EU Withdrawal Agreement: Legal Advice

William Cash Excerpts

Tuesday 13th November 2018 Commons Chamber

[Victoria Prentis (Banbury) (Con)]

It is a great pleasure to follow all the hon. Members who have spoken so far—they are certainly some of the gentlemen in this House I most admire. A great deal of sense has been talked in an extremely helpful tone.

I should in all conscience say at this point that, as a Treasury Solicitor lawyer from 1997, I provided legal advice to successive Governments, and from 2003, I provided legal advice on the publication of legal advice. Given my experience in the field, I would like to offer a few ideas that I hope will take us further towards an agreement. I hope the House is able to come to a consensus on this important point at this very important time, without pushing the matter to a vote, not least because we have moved a very long way during the debate from the terms of the motion.

The confidential nature of a lawyer’s advice to a client is very well established—I know you have practised in this field, Madam Deputy Speaker. Lawyers do not make decisions; they provide advice. Clients make decisions. The Attorney General is not a member of the Cabinet. He attends Cabinet, and in his very important position—I am not in any way trying to denigrate it—he provides legal advice. The Government can set out the legal position they have come to. The Attorney General can do no more than provide advice given his view. As hon. Members said, it is of course perfectly possible for every other lawyer, in the House and elsewhere, to provide an alternative view. Only the Government can set out their legal position.

Government lawyers, who I think I may be forgiven for saying are great people who do a marvellous job, sometimes against all the odds, have additional duties compared with other lawyers, as the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) said. They have a duty of candour. They are the guardians of the rule of law and the public interest. I am fully aware that they operate to the highest ethical standards. However, their advice is not of a different status from the advice of other lawyers. It is the same sort of advice, which is covered by legal professional privilege across the piece.

I could give examples of the way we provided legal advice on disclosure in the Iraq and Afghanistan litigation, although I am probably governed by the Official Secrets Act so I had better not make them too detailed. It is certainly true that, as Government lawyers, we went above and beyond—we took our duty of candour extremely seriously—but our advice in effect operated on the same plane and under the same system of confidentiality as that of other lawyers. The long-standing convention that we do not publish Government Legal Service advice or Attorney General’s advice is all part of that.

The separation of powers is at the absolute heart of our constitution. That is why we got so over-excited when a certain newspaper called judges “enemies of the people” last year. That was not acceptable. That is not the proper way for the law, the press and Parliament to operate. It is extremely important if we are to maintain our constitution, which we all profess to uphold so dearly, that we treat those different pillars extremely sensitively and keep them separate. Of course, the Government are often a party to litigation—the essence of my job was to defend them in the courts. The Government must not be hamstrung by having to provide their legal advice in public before litigation.

The Minister, who is no longer in his place, mentioned paragraph 2.13 of the ministerial code, which states:

“The fact that the Law Officers have advised or have not advised and the content of their advice must not be disclosed outside Government without their authority.”

I draw the House’s attention also to paragraph 2.11, which demonstrates that legal officers’ advice is special. Written legal officer opinions, unlike other ministerial papers, are of course made available to successive Administrations.

[Sir William Cash (Stone) (Con)]

Does my hon. Friend recall that that same ministerial code is clear that Law Officers’ advice is meant to be sought on all critical legal questions, but that was not done before the Chequers proposals, when the Cabinet did not have specific legal advice available to it? I raised that point with the Prime Minister in the Liaison Committee.

[Victoria Prentis]

As a humble Back Bencher, I unfortunately have no idea what legal advice was made available to the Cabinet. It might assist the House to know that the ministerial code is clear—I cannot remember in which section, but in the same area—that if a Law Officer gives legal advice to the Cabinet, the whole of that advice must be provided as an attachment for the whole Cabinet to read. It is very important in these difficult times that we ensure that the ministerial code is complied with in full.

I pay tribute to the previous Labour Government and to previous Conservative Governments, who worked hard to improve the transparency of the process of government. Great advances have been made, for example in the field of freedom of information. It is relevant that legal officers’ advice is exempted from the Freedom of Information Act under section 42. It is also true that it is ultimately up to the client to decide whether or not legal advice should be published. I am concerned for future Governments, and for future Government legal advisers: I want them to be able to provide the fullest, frankest and most honest advice possible.

October EU Council

William Cash Excerpts

Monday 22nd October 2018 Commons Chamber

[The Prime Minister]

There was an awful lot in the right hon. Gentleman’s comments about process, but not much about substance, and what Labour actually wants to see. It is incumbent on all of us in public life to be careful about the language we use. There are passionate beliefs and views on this and other subjects, but whatever the subject we should all be careful about our language.

The right hon. Gentleman said a lot about process, as I said, and at one point he seemed to be asking us to set out our plan. I have to say to him that we set out our plan in the White Paper of more than 100 pages back in the summer. He talks about a future relationship of a customs union, but whatever future relationship we have, we do have to deal with the backstop issue. Without a backstop in the withdrawal agreement, there will be no withdrawal agreement. Without the withdrawal agreement, there will be no future relationship—nothing is agreed until everything is agreed—so it does not matter what future relationship we want, we still need to deal with this backstop issue.

The right hon. Gentleman’s position has been that no deal is not acceptable in any circumstances. That means accepting any deal that the European Union wants to give us, including a deal that would carve Northern Ireland out of the United Kingdom. Perhaps, though, his shadow Chancellor, who made the comment that he was longing for a United Ireland, might actually welcome that.

All I have to say to the right hon. Gentleman is that, throughout all this, all we have seen from the Labour party and from him is them playing politics with this issue. One minute, they want to accept the referendum, the next they want a second referendum. One minute, they want to say that free movement will end, the next they say that free movement is still on the table. One minute, they want to do trade deals, the next they want to be in a customs union that will stop them doing trade deals. He is doing everything he can to frustrate Brexit and trigger a general election. He has voted against sufficient progress, he has tried to block the withdrawal Act, and he has vowed to oppose any deal that the Government bring back. I am looking and working for the right deal in the national interests of this country; he is putting politics ahead of the national interest.

[Sir William Cash (Stone) (Con)]

My right hon. Friend has stated:

“We will not have truly left the European Union”—

I emphasise the words “truly” and “left the European Union”—

“if we are not in control of our own laws.”

Chequers is still on the table. Its common rulebook allows the other 27 EU countries in their Council of Ministers to make our laws for goods and agricultural products with no transcript and no effective veto and undermines the total repeal of the European Communities Act 1972. How can she possibly claim that we will be in control of our own laws and sustain the national interest?

[The Prime Minister]

May I say to my hon. Friend that, yes, we have proposed that common rulebook? They are rules that our manufacturers say that they will be abiding by in any case. It has been a pretty stable rulebook for many years. However, it is not correct to say that there will not be a parliamentary lock on those rules. Yes, the process of determining any change to those rules will be up to the European Union, but some of those are international standards and we will, as an independent member of the international standards bodies, have a say in relation to those rules. Parliament will have a lock. We have been clear about that and we set it out in the proposals published after the Chequers meeting in July that any decision to accept or to diverge from those rules—there is a process about determining materiality—will be one that is taken by this Parliament.

EU Exit Negotiations

William Cash Excerpts

Monday 15th October 2018 Commons Chamber

[The Prime Minister]

The right hon. Gentleman frequently stands up in this Chamber to complain about the lack of members of the Government coming to the House of Commons to inform Members about matters, but I have come here today to inform the House of Commons about the position, and he complains about that as well. That is typical of the Liberal Democrats; they do not know where they stand on the issue.

[Sir William Cash (Stone) (Con)]

Will my right hon. Friend confirm that if we go one second beyond 31 December 2020, we will automatically fall into the multiannual surveillance framework and will therefore be accumulating tens of billions of pounds extra year on year? Does she accept that, and does she also accept that if we continue to be dictated to by the EU in the way in which things are going at the moment, this country will be brought to a humiliating conclusion?

[The Prime Minister]

My hon. Friend is obviously one of my hon. Friends who has paid particular, very careful attention to these issues, but I do not agree with the situation that he has set out. We have been negotiating with the European Union. That has seen both the European Union recognising our arguments and moving its position in relation to some issues, and our recognising our need to put forward proposals that are acceptable to us but that recognise the concerns that have been expressed by the European Union.

But what we are doing, and what I am doing, is making sure that any deal that we have is the deal that is best for the future of the United Kingdom. That is a deal that delivers on the Brexit vote but does so in a way that protects jobs and livelihoods.

In relation to the future relationship, I want to ensure that that future relationship can start at the end of the implementation period, in which case, of course, there would be no question of a different relationship with the European Union for any period of time. We have agreed the financial settlement as part of the withdrawal settlement, as my hon. Friend knows, but I remind the House, yet again, that—this was a phrase first used, I think, by the EU itself—nothing is agreed until everything is agreed.

Leaving the EU

William Cash Excerpts

Monday 9th July 2018 Commons Chamber

[The Prime Minister]

The right hon. Gentleman commented on the preparations for no deal. It is entirely right and proper for this Government to make preparations for every eventuality, because we are going into a negotiation. It is right that we step up our preparations for no deal to ensure that we are able to deal with whatever comes at the end of the negotiations. The right hon. Gentleman’s key question—he asked it twice—was whether I would work with people across this House to stay in the single market and in the customs union. The answer is an absolute unequivocal no. We are leaving the single market and we are leaving the customs union.

[Sir William Cash (Stone) (Con)]

How does my right hon. Friend reconcile the Chequers statement with the recent repeal of the European Communities Act 1972 under the European Union (Withdrawal) Act 2018 and with the European Court of Justice and with democratic self-government in this country?

[The Prime Minister]

We have, as my hon. Friend says, repealed the 1972 Act, but we have also ensured that we will take EU laws into UK law at the point at which we leave the European Union, such that we see a smooth and orderly Brexit. In the future, the European Court of Justice will not have jurisdiction over the United Kingdom, and this Parliament will make sovereign decisions. The decision as to whether Parliament is willing to accept the deal that has been negotiated will be made when the meaningful votes in the withdrawal and implementation Bills come before the House. Thereafter, it will be up to this Parliament to decide whether it agrees with any changes to the rules or any laws that this Parliament wants to pass. That is sovereignty—taking back control of our laws. That is what I believe people want and that is what we will do.

June European Council

William Cash Excerpts

Monday 2nd July 2018 Commons Chamber

[The Prime Minister]

I set out clearly the progress made in our talks since we triggered article 50. The right hon. Gentleman says it is wrong for the national health service to prepare for no deal. Actually, it is right that contingency arrangements are being put in place across the Government, because the negotiations have not yet been completed. The European Union itself—we agreed with this—is looking to the October deadline. As I said in my statement—if he noticed that paragraph in my statement—I believe it is right that, when this House looks at the details of the withdrawal agreement, it should have sufficient detail about our future relationship with the European Union to be able to make that decision. Finally, he talks about role of the United Kingdom and the importance of jobs in the future. I say very simply to him—I have said it before, but I will continue to repeat it—that if he is interested in jobs in Scotland then he should make sure that Scotland stays in the United Kingdom.

[Sir William Cash (Stone) (Con)]

First, I congratulate my right hon. Friend on Royal Assent being granted to the European Union (Withdrawal) Act 2018, which repeals the European Communities Act 1972 in line with the wishes of the voters in the referendum. This repeal, as my right hon. Friend knows, means no freedom of movement, no customs union, no single market and no European Court of Justice. It is a sovereign Act returning to this country self-government and is the law of the land. There are, however, some disturbing reports in parts of the press that the Government may have in mind proposals for some form of legal re-entry into a form European unity of some description—for example, in the context of the European economic area. This is preposterous, and I simply ask my right hon. Friend to dismiss those reports, as they are completely unfounded and would undermine trust in our democracy if they were true.

[The Prime Minister]

In relation to the point my hon. Friend makes about the EEA, I have been clear from the start that that is one of the things the European Commission suggested was on the table. The EEA is not right, because it would not deliver—particularly in the form the European Commission proposed it—on the vote of the referendum and the vote of the British people.

Oral Answers to Questions

William Cash Excerpts

Wednesday 2nd May 2018 Commons Chamber

[The Prime Minister]

We are very clear that we are going to leave the European Union on 29 March 2019. We will be leaving the customs union, and we want to ensure that we can have an independent trade policy. We also want to ensure that we deliver—we are committed to delivering—on our commitment to having no hard border between Northern Ireland and Ireland, and that we have as frictionless trade as possible with the European Union. There are a number of ways in which that can be delivered—[Interruption.] There are a number of ways in which that can be delivered, and if the hon. Lady is so interested in the whole question of a customs border, she might like to ask her Front Benchers to come to a decision on what the Labour party policy actually is on this.

[Sir William Cash (Stone) (Con)]

The European Scrutiny Committee, which I have the honour to chair, has invited Mr Olly Robbins to appear before the Committee on several occasions since February, but so far this has not been arranged. Will my right hon. Friend be good enough to use her charm to ensure that Mr Robbins does appear, as have already the Chancellor, the Secretary of State for Exiting the European Union and Sir Tim Barrow?

[The Prime Minister]

As my hon. Friend will know, it is not normally the case that any request to a civil servant to appear before a Committee is automatically accepted; decisions are taken about the levels at which civil servants should appear before Committees. As he said, he has had a number of my right hon. Friends appear before his Committee—I remember, I am not sure I can say with fond memory, the time when I appeared before the European Scrutiny Committee when I was Home Secretary—but I will certainly look at the request that he has made.

Oral Answers to Questions

William Cash Excerpts

Wednesday 18th April 2018 Commons Chamber

[The Prime Minister]

I have already met Prime Minister Modi for our bilateral discussions. There are a number of issues of extradition between the two countries—the UK and India. We raise a number of cases with the Indian Government, as I did this morning. It is important that we recognise the independence of the judiciary in both countries.

[Sir William Cash (Stone) (Con)]

On a point of order, Mr Speaker.

[Mr Speaker]

Order. Points of order tend to come after urgent questions, so we will look forward with eager anticipation and a sense of excitement to the contribution of the hon. Gentleman at that point.

Military Action Overseas: Parliamentary Approval

William Cash Excerpts

Tuesday 17th April 2018 Commons Chamber

[Alex Norris (Nottingham North) (Lab/Co-op)]

In 2011, this House was promised that the Government would

“enshrine in law for the future the necessity of consulting Parliament on military action.”

That would have completed a painful journey that started before the Iraq campaign. It took the threat of a wildcat Parliament in Church House to drag the Government to this place to set up a vote on that matter. It would have seen Parliament play a formal role, under statute, in the process of war and of action overseas. There were discussions over five years about how this might happen, before another Secretary of State came along and abandoned these plans because he believed that they would constrain operational flexibility.

Although those plans were abandoned, we have seen this week that the discussion is far from over. If we all look at our mailbags from the past few days, we will see that our constituents expect us to play a role in this process. They expect to hold us to account for our actions, and I want that.

[Sir William Cash (Stone) (Con)]

rose—

[Alex Norris]

I will not give way for the minute because I wish to make some progress.

Of course, that would be exceptionally difficult, but we were sent here to tackle the exceptionally difficult. In 2013, Parliament debated military action—that has been played out many times over the past few hours—and MPs were given the opportunity to have their say, for better or for worse, to cast their votes, to speak up on behalf of their constituents and to be held accountable. It seemed at that point that a good convention had been established and that it reflected the way that things would be done.

[Alex Norris]

My hon. Friend and I share a real passion for all matters American—not just basketball and American football, but the American constitution. He highlights my very point very well.

[Sir William Cash]

In view of the fact that the hon. Gentleman is invoking statute as a means of achieving his objectives, would he be good enough to explain that, effectively, this would mean surrendering national decisions of the utmost importance to the United Kingdom to the courts to decide, because that is where this would lead?

[Alex Norris]

The hon. Gentleman has not given me the chance to make my case. I am arguing for a formalised, codified role for this place so that we are not in the situation of last week when, for as many tweets as there were about whether we should be acting at all, there were tweets questioning whether Parliament should be recalled. We should not be in this fudge at a time when we are making such important decisions.

We are not asking to constrain operational flexibility—of course we are not. I do not believe that I and all other Members collectively should be setting a strategy for a campaign, but we should have the opportunity to make sure that there is a strategy for the campaign and to ask questions.

European Council

William Cash Excerpts

Monday 26th March 2018 Commons Chamber

[The Prime Minister]

I join the right hon. Gentleman, as I am sure everybody in the House does, in wishing the very best to Nick Bailey and his family as he completes his recovery. I also thank the NHS staff who not only treated him, but continue to care for Sergei and Yulia Skripal. I was pleased to meet some of those staff and talk to them about their experience when I was in Salisbury just over a week ago; their dedication was very clear.

The right hon. Gentleman raises a number of issues. We have had discussions with the Scottish National party and others about what a Magnitsky amendment might look like. We have already taken some action, but we are looking to ensure that we take the strongest possible action. Of course, a number of my colleagues in the European Council mentioned their own Magnitsky legislation and that issue.

I will write to the right hon. Gentleman on SLPs, if I may. We have taken some action, but are looking further at what we might be able to do.

On Catalonia, we continue to wish to see the rule of law upheld and to ensure that the Spanish constitution is upheld. On Northern Ireland, talks are starting today with the European Commission on the details of the ways in which we will be able to ensure that there is no hard border between Ireland and Northern Ireland. Where appropriate, those talks will also involve the Irish Government.

Finally, the right hon. Gentleman mentions the common fisheries policy. We will be leaving the common fisheries policy and taking back control of our waters. But it is a bit rich for him to make those comments, given that he belongs to a party that wants to stay in the CFP in perpetuity.

[Sir William Cash (Stone) (Con)]

The European guidelines of 23 March and the EU proposed legal protocol both insist on the autonomy of the EU legal order and the jurisprudence of the European Court of Justice. Will my right hon. Friend give the House an absolute assurance that in these negotiations the Government will not accept exclusive or sole jurisdiction of the European Court over the UK from 29 March 2019, nor after 30 December 2020—at the end of the implementation period—and that the Government will not enter a treaty or introduce legislation that confers such jurisdiction, which a recently retired European Court judge said would be a “legal viper’s nest”?

[The Prime Minister]

As I have said before in this Chamber in response to a question from our hon. Friend the Member for North East Somerset (Mr Rees-Mogg), during the implementation period, there will of course continue to be that role for the European Court of Justice, because we will be continuing to operate on largely the same basis as currently. Once we have ended the implementation period, it will be a very different story. We will then be absolutely in a position that I know that my hon. Friend the Member for Stone (Sir William Cash) wants: one of taking back control of our laws. As I said in my statement, there are some issues still to be addressed on the withdrawal agreement, including the governance of that agreement. A number of interesting ideas have been proposed that do not give sole authority to the European Court of Justice, which is not something that we would want.

UK/EU Future Economic Partnership

William Cash Excerpts

Monday 5th March 2018 Commons Chamber

[The Prime Minister]

First, I remind the right hon. Lady that the 80% reference was in one of the options on future customs arrangements between Northern Ireland and Ireland. Of course, what I set out in the speech in relation to that border issue was about not just the customs arrangements, but the regulatory standards that this country will be following once we have left the European Union. We are not going to be in a customs union—we are not going to be in the customs union—because that would prevent us from being able to follow an independent trade policy, which is something that we should be following because we can see great opportunities for companies, businesses, jobs and prosperity in the UK as a result.

[Sir William Cash (Stone) (Con)]

Given my right hon. Friend’s confirmation in both her speech on Friday and her statement today that our EU policy rightly rests on fundamental UK principles in our national interest—namely, the sovereignty of our own Parliament and our own judiciary, our own democracy and the integrity of the United Kingdom—does she agree that the official Opposition’s continuous unprincipled reversals of their policy betrays not only their own voters, but the country?

[The Prime Minister]

My hon. Friend is absolutely right. We consistently hear the Opposition saying one thing about their Brexit policy one minute and something else the next. Crucially, they would not be delivering for the British people, because they would stay in the single market and the customs union, they would see the jurisdiction of the European Court of Justice, and they would continue to pay sums of money over to the European Union. Those are the very things that people voted against.