EU Exit Negotiations

William Cash Excerpts

Tuesday 5th December 2017 Commons Chamber

[Sir William Cash (Stone) (Con)]

Does my right hon. Friend appreciate that, whether it is in relation to regulatory alignment in Northern Ireland, or in relation to citizens’ rights in respect of these negotiations, there is a serious danger that the European Court of Justice will get itself into every nook and cranny? There is no way in which it can be contained under article 344 of the treaty or, for that matter, in relation to the interpretation of all the matters I have just referred to.

[Mr Davis]

My hon. Friend, who has a long history of wisdom in this subject—[Interruption.] Wisdom—he saw it before most Opposition Members did. He has a long history with this subject, and he explains better than I could why we said that no divergence is a bad option.

EU Exit Negotiations

William Cash Excerpts

Monday 13th November 2017 Commons Chamber

[Sir William Cash (Stone) (Con)]

Will the Secretary of State confirm that any such withdrawal Bill will take place after the European Union (Withdrawal) Bill has been enacted—in other words after 29 March 2019?

[Mr Davis]

No, I cannot quite confirm that. It will depend on when the withdrawal treaty is negotiated. It is the intention of the Union to try to negotiate that by October next year. Ideally, it will be before the conclusion.

European Economic Area: UK Membership

William Cash Excerpts

Monday 6th November 2017 Commons Chamber

[Stephen Kinnock]

Indeed, during our trip to Dover, we were informed about the impact in terms of rotting food and vegetables on the border. There are practical, tangible impacts that we must bear in mind when it comes to a no-deal Brexit.

The head of the EFTA court, Carl Baudenbacher, has been a vocal advocate of the UK’s joining EFTA permanently or at least as a short-term docking measure —an idea that the president of the European Court of Justice, Koen Lenaerts, similarly advocated over the summer. EEA-EFTA membership is emphatically not the same as membership of the single market or the customs union. The EEA is an internal market that is conjoined with most of the EU’s single market, but it is nevertheless a stand-alone structure with its own legal, regulatory, governance and institutional frameworks.

[Sir William Cash (Stone) (Con)]

Does the hon. Gentleman accept that according to the president of the EFTA court, to whom he has just referred, that court follows the judgments of the European Court of Justice almost exclusively?

[Stephen Kinnock]

The EFTA court exists as a sovereign body. It of course takes some of its guidance from the European Court of Justice. Nevertheless, were the UK to have judges on the EFTA court body, it would clearly have extra clout and the ability to exercise its sovereign right to interpret the guidelines that come from the ECJ in such a way that suits the membership of EEA and EFTA.

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[Sir William Cash (Stone) (Con)]

For a free trade agreement to be possible after Brexit, the interim period must involve no membership of the EEA, the customs union or EFTA, because that would remove the freedom we need to negotiate with third countries. That includes any period in the EEA, being party to the EEA agreement, like EFTA states, or a bilateral Swiss-style agreement. The EEA essentially means membership of the single market and commitment to the four freedoms—free movement of goods, services, capital and workers. Three EFTA states—Norway, Iceland and Liechtenstein—signed the EEA agreement in 1994, but the EEA agreement would mean insufficient freedom for us to be a credible partner in trade negotiations with others. The agreement means taking on the single market acquis, but having no vote on legislation.

Through the EFTA Surveillance Authority, regulation is being harmonised, with EFTA itself stating that

“the EFTA Surveillance Authority and the EFTA court… respectively mirror the surveillance functions of the European Commission and the Competences of the Court of Justice of the European Union”.

The EEA therefore does involve the harmonisation of laws in significant areas of the environment, social policy and so on, in those countries’ domestic economies. It involves the application of ECJ case law by the EFTA court, and I completely disagree with the assertion of the hon. Member for Aberavon (Stephen Kinnock) that it does not. The EEA also includes the free movement of persons. In other words, the European Court of Justice effectively prevails, and our influence over the EEA would be infinitely and hopelessly inadequate.

Let us consider the experience of Norway for a moment. The Norwegian Government commissioned a study of the EEA’s impact, and it found that Norway implements

“approximately three quarters of substantive EU law and policy”.

That makes a mockery of much of what the hon. Gentleman said. Furthermore, the cost of the EEA to Norway has increased tenfold since 1992, and nearly 12,000 EU directives and regulations have been implemented through the EEA agreement and have changed Norwegian society in a significant number of areas. We are told that, on the EU legal database, 17,000 regulations have come to us since we entered the European Union, yet Norway, which is in the EEA, has acquired nearly 12,000 EU directives and regulations.

[Gareth Thomas]

Can the hon. Gentleman tell the House when a Norwegian Government last proposed leaving the EEA?

[Sir William Cash]

The Norwegian Government have consistently made it clear that their position is to stay in but, in practice, the trend of attitudes in Norway is increasingly moving against that position. I was at a conference only last week at which a young Norwegian leader of the people’s movement made it clear that more than 70% of young people in Norway want to get out of the EEA and do not want to join the EU. That is the position, and the bottom line—I do not need to speak any longer on this—is that there is absolutely no case whatsoever for our joining the EEA. Joining is completely contradictory to the mandate that we received in the referendum, which is perfectly clear. It is impossible.

[Anna Soubry (Broxtowe) (Con)]

Will my hon. Friend give way?

[Sir William Cash]

I will certainly give way to—the hon. Lady?

[Anna Soubry]

I am surprised there was a question mark after that bit.

[Sir William Cash]

Right hon., then.

[Anna Soubry]

Don’t worry about the right hon. bit.

I put these words to my hon. Friend:

“the great advantage of the EFTA model is that it is completely independent of the EU yet follows the decisions of the European Court of Justice for the most part, although not always—that is important. I am glad that my hon. Friend the Member for Chelmsford (Vicky Ford) noticed that, because not many people have.”—[Official Report, 4 July 2017; Vol. 626, c. 1059.]

I just wondered, because those are his very words, as recorded in Hansard.

[Sir William Cash]

Indeed, and I entirely accept that that is what the position was at that point in time. The argument has moved on, and the reality is that the mandate from the British people is clear. This House passed the European Union (Notification of Withdrawal) Act 2017 by 499 to 110, or thereabouts, and furthermore the Second Reading of the repeal Bill was passed by a majority, and therefore we will repeal the European Communities Act 1972—that is the will of the House, and that is what I stand on. The reality is that the proposal to put us into the EEA is effectively contrary to the mandate from the British people.

[Anna Soubry]

I gently remind my hon. Friend that he spoke those words in July 2017, long after the referendum. He said them only a few months ago.

[Sir William Cash]

The short answer is that we have a mandate. It has been made absolutely clear, and the European Union (Notification of Withdrawal) Act has been passed by this House. The repeal Bill has yet to be passed, but the decision on Second Reading has made the House’s position absolutely clear to the British people. We are repealing the European Communities Act and withdrawing from the European Union. That is the position, that is the mandate and that is what I stand on.

--- Later in debate ---

[Anna Soubry (Broxtowe) (Con)]

It is a great pleasure to follow the hon. Member for Ilford South (Mike Gapes). I congratulate the hon. Member for Aberavon (Stephen Kinnock) on securing this debate. I was pleased to support him, when, along with the hon. Member for Lewisham East (Heidi Alexander), we went to the Backbench Business Committee to seek this debate. We are grateful that, finally, we have a debate on one of the most important matters that faces this Parliament, and indeed faced the previous Parliament.

I am in an interesting position in that, when I stood again in Broxtowe on 8 June, I made it very clear on every piece of literature and in the emails that I sent out to my constituents that I would continue to make the case and support the single market and the customs union and stand up and advance the positive benefits of immigration. Therefore, unlike many others, I actually have a mandate—some would say a duty—to make sure that I put forward, in the strongest possible terms, the undoubted benefits of the single market. I very much support this motion.

May I quote—these are not my words—from a speech? The task of hon. and right hon. Members is to guess the date.

“The task of government is two-fold: —to negotiate in Brussels so as to get the possible results for Britain; —and then to make you the business community aware of the opportunities, so that you can make the most of them. It’s your job, the job of business, to gear yourselves up to take the opportunities which a single market of nearly 320 million people will offer…what a prospect that is.”

Can Members guess the year? It is 1988. What about the place? It is Lancaster House. From whom did those wise words come? It was none other than the right hon. former Member and Prime Minister, Margaret Thatcher. She was one of the strongest proponents of the single market. Why? Because she knew of the huge and wondrous benefits that it would bring to the economy and therefore to the people of this country. I am old enough to remember when this country was rightly described as “the sick man of Europe”, and we were. When we joined the European Union, embraced the single market and led it by the fine words and actions of Margaret Thatcher, we then rose to become the fifth largest economy in the world. Our membership of the single market and the customs union and our understanding of the positive benefits of immigration have made our country the great economy that it almost is today.

[Sir William Cash]

Does my right hon. Friend acknowledge that, as time progressed, the right hon. Lady to whom she has referred also said that she thought that we had made a mistake in joining the single market and repudiated it, because she felt that she had been misled?

[Anna Soubry]

I must accept my hon. Friend’s words, as I am not aware of that quote. If he were to ask me what Margaret Thatcher would have said about the bureaucracy of the European Union and the fact that we should not join the euro, I am sure that we would all be in agreement, but goodness me, by making our decision in June 2016, have we not thrown away the baby with the bathwater?

I agree with all those who have spoken before me, particularly my hon. Friend the Member for South Suffolk (James Cartlidge), who made a powerful speech about the benefits of the single market and the realities of Brexit. He also made many important points about immigration. We do control immigration in this country. We control it with this thing called the market, because people only come here to work. Now, there is a very easy way for us to control immigration; we can trash the economy and then people will not come here because there will be no jobs. The idea that there is a small army of people who are out of work, sitting at home and begging to be working in the fields of—dare I say?—Lincolnshire or in one of the great food-processing factories in my constituency is a complete and total myth.

We have the highest rate of employment since the ’70s; there is almost full employment in huge parts of the country. Where do we find the highest employment rates? They are in the areas with the highest rates of migrant workers. And where do we find the lowest levels of immigration? In the areas with the highest rates of unemployment. Let us nail that one because, as my hon. Friend the Member for South Suffolk rightly said, that was another con played on the British people. They will see that all the EU regulations about which my hon. Friend the Member for Stone (Sir William Cash) complains are about to be taken into British law, that they will not get their £350 million for the NHS and that immigration will not go down.

People are fed up with Brexit. I think they want us to get on with it. Well, there is a model. It is sitting on the shelf and it will do the job: it is the EEA and it might also be EFTA. It will solve the problem and stop the negotiations so that we can get on, get out, get a deal and give certainty to British businesses. Then this Government can get on with the domestic agenda, as we need them to do.

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[Sir Edward Leigh]

I am grateful to the hon. Lady for making that kind offer, but my problem is that, in these terms, I am a Government loyalist, and I want to help the Government to get this Bill through. That is most important, because if we do not get the Bill through, we will be in a kind of limbo—I apologise for using the expression “a kind of limbo”. All that the Bill does is transfer all the EU laws into our law. I am anxious that we get a generous free trade deal. I am also anxious that we pass all the EU laws into our law, particularly because I do not want us to create a bargain-basement economy—I want us to preserve workers’ rights and to be a gold-class economy. All that the Bill does is transfer all those protections for workers, and many other useful things, into our law, so I will be supporting the Government—

[Sir William Cash]

rose—

[Sir Edward Leigh]

And so, I hope, will my hon. Friend.

[Sir William Cash]

May I refer my hon. Friend to the remark he made about the Labour party looking at this issue both ways? The Labour party did, in fact, vote against the principle of the Bill, which includes the repeal of the European Communities Act 1972, by virtue of which all the legislation and the jurisdiction of the Court of Justice come into effect.

[Sir Edward Leigh]

Of course I note that point, but I must now proceed to the end of my remarks.

I have said what I want to say about parliamentary procedure, and I now want to say a bit—

--- Later in debate ---

[Stephen Kinnock]

This has been an excellent debate and I thank Members from all parts of the House for their contributions, although the Minister’s winding-up speech was deeply disappointing.

We live in a deeply divided country: city versus town, young versus old, graduate versus non-graduate. The referendum did not create those divides, but it certainly gave them voice. An EEA-based Brexit is one that could reunite our divided country: it is a Brexit that provides the basis for avoiding a hard Irish border; it is a Brexit that offers the opportunity for reform of free movement of labour; it is a Brexit that maximises access to the single market; it is a Brexit that removes us from ECJ jurisdiction; it is a Brexit that enables us to strike independent trade deals with third countries; and it is a Brexit that provides the certainty and predictability that our country so desperately needs in these turbulent times.

The clock is ticking and the stakes could not be higher. There is no mandate for leaving the European economic area. It was not on the ballot paper in June 2016 and the result of the 8 June election this year was the final nail in the coffin, surely, for a hard Brexit. A debate and decision on a substantive motion on EEA membership are therefore urgent and desperately needed. I commend the motion to the House.

Question put and agreed to.

Resolved,

That this House believes that for the UK to withdraw from the European Economic Area (EEA) it will have to trigger Article 127 of the EEA Agreement; calls on the Government to provide time for a debate and decision on a substantive motion on the UK’s continued membership of the EEA; and further calls on the Government to undertake to abide by the outcome of that decision.

[Sir William Cash (Stone) (Con)]

On a point of order, Madam Deputy Speaker. My right hon. Friend the Member for Broxtowe (Anna Soubry), I think somewhat inadvertently, made a reference to my interest in EFTA and the model of jurisdiction. What I actually said on 4 July 2017 was by reference to the jurisdiction of the European Court and the EFTA court, exploring whether we could find a viable and proper way to achieve jurisdiction in relation to the issues under consideration. I think my right hon. Friend and I agree that I was perhaps slightly misinterpreted, but I do not want to press the point any more than that. I just want to get it on the record that I was not referring to EFTA as such, but merely to the jurisdictional opportunities it might offer.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I am very, very grateful to the hon. Gentleman for his point of order, and for giving me and the right hon. Member for Broxtowe notice of it. It is not strictly a matter for the Chair, but, as the hon. Gentleman said, he has placed the matter on the record. I think we will leave it there. Everybody is happy, so that is terrific.

EU Exit Negotiations

William Cash Excerpts

Tuesday 17th October 2017 Commons Chamber

[Sir William Cash (Stone) (Con)]

My right hon. Friend has said that in the discussions we have also explored ways in which we can fully implement the withdrawal treaty in UK law. Does that suggest he has in mind legislative enactment of the withdrawal treaty? When he talks about the role of the UK courts, does he mean that the enactment will be overseen by our courts, and not by the European Court of Justice?

[Mr Davis]

A range of models are available for how we bring the withdrawal treaty into British law—British law, not European law—and the key criterion I am applying is that it gives certainty to those EU27 citizens who are here now that their rights will be preserved. It will, of course, be adjudicated by British courts.

European Union (Withdrawal) Bill

William Cash Excerpts

Thursday 7th September 2017 Commons Chamber

[Keir Starmer]

That is exactly the point that was made earlier. To say that the changes do not matter because we can find that right elsewhere, but then to remove the right to do anything about an effective remedy, would mean that the exercise had achieved absolutely nothing.

[Sir William Cash (Stone) (Con)]

Would the right hon. and learned Gentleman be good enough to explain why other distinguished gentlemen—namely, Tony Blair and Lord Goldsmith—fought so resolutely to exclude the charter of fundamental rights from the Lisbon treaty and, furthermore, failed because their protocol did not actually work?

[Keir Starmer]

No. I spent 20-plus years as a human rights lawyer interpreting and applying provisions such as the charter and acting for many people to whose lives it made a real difference, as the Secretary of State will know.

I want to move on the question of devolved powers. At the moment, EU law limits the powers of the devolved institutions. On withdrawal, the default position ought to be that the devolved institutions would have power over matters falling within the devolved fields, but clause 11 prevents that and diverts powers that ought to go to Edinburgh, Cardiff or Belfast to London, where they are to be hoarded. That is fundamentally the wrong approach, but it is totally consistent with the Government’s approach of grabbing powers and avoiding scrutiny.

On that topic, let me deal with exit day, a crucially important day in the Bill. It is the day on which the European Communities Act will be repealed. It is also the day on which the role of the European Court of Justice will be extinguished in our law, and that matters hugely, whatever anyone’s long-term view, particularly for transitional arrangements. I heard the Secretary of State say this morning that he wanted transitional arrangements that were as close as possible to the current arrangements. I think he knows, in his heart of hearts, that that will almost certainly involve a role for the European Court of Justice—although he will say that it would be temporary.

Exit day, the day on which the role of the Court is extinguished, is crucial. Without it, we might not be able to transition on the terms that the Secretary of State was suggesting this morning. He knows that. Control over exit day is therefore hugely important. Who will have that control? People talk about bringing back control, and they might think that Parliament would have control over this important issue. But no. Enter clause 14, which states that

“‘exit day’ means such day as a Minister of the Crown may by regulations appoint”.

This will be in the sole power of a Minister. Anyone simply passing this Bill must be prepared to be a spectator on the question of what the transitional measures should be and how they operate. That is a huge risk to our national interests.

--- Later in debate ---

[Mr Duncan Smith]

Exactly. I wonder whether, through my right hon. Friend’s good offices, the powers that be might make it possible to have a further extension on Monday to give more Back-Benchers an opportunity to speak. I say that because I remember the Maastricht debates, where we went through the night on the first day and ended the second day at 10 o’clock. Everyone got to speak—as many people wanted to speak then as now—and there was no time limit, as I recall, Mr Speaker, although I make no criticism of your imposing a time limit on me, as I am sure I will manage to fit within it. I just gently urge that there might be some scope for such an extension, even by Monday.

I support the Bill because it is clearly necessary. Let us start from the simple principle of how necessary it is. We have to get all that European law and regulation and so on transposed into UK law so that it is applicable, actionable and properly justiciable in UK law, and that requires a huge amount of action. There are very many pages of laws. I was looking at them the other day and I said, “If we were to vote on everything in that, we would have to have something in the order of 20,000 different votes.” There is no way on earth that that can possibly happen.

I listened with great care to the arguments of the right hon. and learned Member for Holborn and St Pancras (Keir Starmer). I thought he made a very well-balanced speech and made his case for the need for change within the Bill rather well, but I would argue that the Labour party’s position does not fit with his speech. I go back to Maastricht, when John Smith led the Labour party. Because he was a strong believer in the European Union, the Labour party voted to support the legislation, but it then acted separately in Committee, where it opposed elements of the legislation that it did not agree with or thought needed changing. That is the position that the Labour party should adopt.

In other words, the reasoned way that the Labour party should behave is to reserve its position on Second Reading and then, subject to whatever changes it thinks necessary in Committee to the detail of the Bill, make a decision about what to do on Third Reading. To vote against the principle of the Bill is to vote against the idea that it is necessary to make changes to European law in order to transpose it into UK law. That is the absurdity that the Opposition have got into.

I know what it is like; we have been in opposition. There is a temptation to say behind the scenes, “I tell you what: we could cause a little bit of mayhem in the Government ranks by trying to attract some of their colleagues over to vote with us against Second Reading.” Fine—they fell for that, but the British public will look at this debate in due course and recognise that the Labour party ultimately is not fit for government.

In a sense, the detail of the Bill is not the issue; it becomes the issue once we have got through Second Reading. I accept and recognise that the Government have talked about possibly making major changes to the Bill. I observe that we are therefore not in disagreement about the need for the Bill. That is why the House should support the Bill’s passage, but there may be elements in it that need some change.

I note also that paragraph 48 of the report by the Select Committee on the Constitution, published this morning, which the right hon. and learned Member mentioned, states:

“We accept that the Government will require some Henry VIII powers in order to amend primary legislation to facilitate the UK’s withdrawal from the European Union”.

However, the report goes on to say that there also need to be

“commensurate safeguards and levels of scrutiny”.

So the debate is not about the need—

[Sir William Cash]

I would just like to mention, if my right hon. Friend will allow me, that it would not be unuseful to look at the names of the members of the Constitution Committee and make a judgment about their enthusiasm for leaving the European Union.

[Mr Duncan Smith]

I am grateful for that intervention by my hon. Friend. I know he will be able to make a powerful case in support of the Bill, and he is right, but I will come back to that point.

The basis on which people are arguing—that there has never been a great sweep of powers coming through Henry VIII procedures—is completely and utterly wrong. The reason why I became so concerned about what was happening under the European Union treaties is that section 2 of the European Communities Act 1972 clearly states that all the rules and regulations coming through treaties

“are without further enactment to be given”

immediate legal effect and

“shall be recognised and available in law”.

It goes on to say that

“Her Majesty may by Order in Council”—

Order in Council, which is not the procedure in this Bill—

“and any designated Minister or department may by order, rules, regulations or scheme, make provision”.

We have sat with that for 40 years, and we have been content to let rules and regulations be made in that way.

To those who talk about rule-takers and rule-makers, such as my right hon. Friend the Member for Loughborough (Nicky Morgan), I say yes, that was the case up until the Maastricht treaty, when qualified majority voting came in. We became rule-takers under that provision, and there has never been a more powerful one in British legislative history. I just sound a cautionary note to some of my colleagues on either side of the House who go on about this being the first time; it is not so.

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[Sir William Cash (Stone) (Con)]

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

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

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

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

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

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

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

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

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

[Mr Kenneth Clarke]

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

[Sir William Cash]

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

[Mr Duncan Smith]

I hesitate to ask my hon. Friend to give way, but simply want to make the point that as he will recall, during Maastricht we were told time and time again that although we had long procedures for debate the outcome could not be in doubt, because to be a member of the European Union meant that all of what was agreed in the Maastricht treaty would come straight into UK law regardless of what this Parliament decided it was against.

[Sir William Cash]

Absolutely. That is the cardinal principle.

The Henry VIII arrangement in this Bill is a mirror image in reverse of what was done in 1972 to absorb all the European legislation into our own law and apply it so that it could never be changed. It cannot be amended—there is the acquis communantaire, and it cannot be repealed until we have this Bill. That is the point. I ought to add that it would be impossible for us to translate all the European legislation through primary legislation, although, as has already been said, we will have important primary legislation on subjects such as immigration and fisheries. The Government have already promised that.

Section 2(2) of the 1972 Act allows EU law to have legal effect in UK domestic law by secondary or delegated legislation. Read with section 2(4) and schedule 2 to that Act, that secondary legislation, by sovereign Act of Parliament, is expressly given the power to make such provision as may be made by the Act of Parliament itself. There are hosts of examples—including, if I may say so to the Opposition and the shadow Secretary of State, section 75 of the Freedom of Information Act, where the amendment was made within the Act and passed by the Labour party. Let us not get hypocritical about this under any circumstances; this procedure is not as unusual as it is made out to be.

Indeed, the Minister on Second Reading of the 1972 Act, Geoffrey Rippon, acknowledged the novelty of the procedure—it was novel in those days—and added:

“As I conceive it, the power afforded by Clause 2(4) would be used only in exceptional circumstances”.—[Official Report, 15 February 1972; Vol. 831, c. 285.]

We now know that, according to the EU legal database, at least 12,000 regulations have been brought in since ’73, with 7,900 instruments derived from EU law. It is a wild assertion that the Henry VIII provisions contained in this Bill are an infringement of parliamentary sovereignty, and for that reason the Opposition amendment should be completely disregarded.

Furthermore, Henry VIII powers have been used in enactment after enactment. Indeed, we had them in the recent Energy Bill and Immigration Bill, which contained 22 separate Henry VIII powers. There is, however, another important point to be made. The European Scrutiny Committee report “Transparency of decision-making in the Council of the European Union”, published in May 2016, goes to the heart of the manner in which the policies and laws of the UK have increasingly been invaded, not merely in process but in practice, which we will reverse—abolish—through this Bill. The Committee established that although majority voting prevails by virtue of the treaties, the decisions are taken by consensus behind closed doors without any proper record, proper speeches or transparency. No votes are recorded, as they are in Hansard. That is the fundamental difference. It is a travesty of a democratic decision-making process and a reason why the Bill is so necessary. The people of this country have had legislation inflicted and imposed on them that is made behind closed doors without anyone knowing who has made it, for what reason and how.

There are political undercurrents that need to be brought out, because the question of who makes those decisions behind closed doors in the Council of Ministers is incredibly important, as Professor Vaubel, professor of economics at Mannheim University, made clear in his work “Regulatory Collusion”. Another report, by VoteWatch, demonstrates the extent to which the UK has been on the losing side an ever increasing proportion of times leading up to 2015. I am bound to say that the UK has been on the losing side more than any other state over that time.

I have made my point on the charter. The Opposition have no credibility on that question whatsoever.

Finally, let me say that this is an historic moment and I am glad to be part of it at last.

EU Exit Negotiations

William Cash Excerpts

Tuesday 5th September 2017 Commons Chamber

[Mr Davis]

Let us start with the right hon. Gentleman’s original presumption that we cannot achieve a negotiated deal in the period. As he should know, given his role as past and current Chairman of the Brexit Committee, the previous Trade Commissioner, Karel De Gucht, who is no friend of Brexit and does not approve of what we are doing, has said in terms that it is not technically difficult to achieve a trade outcome—all it requires is political will. What it requires is the political will on the European side to do it. What will give that political will is the fact that it sells roughly €300 billion of product to us every year and will want to continue doing so.

[Sir William Cash (Stone) (Con)]

Does my right hon. Friend accept that not only have the official Opposition been totally contradictory on the single market, customs union and the European Court, but they are now even defying their own manifesto and their vote on the article 50 Act, let alone the democratic outcome of the referendum itself? In other words, they have now moved from being remainers to reversers.

[Mr Davis]

On the day the shadow Brexit Secretary was on “The Andrew Marr Show” saying, if I remember his words correctly, that he was glad to have a unified party behind his current policy—policy No. 10, by the way—on that very same programme the right hon. Member for Don Valley (Caroline Flint) was saying exactly that: that the right hon. Gentleman was betraying Labour’s own voters. That is what the Labour party has to come to terms with. Its voters, more than anybody else, want us to leave. They voted for it and they want us to leave, and Labour had better deliver on it.

Brexit and Foreign Affairs

William Cash Excerpts

Monday 26th June 2017 Commons Chamber

[Mr Davis]

You know, I was right not to give way to the hon. Gentleman in the first place. He has got it wrong; it is not an ID card. We are talking about documentation to prove that people have the right to a job and the right to residence, but they will not have to carry that around all the time. It is not an ID card; it is rather like your birth certificate. It’s not an ID card! Good heavens!

I shall turn now to the legislative agenda—

[Sir William Cash (Stone) (Con)]

Would my right hon. Friend be kind enough to give way, just before he does so?

[Mr Davis]

This is going to be the last one, but yes, okay.

[Sir William Cash]

Does my right hon. Friend not think that those, such as the Liberal Democrats and others, who want to remain in the European Union should ask their constituents whether they really want the United Kingdom indefinitely to remain part of an undemocratic system that is governed by majority voting that takes place behind closed doors and that is moving towards integration with a common defence policy, a common Finance Ministry and further moves towards a political union in which we would be in the second tier of a two-tier Europe dominated largely by one country?

[Mr Davis]

rose—

Legislating for UK Withdrawal from the EU

William Cash Excerpts

Thursday 30th March 2017 Commons Chamber

[Mr Speaker]

Order. I gently remind hon. Members who arrived after the statement started that they certainly should not expect to be called. Although I am very keen to accommodate the extensive interest in this statement, there are two well-subscribed debates under the auspices of the Backbench Business Committee to follow, to which I need to have regard, so we need short questions and short answers.

[Sir William Cash (Stone) (Con)]

I commend my right hon. Friend for the clarity and thoughtful analysis that lie behind the White Paper. With the great repeal Bill, we will be returning sovereignty to this House so that decisions about our lawmaking are taken in this House by the representatives of the British people, in line with their wishes at general elections. That it is not—I advise the Opposition to bear this in mind—the situation at present. So often, as we find in the European Scrutiny Committee, such decisions are taken behind closed doors.

[Mr Davis]

I thank my hon. Friend for those comments and for his work in this area over the years. Some of the ideas in this policy area have come from his past writings, so he is right. I make the point that although people complain about secondary legislation, nearly 8,000 statutory instruments were used to implement European law under section 2(2) of the European Communities Act 1972, so that attack is a little hypocritical. I thank my hon. Friend for his comments and commend him for his work in the past.

European Union (Notification of Withdrawal) Bill

William Cash Excerpts

Ping Pong: House of Commons
Monday 13th March 2017 Commons Chamber

[Sir Oliver Letwin (West Dorset) (Con)]

I agree with what my right hon. Friend the Secretary of State said about amendment 1, but I wish to speak about amendment 2. The operative provision is subsection (4) which states—I want to remind the House as it is material to what I am about to say:

“The prior approval of…Parliament shall…be required in relation to any decision by the Prime Minister that the United Kingdom shall leave the European Union without an agreement”.

I have already argued in past debates exactly what my right hon. Friend argued today—namely, that if that subsection were to have its intended effect, it would be inimical to the interests of this country, because it would have the undoubted effect of providing a massive incentive for our EU counterparts to give us the worst possible agreement. I agree with him about that. However, I think that the situation is worse—far worse—than he described, because the operative subsection is deeply deficient as a matter of law. The reason for that is not just the one that Lord Pannick admitted, or half-admitted, in the House of Lords, but because under very plausible circumstances this subsection will not have anything like its intended effect. Let me briefly illustrate why that is the case.

Article 50 of the treaty on European Union is, for once in treaties, entirely clear. Paragraph 3 of the article states:

“The Treaties shall cease to apply to the State in question…two years after the notification…unless the European Council… unanimously decides to extend this period.”

Let us imagine that what the Secretary of State, the Government, all my hon. Friends and, I suspect, all Opposition Members hope will not be the case—namely, that the negotiations for a proper comprehensive free trade agreement break down—actually happens. We all hope that will not happen, but we cannot preclude the possibility that it will happen. If it does happen, I think all Members on both sides of the House must have the emotional intelligence to recognise that in all probability that would be under circumstances of some acrimony.

How likely is it that under such circumstances, with agreement having broken down in some acrimony, the European Council would be able to achieve a unanimous agreement to allow the UK to remain a member beyond the two-year period? I speculate that it is very unlikely. If we assume that that were to occur, we need to ask ourselves what would actually happen under those circumstances. One thing can be predicted with certainty: there would be litigation. The litigation would ask, ultimately, the Supreme Court to decide the question, “What has happened here? Has the Prime Minister made a decision, or has the Prime Minister not made a decision?” That could be decided in one of two ways. I rather think that Members on both sides of the House would agree with me that the Supreme Court must decide either that the Prime Minister has made the decision or that the Prime Minister has not made the decision.

Let us suppose for a moment that the Supreme Court decides that the Prime Minister has not made a decision, because it has been made instead by the European Council—a perfectly plausible outcome of the Court’s proceedings. In that case, subsection (4) is totally inoperable. It has no effect whatsoever, because what it does, purportedly, is to prevent the Prime Minister from making a decision without a vote. If the Prime Minister has, in the ruling of the Court, made no decision, it is impossible for her to have made a decision without a vote; therefore, the law has been conformed with, and Parliament is not given any ability to vote on the matter.

[Sir William Cash (Stone) (Con)]

I entirely agree with my right hon. Friend, and there is a further point. When it comes to the competing legislation at that point, it would be for the courts to consider whether or not the provisions in the Lisbon treaty that dealt with the question of article 50 had somehow been qualified, amended or repealed by a subsequent enactment.

[Sir Oliver Letwin]

I entirely agree with my hon. Friend, but it seems to me that for this purpose we do not even need to raise that question, because there is only one other possibility in this Court action—that the Court decides that the Prime Minister has implicitly made the decision. I do not quite know how the Court would get to that answer, but we could speculate that if the Prime Minister had acted differently in the course of the negotiations, the European Council would have acted differently, so implicitly the Prime Minister has made the decision.

Under those circumstances, subsection (4) would, purportedly, come into effect. That is, I suppose, what its authors intended. However, if the European Council has not by the end of the two-year period made a unanimous decision and if the courts decided that the Prime Minister had thereby implicitly decided, the courts would be requiring Parliament to do something that it is impossible to do—namely, to get the Prime Minister to reverse a decision that, as a matter of ordinary language, the Prime Minister would not have made at a time when the Prime Minister could not undo a decision that, as a matter of ordinary language, the European Council had made.

I am perfectly aware that it is of the greatest importance for Members of this House to show due deference to the other place, and I also genuinely admire the skills of the authors of the amendment, but I put it to them that even the House of Lords in all its majesty cannot compel the Prime Minister to do something that is impossible. That is beyond the scope of any human agency.

--- Later in debate ---

[Mr Speaker]

Order. With extreme brevity now from both sides of the House, I call Sir William Cash.

[Sir William Cash]

First, this is a very simple Bill that is merely about notification and triggering. It is as simple as that. Secondly, the plain fact is that judicial review, which my right hon. Friends the Members for West Dorset (Sir Oliver Letwin) and for Forest of Dean (Mr Harper) dealt with so well, would be a gift to the courts and the lawyers. It really is completely inappropriate. My third point is on the question of parliamentary sovereignty. The fact is that the issue today is not about parliamentary sovereignty. In fact, it is about undermining a decision that has been made by a referendum of the British people that was itself conferred by a sovereign Act of Parliament. That is the distinction and that is what we need to concentrate on.

My last point is simply this: we cannot tie the Prime Minister’s hands. It is inconceivable that we would legislate, make that judicially reviewable and, at the same time, pass amendments the effect of which would be to introduce a Committee of Parliament that would decide on questions that have to be decided on by the Government. Our constitution operates by parliamentary government, not by Committee of Parliament, otherwise we would go back to the 17th century; and I invite people to look at the Barebones Parliament.

European Union (Notification of Withdrawal) Bill

William Cash Excerpts

3rd reading: House of Commons & Committee: 3rd sitting: House of Commons & Report stage: House of Commons
Wednesday 8th February 2017 Commons Chamber

[John Redwood]

Like my hon. Friend, I think that there are some great English, Welsh, Scottish and Northern Irish agricultural products, and that with the right tariff system with the rest of the world we could do considerably better with our quality products.

[Sir William Cash (Stone) (Con)]

I congratulate my right hon. Friend on his great speech, but I want to ask him one question that goes to the merits of the new clause. It says that the Prime Minister “shall give an undertaking”, which is clearly a mandatory requirement under statute, and which itself calls for judicial review if somebody decides to do that. However, in all my time in this place, I have never seen a clause proposing the preserving of peace in Northern Ireland as a matter of public interest and of judicial review. It is unbelievably unworkable and completely contrary to all the assumptions that one might rely on for a decent provision.

[John Redwood]

I am grateful to my hon. Friend for drawing me back to my central point. He kindly said that I have made a good speech, but I have just responded to everybody else making their own speeches and riding their own hobby horses. I hope they have enjoyed giving those hobby horses a good ride.

To summarise my brief case, the aims of the new clause are fine. They happen to be agreed by the Government. However, it is disappointing that the Opposition have left out some important aims that matter to the British people: taking back control of our borders and laws, and dealing with the problem of the Court immediately spring to mind, but there are many others. They leave out, as they always do, the huge opportunities to have so many policies in areas such fishing and farming that would be better for the industry and for consumers. They have now revealed a fundamental contradiction in wanting completely tariff-free trade in Europe, but massive tariff barriers everywhere else, and do not really seem to think through the logic.

My conclusion is that there is nothing wrong with the aims. We need the extra aims that the Government have rightly spelled out. It would be quite silly to incorporate negotiating aims in legislation. I believe in the Government’s good faith. We are mercifully united in wanting tariff-free, barrier-free trade with the rest of Europe. It is not in the gift of this House, let alone the gift of Ministers, to deliver that, but if people on the continent are sensible they will want that because they get a lot more out of this trade than we do. They must understand that the most favoured nation tariffs are low or non-existent on the things we sell to them, but can be quite penal on the things they have been particularly successful at selling to us. The aims are a great idea, but it is silly to put them into law.