The MPs started debating the EU (withdrawal) bill on the 7th September. Sir Bill Cash made the following speech and interventions:
The Secretary of State for Exiting the European Union (Mr David Davis): I beg to move, That the Bill be now read a Second time.
When I introduced the European Union (Notification of Withdrawal) Bill earlier this year, I said that that Bill was just the beginning—it was the beginning of a process to ensure that the decision made by the people in June last year is honoured. Today we begin the next step in the historic process of honouring that decision. Put simply, this Bill is an essential step. Although it does not take us out of the European Union—that is a matter for the article 50 process—it does ensure that, on the day we leave, businesses will know where they stand, workers’ rights will be upheld and consumers will remain protected. The Bill is vital to ensuring that, as we leave, we do so in an orderly manner.
Let me start with a brief summary of the Bill before going on to set out its key provisions in more depth. The Bill is designed to provide maximum possible legal certainty and continuity while restoring control to the United Kingdom. It does so in three broad steps. First, it removes from the statute book the key legislation passed by this Parliament in 1972—the European Communities Act 1972. That Act gave European Union law supreme status over law made in this country. It is therefore right that it be removed from our statute book on the day the UK leaves the European Union, bringing to an end the supremacy of European law over laws made in the United Kingdom.
Secondly, the Bill takes a snapshot of the body of EU law that currently forms part of the United Kingdom legal system and ensures that it will continue to apply in the United Kingdom after we leave. This is to ensure that, wherever possible, the same rules and laws will apply the day after exit as they did before. Without that step, a large part of our law would fall away when the European Communities Act is repealed.
But simply preserving European Union law is not enough. There will be many areas where the preserved law does not work as it should. So, as its third key element, the Bill provides Ministers in this Parliament and in the devolved legislatures with powers to make statutory instruments to address the problems that would arise when we leave the European Union.
These powers allow Ministers to make those changes to ensure that the statute book works on day one. This will be a major shared undertaking across the United Kingdom.
Following this, it will be for United Kingdom legislators to pass laws, and for the United Kingdom courts to adjudicate those laws.
The Bill enables us to leave the European Union in the smoothest and most orderly way possible. It is the most significant piece of legislation to be considered by this House for some time, and it will rightly be scrutinised clause by clause, line by line on the Floor of the House.
I stand ready to listen to those who offer improvements to the Bill in the spirit of preparing our statute book for withdrawal from the European Union.
The right hon. and learned Member for Holborn and St Pancras (Keir Starmer) likes to remind me of my past incarnation as a Back Benchers’ champion and my dedication to holding the Government to account. I have not changed my views one jot. Let me be clear: this Bill does only what is necessary for a smooth exit and to provide stability. However, as I have repeatedly said, I welcome and encourage contributions from those who approach the task in good faith and in a spirit of collaboration. All of us, as legislators, have a shared interest in making the Bill a success and in the national interest.
Tom Brake: Will the Secretary of State take this opportunity to confirm that the Government will not use this Bill to make policy changes?
Mr Davis: Again, I will go into that in some detail. There is one exception to this, but the primary aim behind the Bill is to maintain policy as it is now. The only exception to that is under the withdrawal arrangements, and that will be time-determined and limited. I will detail that in a second.
John Redwood (Wokingham) (Con): Will my right hon. Friend confirm that if the Government wish to make a change by statutory instrument, that is a parliamentary process? It would be entirely in Parliament’s control. It is a synthetic nonsense to suggest that Ministers are bypassing Parliament.
Mr Davis: My right hon. Friend is entirely right—it is a point I will elaborate on later—and the editor of the Evening Standard should know that from his own experience.
The key point of this Bill is to avoid significant and serious gaps in our statute book. It ensures that consumers can be clear about their protection, employees can be clear about their rights, and businesses can be clear about the rules that regulate their trade. Workers’ rights and consumer and environmental protections will be enforceable through the UK courts, which are renowned the world over. The Bill provides certainty as to how the law will apply after we leave the European Union, and ensures that individuals and businesses will continue to be able to find redress when problems arise. Without this Bill, all those things would be put at risk.
The Bill must be on the statute book in good time ahead of our withdrawal so that the statutory instruments my right hon. Friend the Member for Wokingham (John Redwood) referred to, which will flow from the Bill, can be made in time for exit day—the House will have time to look at them—and so that we are in a position to take control of our laws from day one.
The Bill provides a clear basis for our negotiation with the European Union by ensuring continuity and clarity in our laws without prejudice to the ongoing negotiations. Without this legislation, a smooth and orderly exit would be impossible. The shape of any interim period will need to be determined by the negotiations, but we cannot await the completion of negotiations before ensuring that there is legal certainty and continuity at the point of our exit. To do so would be reckless.
Mr Davis: Let me now talk the House through the Bill’s main provisions. The first clause repeals the European Communities Act on the day we leave the European Union, ending the supremacy of EU law in the UK and preventing new EU law from automatically flowing into UK law after that point. When the then Prime Minister Harold Wilson led the debate here in May 1967 on the question of the United Kingdom’s entry into the European Communities, he said:
“It is important to realise that Community law is mainly concerned with industrial and commercial activities, with corporate bodies rather than private individuals. By far the greater part of our domestic law would remain unchanged after entry.”—[Official Report, 8 May 1967; Vol. 746, c. 1088.]
I think the passage of time has shown that he was mistaken. European Union law touches on all aspects of our lives, in a far wider way than the drafters of the European Communities Act could have envisaged. That means the Bill we have before us today has a difficult task: it must rebuild United Kingdom law in a way that makes sense outside the European Union.
To do that, the first step the Bill takes is to preserve all the domestic law we have made to implement our EU obligations. That mainly means preserving thousands of statutory instruments that have been made under the European Communities Act, with subjects ranging from aeroplane noise to zoo licensing. It also extends to preserving any other domestic law that fulfils our European Union obligations or otherwise relates to the European Union.
Equally, the Bill converts European Union law—principally EU regulations, all 12,000 of them—into domestic law on exit day. It also ensures that rights in the EU treaties that are directly effective—that is, rights that are sufficiently clear, precise and unconditional that they can be relied on in court by an individual—continue to be available in UK law.
I have no doubt that there is much about EU law that could be improved, and I know that this Parliament will, over time, look to improve it. [Interruption.] Including the hon. Member for Caerphilly (Wayne David), who laughed just then. But that is not the purpose of this Bill. It simply brings European Union law into UK law, ensuring that, wherever possible, the rules and laws are the same after exit as before.
Just as important as the text of EU law is the interpretation of that law.
For that reason, the Bill ensures that any question as to the meaning of retained law is to be decided on in UK courts in accordance with the Court of Justice’s case law and retained general principles of European Union law as they stood on exit day. That approach maximises stability by ensuring that the meaning of the law does not change overnight and that only the Supreme Court, and the High Court of Justiciary in Scotland, will be able to depart from retained EU case law. They will do so on the same basis on which they depart from their own case law. Any other approach would either actively cause uncertainty or fossilise EU case law for ever.
Future decisions of the Court of Justice will not bind our courts, but our courts will have discretion to have regard to such decisions if they consider it relevant and appropriate to do so, in just the same way that our courts might at the moment refer to cases in other common law jurisdictions such as Australia and Canada. I give way to the hon. Member for Cardiff South and Penarth (Stephen Doughty), who has been patient.
In essence, remember, the aim of the Bill is to translate European Union into UK law and to make sure that no problems arise, whether that means references to bodies that we are no longer subordinate to, whether it means that the language is different, or whether it applies to reciprocal rights. Much of this will be very straightforward and relatively simple. The point that the hon. Gentleman should look at is that the Bill seeks to make the type of secondary legislation, whether under affirmative or negative resolution, proportionate to that. If he wants to talk about the issue further, I am happy to talk to him. As I have said before, I am not going to reinvent the constitution at the Dispatch Box.
There are some elements that simply will not make sense if they remain on the UK statute book once we have left the EU and in the years and decades to come. It would not make sense, for example, for the Bill to preserve the supremacy of EU law or to make the preserved EU law supreme over future legislation passed by this Parliament. Laws passed in these two Houses after exit day will take precedence over retained EU law.
We also do not believe that it would make sense to retain the charter of fundamental rights. The charter applies only to member states when acting within the scope of EU law. We will not be a member state, nor will we be acting within the scope of EU law, once we leave the European Union. As I said to the House when I published the White Paper on the Bill, the charter catalogues the rights found under EU law that will be brought into UK law by the Bill. It is not, and never was, the source of those rights. Those rights have their origins elsewhere in domestic law or relate to international treaties or obligations that the UK remains party to—for example, the European convention on human rights.
Let me clear: the absence of the charter will not affect the substantive rights available in the UK. As I have said before at the Dispatch Box, if an Opposition Member or anyone in the House—I am thinking of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve); I will come to him in a minute—finds a substantive right that is not carried forward into UK law, they should say so and we will deal with it.
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. (…)
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.
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 six to one 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 six to one 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 Clark: 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 communitaire, 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 VII 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.