the scare stories that seem to characterise most of what passes for debate on these important issues. I do not for one moment believe that there is a cliff edge and I do not for one moment believe that we would leave the European Union with no agreements. There will be lots of agreements. We have always had lots of agreements: there are lots of business-to-business agreements, business-to-individuals agreements, business-to-Government agreements and even Government-to-Government agreements. Once we have left the European Union properly, I am sure that there will be a lot of diplomacy, discussion and joint action, but we want it to be bilateral and based on the merits of the case as we proceed each time. We do not wish it to be multilateral through the EU, where the EU has special legal powers that mean that it has duress over us or can prevent us from having a weighted dialogue with the EU and reaching an agreement if we wish and not if we do not.

The structure of what the Government are now proposing is quite alarming. The EU withdrawal agreement would take the form of an international treaty, which would of course need full ratification by Parliament in the way that has been laid out. However, if it was agreed with the EU and then subsequently ratified by this Parliament, we would be back in the position where European law had more significance and for the whole of the transition period we would of course be completely back under the control of the European Union. As my hon. Friend the Member for Stone (Sir William Cash) has pointed out, we would be even more vulnerable than we are today because the EU could legislate in our absence. At least we can see them annoying us at the moment around the same table, whereas we would be in the position where they could simply do it without consulting us or taking into account our views.

Therefore, that is not a good idea, but even worse is the proposed legal form of the so-called future partnership agreement. The UK Government call it a partnership agreement, but I think what the EU proposes, and would call it, is an EU association agreement. Such agreements are normally very comprehensive, and we can see exactly what they look like when we read the one for Turkey or for Ukraine. They have been designed by the EU to lock in countries that would like to become members but are not yet fully compliant with all its legal requirements, standards and so forth. They are used to drag those countries gradually into compliance—usually willingly, because they want to join.

We want something completely different. We want agreements on how to proceed in various areas, but we are going in the other direction. We do not want an agreement that drags us into closer compliance; we want the freedom and flexibility to have our own trade policy, our own fishing policy and our own business policy as time evolves. I am very worried that an association agreement model, rather than allowing that, would reintroduce the powers of the European Court, over which we will obviously have no control, and we would again be under strict control in a number of wide-ranging areas from which the British people wish us to liberate themselves.

--- Later in debate ---

[Mr Rees-Mogg]

The hon. Gentleman is confusing me with the much-maligned late King Canute, who was accused of trying to hold the tide back when, in fact, he wanted to show that it was not possible to do so. The bureaucracy of the European Union is something to which I am strongly opposed, but that does not mean that I do not admire the individual member states and think of them as great countries and friendly allies. The two are completely different. Even if they were the same, while I may have a great friend, I would not want him to rule my life. There is no logical connection.

[Sir William Cash]

If we look around the European Union—at Italy and, most recently, Sweden—many if not most of the other countries are voting with their feet against the restriction on their right to make their own decisions in their own Parliaments.

[Mr Rees-Mogg]

As so often, the United Kingdom is leading by example. To paraphrase that great quotation from Pitt the Younger, we have saved ourselves by our exertion and we will save Europe by our example. We should always remember that as we make this great exertion—this worthy and noble exertion.

To have a period of 21 months, however, during which our senior law in this country cannot be stopped and our senior court is the European Court of Justice is a great mistake. It is an aspect of the legislation for which I, for one, will find it extremely difficult to vote, because there was another way—an alternative route. In terms of the courts, it is what we do with our own courts in relation to human rights challenges.

If the domestic court—the Supreme Court—decides that a bit of primary legislation fails to meet the requirements of the Human Rights Act 1998, there is a fast-tracked way of amending legislation through statutory instrument. That means, however, that if the House of Commons is against the change and wills to make the move that is against the Act, it is free to do so. That maintains control under our democratic processes, and that is how the Government should be proceeding in relation to judgments of the ECJ—or the CJEU, if you prefer—during the implementation period. We would, in the normal course, want to accept them, because we would still have treaty obligations, but they should come to Parliament to be passed into our law by statutory instrument. That would give us a straightforward reserve power not to act it if we felt that the proposal was not the right thing.

Equally, the same should apply to new laws. New laws being made by the European Union, over which we will have no say, could do specific damage to areas of our interest. There could be laws affecting the City of London, in which I have certain interests—I draw people’s attention to my relevant declarations in the Register of Members’ Financial Interests. They are not just my interests, however; they are the interests of the nation at large, and we want to protect them and to prevent unfavourable legislation over which we have no control from being passed.

What is Her Majesty’s Government’s best defence of this ability of a foreign set-up to make laws for this land, which is something that I cannot think any country has ever voluntarily agreed to before? Countries have become colonies, but normally that is after a little encouragement, usually at the end of a bayonet, spear or some such. It is most unusual—unprecedented, in fact—to volunteer to allow a foreign organisation to make one’s laws.

Future Relationship Between the UK and the EU

William Cash Excerpts

Wednesday 18th July 2018 Commons Chamber

[Sir William Cash (Stone) (Con)]

I am glad to follow the right hon. Member for Leeds Central (Hilary Benn) because he talked about sovereignty, although he rather distorted the focus of it, to put it bluntly, and I will explain why in a moment.

Brexit is ultimately about our democracy, our sovereignty and our self-government. All the other issues, including our right to free trade with the rest of the world, are subsidiary to the questions of sovereignty, self-government and democracy because they flow from them. This is the ultimate test. To get our sovereignty and our democracy, and to get it right, we must govern ourselves. I am deeply concerned about the White Paper and the Chequers settlement for that reason, and I will set out what I believe will be the practical outcome.

We have managed to achieve something quite remarkable, which is to turn the gold of democracy into the base metal of subservience—a new kind of alchemy. In other words, we have effectively turned leaving into not leaving in a whole range of areas, despite the repeal of the European Communities Act 1972 and despite the EU withdrawal Act itself, the promises made in the Conservative party manifesto and, of course, the result of the 2016 referendum.

The European Scrutiny Committee, of which I have the honour to be Chairman, unanimously criticised the Government a few months ago. We argued that they are supplicating themselves to the EU and accepting its guidelines, contrary to our lawful departure under article 50, which gives us the legal authority to leave under the treaties. That is a massive strategic mistake. We have summoned Mr Olly Robbins to appear before our Committee and, although the Prime Minister originally was not prepared to allow him to come, he will be appearing before the Committee—that was resolved this morning.

[Simon Hoare]

I hear what my hon. Friend says, but is it not the case that, whenever we enter into a free trade agreement with another country, we will abide by the rules and regulations that it seeks to apply to imported goods? The fact that we choose to do so is our choice, as made either by the Executive or by Parliament. Whether we do a free trade agreement with the EU, New Zealand or Japan is immaterial. We will always have to follow the third party’s guidelines and meet its requirements in order to export to that country.

[Sir William Cash]

My hon. Friend is slightly missing the point. I am talking about the legal framework of the EU itself, which imposes on us a requirement, through the 1972 Act, to accept the rules. I will come on to that in a moment, because I believe that what is happening under the Chequers proposal and under the White Paper will, in many respects, make it worse than it is already.

The big picture is about why we had to leave the EU to regain our democracy. The decisions imposed on us through the 1972 Act—those decisions are imposed through the Council of Ministers—as my Committee exposed a few years ago, will in practice be continued under the common rulebook and will continue to be taken by a majority vote of the 27 without our being there. The Prime Minister even wrote a pamphlet about that in 2007 in which she said

“Parliament is supposed to be Sovereign but in practice it is not.”

That will be made even worse under the White Paper. We will have no voting rights, no blocking minority and a mere useless consultation.

The White Paper mirrors the EEA arrangements, which slavishly follow the decisions of the EU Council of Ministers. Furthermore, given that the Government will already have agreed to the international obligations it will have entered into, it is absurd to suggest that under the “threat of consequences” during the scrutiny process, the MPs appointed to a Committee run by the Whips would ever overturn the Government’s agreed rules. The manner in which the common rulebook will absorb European rules and European jurisdiction through the creation by the UK Government of international obligations binding of itself, with the deliberate connivance of the Government and the Whips, will predetermine the outcome of the parliamentary scrutiny when it reaches the Committee. In other words, it will fictionalise real sovereignty. This White Paper is a sovereignty car crash.

As for the European Court of Justice, the former president of the EFTA court—I have just put this to the Prime Minister in the Liaison Committee—clearly stated only a few days ago:

“the UK would recognise that the European Court of Justice is supreme on the interpretation of EU law.”

He went on to say that under the independent arbitration we would agree

“to refer questions to the ECJ”.

The White Paper itself concedes that the UK makes an

“upfront choice to commit to ongoing harmonisation with the relevant EU rules and requirements”.

Thus, the ECJ will determine not only the interpretation, but the outcome of any disputes, so it will be calling the shots.

I wish briefly to turn to the issues of foreign policy and of Germany, which has been very much underplayed for many, many years in this context. Of course we want to work with other neighbours in Europe—I have no problem with that. However, this problem, which has been with us for so many generations—over the past 20 or 30 years—has simply been ignored to far too great an extent. It is clear that Germany calls the shots, and everybody knows it. To see that we have only to look at what has been going on in Greece; what went on in Ireland when it had the crash; and what happened to Italy, whose EU Affairs Minister recently described the euro as “a German prison”.

The reality is that Germany tore up the Dublin regulation, which led to this incredible surge of refugees, some of which were justified and some of which certainly were not. We have seen how Germany broke the stability and growth pact with impunity, but ensured the manner in which it is applied to other European member states. The result has been that the people of Europe are voting with their feet, and it has also led to the rise of the far right, not only in Germany, but elsewhere. That is one of the things I have argued against ever since I first wrote about this in early 1990. Anyone who believes we could remain in the present EU, from which we have escaped in the nick of time, is simply living in cloud cuckoo land.

I wish to add something about those who would want to reverse this process, although I am not pointing the finger at anybody or any group of people in particular. I have heard of rats leaving a sinking ship but never of rats trying to sink a leaving ship. We really must leave this EU, above all else. We need to regain our democracy and our self-government, and not be dictated to by qualified majority vote, which we have mistakenly accepted for 40-odd years. We live in a world of massive change. We now have the opportunity to decide our own history, our own future, our own economy and our own destiny. People have fought and died for this over generations. We wish to co-operate, but not to be subservient.

--- Later in debate ---

[Paul Blomfield]

I will not, because I have answered the hon. Gentleman’s points and we cannot get into a detailed exchange.

The result of the Prime Minister’s approach has been paralysis, not simply on Brexit but on the other crises facing our country. The Government have neither the authority to deal with Brexit nor the ability to tackle the issues that led to it. There has been a dawning realisation from the Prime Minister that those early red lines were a mistake, but each time she tries to step over them, she has been hauled back by the extremists within her party.

At Chequers, it did seem that the Prime Minister was beginning to face up to the hard facts—to break free from the icy grip of the European Research Group. Not far enough, not soon enough, but tentative steps towards reality, towards a customs settlement and a regulatory alignment demanded by business—a point made by my hon. Friend the Member for Birmingham, Northfield (Richard Burden)—and also necessary to resolve the issue of the Northern Ireland border.

Of course, the former Brexit Secretary was right when he endorsed Donald Trump's view that the plan would “kill” the prospect of a US-UK deal; and of course, it was just a starting point, not the end point of negotiations. It would inevitably involve further movement by the Government. Knowing that, the ERG tore it to shreds, and Monday night’s debacle was the last nail in the coffin. Rather than defeat the amendments—as they could have, overwhelmingly—the Government rolled over and accepted wrecking amendments that left their White Paper dead in the water. The Minister shakes his head, but if there was any doubt about its death, the hon. Member for Wycombe (Mr Baker) laid it to rest today in what was, frankly, a chilling contribution.

While the Prime Minister turns on those in her own party who would welcome the Chequers plan, threatening them, she embraces those who would destroy her, and she continues to bring them into the Government. Having resigned, the hon. Member for Wycombe was succeeded as a Brexit Minister by his predecessor as chair of the ERG, the hon. Member for Daventry (Chris Heaton-Harris) —who, of course, joins another former chair, the hon. Member for Fareham (Suella Braverman). It is beginning to look as if there is a secondment scheme going on between the ERG and the Brexit ministerial team.

[Sir William Cash]

Will the hon. Gentleman give way?

[Paul Blomfield]

No, I will not; I have not the time. I would love to, but I have not the time.

As I say, it is beginning to look as if there is a secondment scheme. So we may yet see the hon. Member for North East Somerset (Mr Rees-Mogg) make his way down to the Front Bench—or perhaps he thinks he has more power where he is.

Sixteen months into the negotiations, the White Paper says that the Government will now

“charge the UK’s negotiating team to engage with the EU’s at pace”.

The time for “pace” was long ago, but better late than never. It is 16 months since the House set the clock ticking, and in three months we need to resolve the deal. Whatever the polls say now, the public will not thank politicians who deliver a damaging Brexit based on false promises.

Without the threats and bullying that Members faced last night, there was a majority across the House in favour of a sensible approach—one that respects the referendum result, one that protects our constituents’ jobs and livelihoods. If the Government are not willing or are not able to deliver that sensible result, in the months ahead it will be the duty of this House to step in.

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

It is a pleasure to follow the hon. Member for Sheffield Central (Paul Blomfield). He talked about what people had been saying two years ago; of course, the leader of his own party was saying two years ago that we should just trigger article 50 and damn the consequences, and we should not worry about planning and preparing.

The White Paper sets out the right Brexit deal—which will deliver on the result of the referendum, and take back control over our money, laws and borders—and makes detailed proposals for a principled and pragmatic Brexit. I thank Members on both sides of the House for their contributions today, and for the many congratulations to my new Secretary of State, to which I add my own. I pay tribute to my hon. Friend the Member for Wycombe (Mr Baker). He will not be surprised that I disagree with much of his analysis, but I recognise his dedication and his passion for this subject. I thank him for his work in our Department, and for his constant courtesy to all our officials.

My right hon. Friend the Member for Sutton Coldfield (Mr Mitchell)—who notified me that, unfortunately, he would have to leave early—spoke about deep divisions on the referendum, but also about the need for people of good will to work together and come together to deliver a successful outcome. I have always believed in that, and it is exactly what we must do in relation to the constructive proposals in the White Paper.

I listened carefully to the right hon. and learned Member for Holborn and St Pancras (Keir Starmer). Both he and the hon. Member for Pontypridd (Owen Smith) included colourful political commentaries in their speeches, but I think that, coming from a party that has experienced 103 Front-Bench resignations, those should be taken with a pinch of salt. He actually had very little to say about the topic of this debate. What he said about the White Paper was based on taking snippets out of context, which I do not think is a helpful or constructive way to debate.

We talked about the proposal for a free trade area in goods. This would be enabled by a common rulebook for goods, including agri-food; participation in EU agencies that provide authorisation for goods in highly regulated sectors; and the phased introduction of a new facilitated customs arrangement. The arrangement would remove the need for customs checks and controls between the UK and the EU as if they were a combined customs territory, enabling the UK to control its own tariffs to trade with the rest of the world and ensure that businesses pay the right tariff or no tariff. Put simply, it means neither the UK nor the EU imposing tariff barriers on one another that do not exist today.

The hon. Member for Birmingham, Northfield (Richard Burden) spoke passionately about the automotive sector. I believe this is an approach that many in the automotive sector, including those I met over lunch today from Bosch, actually welcome and support. They have said that they would want to get a good hearing in EU member states. In combination with no tariffs on any goods moving between the UK and the EU, these arrangements will avoid new friction at the border and protect integrated supply chains that span both territories. We have heard from a wide range of international and multinational businesses that they would support that approach, but, crucially, as my right hon. Friend the Member for East Devon (Sir Hugo Swire) said, it is one that would deliver for many UK small and medium-sized enterprises that are part of the supply chains. We should never forget the importance of those SMEs.

We heard concerns from Government Members about the common rulebook and parliamentary sovereignty. The UK has played a crucial role in shaping the rules over the past 40 years. They do not change very regularly. They are relatively stable and are supported by a large share of our manufacturing, agricultural and farming businesses.

[Sir William Cash]

Will the Minister give way?

[Mr Walker]

I cannot. I am afraid I do not have the time to give way.

High standards in food and product safety are something all our constituents value. As we saw around debates on the TTIP negotiations, our constituents are unlikely to want any trade deal or arrangement that lowers standards. As my hon. Friend the Member for Basildon and Billericay (Mr Baron) pointed out, both the Government and Opposition parties were elected on a promise that we would be able to strike international trade deals. That is a very important point. Our proposals, unlike those from the Opposition, will allow the UK to negotiate new international trade agreements in line with our priorities and interests, including on goods, services and investment. This could include arrangements with the United States, Australia and New Zealand. The UK will explore accession to the comprehensive and progressive agreement on the Trans-Pacific Partnership, consistent with our future relationship with the EU and domestic priorities. In that context, my right hon. Friend the Trade Secretary recently announced the first public consultations on our future trade agreement negotiations with global partners, which we were not able to do in the TTIP context because that was a negotiation conducted on our behalf by the European Union. I sat on the Business, Innovation and Skills Committee with the hon. Member for Sheffield Central when we scrutinised those proposals at one remove.

I have talked a little about goods. I want to address the important point on services raised by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill). We want a comprehensive but different deal on services and digital, which allows us to exercise greater regulatory freedom in an area where the UK is a world leader. This will not involve adopting a common rulebook for services, as proposed for goods. Instead, we are seeking an ambitious deal for services, which will, among other things, minimise new trade barriers to service provision, allow UK firms to establish in the EU and cover mutual recognition of professional qualifications. On financial services, we are proposing a new economic and regulatory partnership in financial services. That makes sense because, unlike goods, services are not affected by frictions at the border. They are not subject to tariffs or customs. Unlike the vast majority of manufactured goods and agri-food products, most services are not subject to specific standards and regulatory frameworks. The UK is a world leader in services and in the regulation of services. I suspect we will continue to be so.

The Government’s proposals deliver a balance—the right hon. Member for Leeds Central (Hilary Benn) called for a balance—that respects the result of the referendum and the decision of the UK public to take back control of the UK’s laws, borders and money, while supporting growth and maintaining security co-operation. Importantly, they safeguard the constitutional and economic integrity of the UK while reclaiming the UK’s sovereignty. They protect our economic interests, supporting supply chains and jobs all over the UK, and delivering global opportunities for trade.

The UK will leave the European Union in March. The proposals in the White Paper mean that as we leave we will be a close friend, ally and partner of the EU and a major market for it. Our economy will continue to be strong.

Question put and agreed to.

Resolved,

That this House has considered the future relationship between the United Kingdom and the European Union.

EU: Future Relationship White Paper

William Cash Excerpts

Thursday 12th July 2018 Commons Chamber

[Sir William Cash (Stone) (Con)]

I am deeply worried about the proposals I have read already in the White Paper and in the three-page document that we received the other day, for this reason. On the issue of the sovereignty of Parliament, we passed the European Union (Withdrawal) Act 2018, which repeals the European Communities Act 1972, but under the proposals as I read them—the so-called parliamentary lock, and compliance with a common rulebook—for dealing with regulatory rule taking from the EU and the discussions that will place around it, page 91 of the document tells us that rule changes will be scrutinised

“in accordance with normal legislative procedure”,

and that “Parliament could decide” not to enact them. I understand what that is getting at, but if I may say so, I assure the House, as Chairman of the European Scrutiny Committee and having been on that Committee for 33 years, that never in my experience—despite what was promised in the White Paper in 1971, before the 1972 Act—has there ever been an occasion when the House has overturned a European regulation, which puts me on serious caution. I therefore have to ask: how would this system work in practice, would it be Whip-ridden, and would the so-called parliamentary lock be burglar-proof?

[Dominic Raab]

I thank my hon. Friend for his comments and pay tribute to his huge experience in this area. On parliamentary scrutiny and the UK’s ability to control any changes to the common rulebook for goods, as I said, let us be clear that we would expect to have a proper dialogue about any changes that were made on both sides and there would be a parliamentary lock to ensure proper democratic oversight in translating those changes into legislation in this country. If this House and Parliament decided not to do that, that would have consequences for the agreement, and that would feed back into the review mechanisms and dispute resolution mechanism that we have carefully tailored. We have sought that balanced approach to ensure we have consistent interpretation of the rules that we will apply in that area, while retaining democratic oversight in this House.

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—

--- Later in debate ---

[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—

European Union (Withdrawal) Bill

William Cash Excerpts

Tuesday 12th June 2018 Commons Chamber

[Matthew Pennycook]

I am going to make a bit of progress.

However, we also recognised in Committee stage that there were other requirements needed to ensure that Parliament has a meaningful vote, one of which is the need for a vote on a statute. That is why we supported amendment 7 in the name of the right hon. and learned Member for Beaconsfield (Mr Grieve) and other hon. Members—an amendment that ultimately passed in this House by 309 votes to 305. That amendment took a slightly different approach in that it was quite deliberately aimed at restricting the use of, and limiting the potential abuse of, the extensive and wide clause 9 power in the Bill as it then stood.

[Sir William Cash (Stone) (Con)]

Would the hon. Gentleman care to reflect on the fact that the decision to transfer the vote to the people was done quite deliberately and voluntarily by this House by six to one, as a sovereign Act of Parliament? Any attempt to reverse that is in defiance of the decision that was taken by Act of Parliament.

[Matthew Pennycook]

The hon. Gentleman makes the same point as many others have done, and I have dealt with it in saying that their lordships’ amendment is not about overturning the referendum result. [Interruption.] No, it is not—not at all. It is about giving Parliament a say in shaping the direction under one scenario that could well occur.

--- Later in debate ---

[Mr Kenneth Clarke]

Thank you for calling me, Mr Speaker. I will try to be as brief as I can. Everybody knows that that is an effort for me, but I really will try to be positively terse where I can, and I am afraid that if I give way at all, it will be very briefly. That is only right, because the programme motion we have just passed, which I voted against, allows just three hours for debate on this whole group. I am well aware that hundreds of Members will find it almost impossible to get in, and therefore if I abuse the privilege you have given me, Mr Speaker, I should cause a great deal of damage to the quality of the debate.

First, let me say that I have never known an issue of this importance to be taken in this way. I remember being in debates on the European Communities Bill back in 1972 and in debates all the way through Maastricht, when there were hours and hours of debate and repeated votes before the approval of this House was obtained. Nobody throughout would have dreamt of arguing that as part of the process, the House of Commons could be excluded and the Government could be given an absolute privilege to proceed. Such a suggestion would have been treated as a complete absurdity.

[Sir William Cash]

Will my right hon. and learned Friend give way?

[Mr Clarke]

I will not, I am afraid, because had the suggestion been put to my hon. Friend during the Maastricht debates that if the Government got defeated on a resolution, they could take it over on their own and let Parliament know in due course what was going to happen, I do not think he would have welcomed it. I understand that we are in a different position.

[Mr Clarke]

I thought my hon. Friend and I had debated this quite long enough for everybody already, but I will give way to him.

[Sir William Cash]

Will my right hon. and learned Friend explain whether he believes it is possible, with the meaningful vote, to manage to maintain the Brexit process? Does he not accept that the effect of the meaningful vote is actually to reverse the Brexit process, and furthermore, to use a certain expression, that it is completely failing to understand the nature of the amendments to suggest otherwise?

[Mr Clarke]

I am grateful my hon. Friend—he is a genuine personal friend, and always has been—and he has brought me to the point I was moving on to.

This debate is being dominated, as far as the Brexiteers are concerned, by the argument that the amendment on the meaningful vote—Lords amendment 19, as amended by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve)—is really an attempt to get around the referendum. For the past several months, I have found that I am told on practically every subject, when the details get a little difficult and the argument gets a little odd, “Ah, you’re not accepting the will of the people.” I first faced that when I opposed our withdrawal from Euratom, and I still do not believe that the public voted for that.

For the avoidance of doubt, as I have repeatedly made clear, I was on the losing side in the referendum—much as I regret it—but after the majority on article 50, we are going to leave the European Union. I have not joined the campaigns to have a second referendum, and I hope I do not live to see another referendum on such an important subject in my lifetime. The fact is that the key decision was then taken, but I will not go back over the quality of the debate and the arguments put forward by the leading figures on both sides that then dominated the national media.

Once the decision was taken by this House, on invoking article 50, that we are leaving, hundreds and hundreds of detailed questions arose about what new arrangements we are going to have for our relationships with the European Union on a huge range of subjects, some of which we have scarcely looked at at the moment, and for our relationships with the rest of the world, because all our trade agreements are based on the European Union as that is how we have entered into them for the past several decades.

The idea that the yes/no vote—leave or remain—on referendum day actually decided each and every issue that now arises, if I may say so to people for whom I actually have respect, is, frankly, intellectually lazy. It is a refusal to engage with what we are actually talking about. I realise that many of the public are exasperated. The prevailing mood among the public is, “What are they all doing, and why don’t they get it over with?” I am sorry about that, but the fact is that leaving poses a lot of questions. I do not think that most members of the public feel that their vote decided the issues we are talking about today in relation to parliamentary scrutiny and control. I am only guessing, but if we had said, “Of course, if you vote leave, you are giving the Government the absolute right to do what they wish in the negotiations and come to whatever agreements they want,” I do not think it would have been easy for my right hon. and hon. Friends to get a majority for such a proposition.

Let me get on to what we are really talking about, because I have already taken longer than I wished. As I have said, any suggestion that Parliament should hand over absolute discretion to any Government to handle such things would have been treated with absolute outrage, not the usual cheers and counter-cheers, expressed to any Minister who dared to do so. It is said—the hon. Member for Bassetlaw (John Mann) is persuaded by this, but I do not agree with him—that the next argument we will face is, “Well, what you’re saying is that the House of Commons should take over the negotiations.” Of course we are not. I quite agree that that is a ridiculous proposition.

The Lords amendment was proposed by my right hon. and learned Friend Lord Hailsham. As we are all aware, he and others gave a lot of thought to putting together a parliamentary process that would be practicable and workable; the drafting might be improved, but the Government could have done that if their lawyers thought it was worth while. My right hon and learned Friend had in mind that a further resolution would be required, but this second resolution, after the proposed settlement had been rejected, would of course be moved by a Minister. The amendment tabled by my right hon. and learned Friend the Member for Beaconsfield makes that even clearer. The idea that we would have a mass meeting of 650 people to decide what resolution to put forward is not postulated in the Lords amendment, and nobody is suggesting that.

--- Later in debate ---

[Mr Grieve]

I am grateful to my right hon. and learned Friend. I think that we will hear more about that as the debate unfolds.

[Sir William Cash]

Will the hon. Gentleman give way?

[Mr Grieve]

No. I am sorry.

Let me end by saying this. The idea that it is wrong, in a crisis, for Parliament to direct the Government what to do is plainly fallacious. It cannot be right. We are entitled to do that. Of course, if the Government do not want to do what we direct them to do, that is another matter.

--- Later in debate ---

[Mr Leslie]

That is right, and a bird in the hand is worth two in the bush. I suggest that it is far better to have that amendment in the Bill as it goes to the other place, which may decide to tweak or change it following discussions. That seems to reflect what feels like the majority view in the Chamber today on the need for a sense of certainty that something will be done. This is not just a matter of one Minister, because a Minister’s word can be given and then changed—

[Sir William Cash]

Will the hon. Gentleman give way?

[Mr Leslie]

No, I will not give way.

Ministers can come and go, but we across this Chamber need that level of certainty. We of course accept the fact that there will be further discussions. The question about taking back control was put to us consistently throughout the referendum. As someone was saying earlier, we obviously cannot call hon. Members hypocrites, but we can point out the hypocrisy in general of the argument of those who might have said in one breath that we should take back control and then had the audacity to come here and say, “Oh well, the UK Parliament clearly has to be cut out of this issue altogether.” I know that we were all elected in 2017 on a mandate drawn up subsequent to the referendum. Our mandate, collectively, has a value, and we should not diminish that and pretend that we should be cut out of this process altogether when there are so many things at stake.

This is not a binary question, and I do not believe that the British people voted to take back control from Brussels only to give that control unilaterally and in its entirety to the Prime Minister and her friends. This is a matter for us, and our constituents would expect nothing less than for us to say, “Hang on a minute, what about our jobs in the manufacturing sector? What about the car industry? What about those who work in the financial services sector?” All the people working in those sectors have the right to expect us to do our job with due diligence.

The right hon. and learned Member for Rushcliffe (Mr Clarke) has rightly pointed out that we could find ourselves in a situation in which no deal is reached because the discussions and negotiations have collapsed. There is no certainty that the motion would then come forward. When the Secretary of State was intervened on and asked what would happen if no deal were to materialise, he said that the Government would come forward with a statement. When he was asked how the Government were going to prevent us from falling over the cliff, no answer was forthcoming. This is an incredibly important point. We have a duty to safeguard our constituents from harm. That harm could affect not only their livelihoods and their jobs but all the revenues that taxpayers pay towards our public services. So if we care about our NHS, we have to ensure that there is a safeguard in place. If we care about schools and council services, we need this insurance policy in place. We should not go through such a crucially important issue without those particular safeguards.

--- Later in debate ---

[Sir William Cash]

I am somewhat troubled by what the hon. Member for Nottingham East (Mr Leslie) just said, not least because he wants to kick the matter back to the House of Lords. I thought that the whole argument in respect of the amendment tabled by Viscount Hailsham was about the primacy of the House of Commons. Why would we go back to the other House and ask the Lords for an opinion when it is this House that voted 6:1 in favour of having a referendum? Furthermore, this House endorsed the decision taken by the people to leave the European Union. That is what is now being put under pressure, and it is complete nonsense—junk—to suggest that the amendment about the meaningful vote is not in fact an attempt to reverse the decision of the people.

[Sir Edward Leigh]

It has been said that the amendment of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) is a compromise, but people should read it. Proposed new subsection (5C) is absolutely clear. It states:

“If no political agreement has been reached”,

the Government must come back for

“a resolution in the House of Commons”.

That is exactly the same thing as in proposed new subsection (5) in Lords amendment 19. It is not a compromise; it is a wrecking amendment.

[Sir William Cash]

I am most grateful to my hon. Friend, because I have the texts of the two amendments in front of me and was just about to make the point that they are not that different. Both state that the Government

“must follow any direction in relation to the negotiations under Article 50(2)…which has been—

(a) approved by a resolution of the House of Commons”.

What on earth is that supposed to mean? There is no way in which this House of Commons—650 Members of Parliament—can arrive at a motion that would prescribe what the Government will do in the negotiations. It is not simply a question whether we are somehow or other departing from normal constitutional procedures; it is that the amendment is complete nonsense and makes no sense.

Furthermore, what would such a resolution say? I heard the right hon. Member for Leeds Central (Hilary Benn), who chairs the Exiting the European Union Committee, talk about the customs union and the single market and so forth. However, the amendments talk about approving a resolution of the House of Commons. Who would devise it? What would it say? How on earth would we get 650 people to agree either on what the motion would say or on what the outcome would be?

I have listened to this debate with great interest, and I must say that this is just a cover for a reversal of the decision. That has to be said, and it has to be said clearly. I find it extraordinary that there should be some attempt to throw the matter to the House of Lords so that they can then tell us—we, the people who are elected by the people of this country, who themselves were given the right by the transfer specifically of the responsibility to make the decision on behalf of themselves, their families and future generations—what to do. This is what people fought and died for, which is who governs this country. I say—[Interruption.]

[Mr Speaker]

Order. The hon. Gentleman must be heard. I have never known him to be shouted down, and now is not going to be the first time.

--- Later in debate ---

[Sir William Cash]

Thank you, Mr Speaker. You did quite a good job to shout down the shouter downers.

The reality is that this is about who governs this country. This country is governed ultimately by an Act of Parliament that gave the sovereign right to the people. It was a deliberate and voluntary transfer and—the primacy of the House of Commons rests in this—it was done by 6:1 in this House. Some Opposition Members did not vote for that referendum.

[George Freeman (Mid Norfolk) (Con)]

My hon. Friend knows that I am not a remoaner and that I am completely committed to delivering Brexit, but he is not being fair to the thinking behind the amendment. Many of us are committed to delivering Brexit. Our fear is this, and the question for him is this. I do not want to tie the Prime Minister’s hands or to put her negotiations in Europe at the whim of this great colourful Parliament. I want her to be able to go and negotiate, but if we were to vote down a deal or have no deal, is his view that the House would then be locked into accepting no deal, or that this sovereign House at that point should have the ability to say to the Prime Minister, “Go back and push harder.”?

[Sir William Cash]

I absolutely disagree with the notion that this House has the right to overturn the decision taken by the people. Furthermore, approval on the terms of the amendment is completely unacceptable. I repeat that the amendment states that the Government

“must follow any direction in relation to the negotiations under Article 50(2)…which has been—

approved by a resolution of the House of Commons”.

That is not acceptable for one simple reason: the decision was taken by the people. We gave them that decision and we have to stand by it.

[Several hon. Members rose—]

Leaving the EU: Implementation

William Cash Excerpts

Monday 29th January 2018 Commons Chamber

[Sir William Cash (Stone) (Con)]

(Urgent Question): To ask the Secretary of State for Exiting the European Union if he will make a statement on the Government’s proposals for the implementation of their policy on leaving the European Union.

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

Just this afternoon, the European Union finalised its directives setting out its negotiating position on the implementation period. On Friday, the Secretary of State for Exiting the European Union made a speech setting out the UK Government’s position. Formal negotiations on this very issue are therefore due to start this week.

As the Secretary of State said on Friday, we will be seeking a strictly time-limited implementation period to allow a smooth and orderly exit from the European Union. This builds on the Prime Minister’s announcement, in her Lancaster House speech in January last year, that there would be a “process of implementation” once the article 50 period ended. It has been supported by businesses both here and in the European Union, which will have to make only one set of changes as we exit the EU. During this period, the UK will be outside the EU. We will have left on 29 March 2019.

This is an absolute necessity. The EU can only legally conclude our future partnership once we are outside it. Such an agreement on the future partnership will require the appropriate legal ratification, which will itself take time. That will need to happen during an implementation period. However, if such a period is to work, both sides must continue to follow the same stable set of laws and rules without compromising the integrity of the single market and the customs union, to which we will maintain access on current terms. Both sides should approach this period in the spirit of our future partnership. That means each side committing itself to taking no action that would undermine the other.

During the implementation period, we will still make our voice heard. We will have to agree on a way of resolving concerns if laws are deemed to run contrary to our interests, and if we have not had our say. We will agree on an appropriate process for this temporary period, so that we have the means to remedy any issues through dialogue as soon as possible. All that will be provided for in the withdrawal agreement that we reach with the EU, which will have the status of a new international treaty between the UK and the EU. We will no longer be formally part of the EU treaties during this period.

As the Secretary of State said on Friday, we have made it clear that during this period we will be able to negotiate and sign our own free trade agreements. Here at home, we have already announced that we will present a withdrawal agreement and implementation Bill, which will provide for domestic implementation of the withdrawal agreement and the implementation period. We have made it clear that as we leave the EU in March 2019, we will repeal the European Communities Act 1972. That will be done through the European Union (Withdrawal) Bill, which recently received its Third Reading in the House of Commons and will shortly be discussed in the other place.

[Mr Speaker]

I call Paul Blomfield. [Interruption.] But not before we have heard from Sir William. I was simply seeking to build up an air of anticipation of the hon. Member for Sheffield Central (Paul Blomfield).

[Sir William Cash]

I am deeply grateful, Mr Speaker.

Given the document to which the Minister has just referred, which was issued by the European Union to the United Kingdom about two hours ago, can the Government reconcile their policy of leaving the European Union with their own implementation proposals during the transitional period? Furthermore, will this apply when EU laws are imposed on us when we will have no say in either the European Council or the European Parliament, and when our courts will be obliged to apply European Court case law without having a judge in that Court?

Do the Government intend to make a new EU treaty? How long is the so-called strict time limit? Given that we are leaving the EU, and therefore the customs union and the single market, and ending the provisions relating to freedom of movement, will the Government reject this new EU ultimatum, including the statement that the European Court of Justice will continue to apply to the UK? Will the Minister reject the idea of the enforcement mechanism set out in the document? Will he reject the suggestion that the European acquis will apply in relation to the United Kingdom, as well as the notion in the document that European Union law will continue to apply to the UK during the transitional period with direct effect and primacy?

Under these arrangements, we will be required to remain in the customs union and the single market, with all four freedoms, and to continue to comply with EU trade policy. Will the Government reject the assertion about the European Union acquis, so that we will not be made subject to supervision and control proceedings under European Union law?

In short, do the Government reject this Council decision as inconsistent with our leaving the EU, which we are entitled to do under EU law itself and article 50 of the Lisbon treaty and which was achieved through the enactment of the arrangements for withdrawal that was supported by 499 Members of this House?

[Mr Walker]

My hon. Friend is right to draw the House’s attention to the fact that Members on both sides of the House have voted to respect the referendum and that the UK should be exiting the EU in accordance with the vote in that referendum. My hon. Friend is a long-standing champion of this issue, and I make it clear that the UK will be leaving the EU on 29 March 2019. We will then have a strictly time-limited implementation period, which will be as short as is practicable—we currently expect it to be in the region of two years.

The answer to my hon. Friend’s first question is yes, but we must make sure that we reconcile these issues through the negotiations to come. He would not, I know, expect me to speak on behalf of the EU and its directives today; I am speaking as a Minister of the Crown, and we enter these negotiations seeking the interests of the UK and making sure that we exit the EU in a smooth and orderly way.

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.

--- Later in debate ---

[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.

--- Later in debate ---

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—

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.