The House of Commons voted yesterday for the Government’s motion to seek an extension to Article 50, by 412 votes to 202. During the debate Sir William Cash made the following speech and interventions:
Sir William Cash: I am most grateful. In relation to this pamphlet, or whatever it is my right hon. Friend is producing today, will he confirm now, on the Floor of the House, that the fact that exit day may or may not be extended does not affect the fact that under section 1 of the European Union (Withdrawal) Act 2018, which received Royal Assent on 26 June last year, the repeal of the European Communities Act takes effect, notwithstanding any extension of time, as prescribed by the 2018 Act?
Mr Lidington: The Government have given a commitment that in the event of the House voting in favour of extension and—this is not a given—the European Council agreeing to an extension, we will bring forward the necessary legislation, in line with the expressed wishes of the House.
(…)
Sir William Cash: Thank you, Mr Speaker.
Alarmingly, during his speech, the Chancellor of the Duchy of Lancaster did not answer when I asked him for confirmation that the express repeal of the 1972 Act under section 1 of the European Union (Withdrawal) Act 2018 would be continued. This includes the time and date of our leaving the European Union on 29 March 2019. This is the law of the land, which, despite any motions that might be passed, precludes not only an extension of time but the revocation of article 50. This is what the voters voted for in the referendum.
Moreover, the shadow Secretary of State for Exiting the European Union, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), in his exchanges with me last week, asserted that he wanted the repeal of the 1972 Act itself to be repealed. I would be grateful to hear whether he wishes to contradict that.
Keir Starmer: I am sorry—I only caught the second half of the hon. Gentleman’s point; there is no discourtesy intended. If this is the point that is being put to me, I have always said that fixing a date to repeal the Act on 29 March was a mistake, because we would always need transition, and that we would need the Act to run during that transition. I have always thought that putting a date on the statute was a big mistake, for many reasons, and now we are going to have to put it right before 29 March.
Sir William Cash: I understand that point, but that was not the point on which we had an exchange last week. I am sorry if the right hon. and learned Gentleman did not catch what I was saying. It was asking him whether he wanted a repeal of the repeal of the 1972 Act that is contained in section 1 of the European Union (Withdrawal) Act. He indicated to me last week that he did want that. After all, the Labour party itself voted against the withdrawal Act on Second Reading and indeed on Third Reading, so we can assume that it did not want the repeal of the 1972 Act and that it is therefore committed to a course that is inconsistent with what the voters decided in the referendum. In respect of the position on both sides of the House, the United Kingdom is therefore at a dangerous crossroads in the middle of a fog.
I have done my best over the past 30 years to be consistent and to address the principles that underlie the sovereignty of this Parliament in delivering the democratic wishes of the British people through parliamentary Government, and not through government by Parliament, as is being proposed by certain Members of this House in respect of giving priority to private Members’ Bills, despite the Standing Order No. 14 requirement that Government business takes precedence. I for one believe that this Parliament can deliver the referendum vote; ensure the constitutional integrity of the United Kingdom, including Northern Ireland; fully comply with the vote to leave following the European Union Referendum Act 2015, which was passed by a 6:1 majority in this House; comply in full with the European Union (Notification of Withdrawal) Act 2017, which so many Members who are now turning into rejoiners, let alone reversers, actually voted for; and comply in full with the European Union (Withdrawal) Act 2018, which received Royal Assent on 26 June last year and which itself includes the provision for exit day to be on 29 March. I say with great respect to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) that, as I am sure he will recall, he voted for the Third Reading of the Act.
We have had substantial debates about the backstop and, of course, the most recent advice of the Attorney General. My European Scrutiny Committee has issued a critical report of the withdrawal agreement. It came out only last week and I urge the House to read it. We have asked for, but have not yet received, a draft of the withdrawal and implementation Bill, and I say that because that Bill, if passed, would enact the withdrawal agreement in our domestic law—the law of the land. I seek to make some proposals for what would be needed in any such Bill, as enacted, in order to satisfy the fundamental issues, bearing in mind that we have only a few days to go, and to ensure that we actually leave the European Union on 29 March. Given the timescale available for the withdrawal and implementation Bill to be enacted, we can assume that it will be rammed through with virtually no time to discuss proposals that could be made by way of amendments to it. There will be no proper debate. The law of the land relating to the withdrawal agreement will be rammed through this House.
What do I have in mind? First, we must protect Northern Ireland’s constitutional status in the United Kingdom. Discussions have continued since the Attorney General’s recent advice and will continue on matters relating both to the backstop and to issues arising in international law, including article 62 of the Vienna convention, that are being further analysed by distinguished lawyers. Such matters are important and remain unresolved. I was extremely glad to hear Arlene Foster confirm this morning that that was the current position, and when that further analysis becomes available, I trust that the Attorney General will take serious note of the points made by that panel of distinguished lawyers.
Kate Hoey (Vauxhall) (Lab): I thank the hon. Gentleman for giving way and for all his work as Chair of the European Scrutiny Committee. He mentioned Northern Ireland. Is he still concerned by what the Secretary of State for Environment, Food and Rural Affairs said yesterday about more power being given to the Irish Government? People sometimes say, particularly in Northern Ireland, that there is no smoke without fire.
Sir William Cash: I entirely agree. I was concerned by what I heard, and I will add that I have always believed, since the backstop’s origin on 8 December 2017, that the bottom line here was that the door would be opened to the prospect of the Taoiseach being able to hold a border poll and to maintain the aspiration for a united Ireland.
Secondly, the Prime Minister has assured me on the Floor of the House that the express repeal of the European Communities Act 1972 contained in the European Union (Withdrawal) Act 2018 would be restated in the withdrawal and implementation Bill, as enacted, including therefore the exit date of 29 March. In respect of any disapplication by the courts under article 4 of the withdrawal agreement, combined with sections 5 and 6 of the 2018 Act, the Bill would need to contain an express exclusion of the power of the courts to disapply the repeal of the 1972 Act and other related Acts. It is dangerous that, according to article 4 of the withdrawal agreement, we have been given an arrangement under the withdrawal and implementation Bill whereby the courts would be able to disapply enactments, even potentially including the 2018 Act itself or aspects of it. The repeal of the 1972 Act is the statutory anchor of the referendum vote.
There are also issues of international law with respect to the compliance of international obligations arising from the withdrawal agreement, which includes the fact in international law that the agreement, as yet unsigned even now, was negotiated in the certain and understood knowledge in the European Union that we had enacted the repeal of the 1972 Act, subject only to the question of exit day, which we are now considering. The repeal itself is paramount, and it also applies to the backstop and the constitutional status of Northern Ireland as an integral part of the United Kingdom. It is essential that the repeal is maintained within the framework of the constitutional integrity of the United Kingdom, as I have repeatedly stated with respect to the question of control over laws. To repeat what I said to the Prime Minister two days ago, she said at Lancaster House—this is a fact and it is law—that we will not have truly left the European Union if we are not in control of our own laws.
Lady Hermon: May I correct the record? I want to make it absolutely clear that the Brexit deal that the Prime Minister has signed actually protects the Good Friday/Belfast agreement on page 307, and it protects the consent principle. The constitutional status of Northern Ireland remains unchanged by the Brexit deal and the political declaration, and it would remain in the hands of the people of Northern Ireland voting in a border poll.
Sir William Cash: I am grateful to the hon. Lady for that point, but I will say in addition that we do not know what the withdrawal and implementation Bill will contain. That is the problem. That is why my European Scrutiny Committee insisted on seeing a draft of it. It is one thing to have a treaty arrangement that is still uncompleted and unsigned, but it is another thing then to know how the draftsman will attempt to implement it in a Bill that we have not even seen. That is a serious problem, and we have almost no time, as the hon. Lady will understand as a lawyer herself, to examine the significant provisions that will be in that Bill.
Lady Hermon: I am most grateful to the hon. Gentleman for taking a second intervention so promptly. I just want to repeat to him that the political declaration on the future relationship between the United Kingdom and the EU says in black and white—I have not invented this—that it protects the Good Friday Belfast agreement in all its parts. Is the hon. Gentleman suggesting that the Prime Minister and this Government do not mean and will not keep their word? I will be very concerned if that is what he is suggesting.
Sir William Cash: Well, I have to say that on the Chequers deal, for example, we went through the whole ramifications of enacting the 2018 Act including the date of 29 March, but then, on 6 July, we had it completely overturned. That is why I said in a previous debate I had lost trust in the Government and the Prime Minister. That is my point. I am asking a lot of big questions simply because I have grave doubts as to what we will be confronted with. The Bill that will enact into domestic law the arrangements that are supposed to be included in the withdrawal agreement, to which I have been so vehemently opposed because it undermines the sovereignty of the United Kingdom, Parliament and the vote, is my reason for stating now that I retain my concern and my distrust.
Jim McMahon: We need to call out the idea that the Irish Government are trying to deliberately cause problems to push for a referendum to try to get a united Ireland. The Irish government have been trying desperately to make sense of the confusing negotiations led by this Parliament and by this Government, making sure that their own interests of course are aligned. However, it is not the case that the backstop does not provide a problem for the Good Friday agreement and for Northern Ireland, because it does, and that has been the lion’s share of the debate here. If we are not part of the customs union and the single market, we must have a border somewhere. Whether on the island of Ireland or in the Irish sea, it has to be somewhere, and the idea that that can be cast aside as if it is not important is negligent. We cannot continue to have that kind of vacuous debate in here. Let us talk substance.
Sir William Cash: I can only say to the hon. Gentleman that, having been involved in these European issues for about 34 years and having some knowledge of constitutional law and the way in which these things operate in practice, I am not going to trust anybody or anything until I see a copy of the withdrawal agreement and implementation Bill, which will be rammed through this House. If we do not have a chance to look at it beforehand, it would put us at considerable risk. That is my point, and I think we need to take it into account.
I now turn to the framework for our leaving the EU lawfully under the European Union (Withdrawal) Act. Subject only to the extension of time, this is the law of the land and it is how we assert our sovereign constitutional right not merely to reaffirm but to guarantee in law that we control our own laws in this Parliament as a sovereign nation, in line with the democratic wishes of the British electorate in general elections.
The European Communities Act itself was passed on the basis of the White Paper that preceded it. In that White Paper there was an unequivocal statement that we would retain a veto on matters affecting our vital national interests. Gradually over time, since 1973, there has been a continuing reduction, a whittling away, of that veto to virtual extinction.
Leaving the EU, however, in the context of article 4 of the withdrawal agreement raises this question again as an issue of fundamental importance. We are no longer living in the legal world of Factortame—that was when we were in the European Union. When we leave, the circumstances change. We simply cannot have laws passed and imposed upon us, against our vital national interests, by the Council of Ministers behind closed doors during the transition period, or at any time. That would be done by qualified majority voting or consensus and, as I said to the Chancellor of the Duchy of Lancaster in my first intervention in the previous debate, it would subjugate this Parliament for the first time in our entire history, as we would have left the European Union. It would therefore be a radical invasion of the powers and privileges of this House, which I believe would effectively be castrated during that period of time. We would be subjected to total humiliation.
I therefore regard it as axiomatic that, in the withdrawal agreement and implementation Bill, we must include a parliamentary veto over any such law within the entire range of European treaties and laws. As Chairman of the European Scrutiny Committee, I know that we currently have about 200 uncleared European provisions and, in my 34 years on the Committee, we have never once overturned a European law imposed on us through the Council of Ministers.
Just think about it. This House will accept laws by qualified majority vote without our being there and with no transcript. Where we were once in the EU, we will now have left. Leaving totally changes the basis on which we conduct our business. Under our Standing Orders, my Committee has the task, in respect of European Union documents, of evaluating what is of legal and political importance, and it has the right to refer matters to European Standing Committees or to the Floor of the House, particularly where the Government accept the latter.
We can impose a scrutiny reserve, which means that Ministers cannot, except in exceptional circumstances, agree to any proposed law passed in the Council of Ministers in defiance of our scrutiny reserve. However, that is not a veto. Once a matter has been debated, or once the scrutiny reserve has been removed, any such law becomes the law of the United Kingdom and is thereby imposed on our constituents.
Geraint Davies (Swansea West) (Lab/Co-op): The hon. Gentleman seems to be saying that, after we leave at the end of March, there will be a transition period in which we will have no veto over European laws, which is true. Is he therefore arguing that it would be better to crash out? Does he accept there is a risk that we will not agree anything by the end of March, that we will not have an extended date, that we will crash out and that, under the Good Friday agreement, Ireland could vote to reunify? That would be a complete disaster.
Sir William Cash: The hon. Gentleman is a member of my Committee, so he knows exactly what I am saying, and he understands perfectly well that when we leave we leave. When we do leave, the circumstances under which we currently operate, under our Standing Orders, will change.
When we leave the EU, the situation becomes radically different. I therefore propose—in line with the Prime Minister’s own suggestions as set out in a carefully crafted pamphlet published in 2007 by Politeia, a think-tank—that the European Scrutiny Committee should, upon our leaving the European Union, be able to make recommendations as to how and when our veto should be invoked, as justified by our national interest.
The alternative is that we will just have laws imposed upon us. That will include, for example—I invite the hon. Gentleman and the House to listen to this—matters relating to tax policy. There are now proposals on the table to change tax policy from national unanimity to majority vote. Defence and defence procurement are also included, as is state aid. The list is endless.
Contrary to some assertions that the EU law-making process takes so long that there would be no problem, the European Union is quite capable of accelerating its procedures, and I believe it would do so by putting us at the mercy of our competitors. One recent well-known example is ports regulation. We fought that in the European Standing Committee and, despite the fact that port employers and trade unions were against it, it went through. This would happen in respect of almost any proposed EU law within the vast swathe of competences in the entire corpus of the European treaties. If that happened, we would have no redress. We would not be able to veto it if we do not get a veto, and we would not be able to affect it properly under our current scrutiny arrangements. Furthermore, the British people would be the ones to suffer, and that would include people in Scotland, too. Do not get the idea that this is a free zone situation for Scotland. SNP Members will also be affected, and they better start taking it seriously.
Sir John Hayes: My hon. Friend will know that, as shipping Minister, I fought the port services regulation tooth and nail but, because of the limits on my competence, I could not stop it happening. He is making an interesting suggestion about the role of his Committee during the transition period. Would the Committee be recommending to the Executive that they implement the veto? He would not expect his Committee to assume the role of the Government.
Sir William Cash: That is absolutely right, and I am extremely grateful to my right hon. Friend, because he was the Minister responsible for ports regulation, and he has just reconfirmed that there was nothing he could do about it. It will be even worse during the transition period and thereafter. The reality therefore is that, as set out in the proposals I have discussed, the manner in which the veto would be expressed is perhaps on a recommendation by my Committee, because it would be of such legal and political importance, but obviously it would then have to go to the Government and to the Floor of the House to decide. The exact mechanism would have to be worked out, but to suggest that it would not be a matter of immense and urgent importance to the House is to assume that we in this House are a bunch of fools. It is unthinkable that the EU could impose laws on us by qualified majority voting on any matter within the corpus and range of the European treaties without our having some means of blocking it.
Having repealed the 1972 Act, we must not find ourselves in a customs union or single market, which are themselves within the framework of the Act, not only because our manifesto is the basis on which we were elected, but because leaving the EU includes the repeal of the Act. We must therefore also protect Northern Ireland within the constitutional framework of the UK, whose Parliament—some may find this surprising in the light of what we hear from other sources—includes Northern Ireland. It is represented here as a member of the UK and helps to pass the laws repealing the Act, including section 1 of the EU withdrawal Act.
In conclusion, I can say, without prejudice to any further discussions, that we might shortly be in a position not merely to check out of the Hotel California, but to take the bus to the airport and fly out of the EU altogether.
