The House of Commons approved yesterday the EU (Withdrawal) Bill by 324 votes to 295 – a majority of 29. The Bill will now pass to the House of Lords. During the debate, Sir William Cash made the following interventions:
(…)
Matthew Pennycook: After the transitional period, the ECJ would not be the adjudicator. That would be dealt with as a matter of retained law. My hon. Friend has reinforced a point that I made earlier. We need a level of enhanced protection and the courts need clarity on how to interpret this new category of law, because if they do not have that clarity and certainty, they will be more vulnerable.
Sir William Cash (Stone) (Con): I hope shortly to be able to make a brief speech on that very subject, dealing with the question of whether or not there should be a power for the courts to disapply Acts of Parliament in relation to the matters to which the hon. Gentleman has referred.
Matthew Pennycook: I am not sure that that warranted an intervention, but I await the hon. Gentleman’s contribution with bated breath.
(…)
Mr Clarke: (…) The point I am trying to make is that, whatever the basis on which we come out, there are bound to be adverse effects on the British economy if we create new barriers between ourselves and the biggest free market in the world. No other Government would remotely contemplate moving out of such a completely open and free market and deliberately raising barriers by way of tariffs, customs processes or regulatory divergences between themselves and such a hugely valuable market. It is particularly valuable to us not only because it is a huge market but because it is on our doorstep. We have played a major part in creating this totally open trade.
If we proceed to a deal in which we withdraw, we will inevitably find ourselves, to some degree or other, taking an economic blow and probably making future generations less prosperous than they would otherwise have been. It is important that we all realise that, which is why it is a great pity that the House is not being given the information necessary to make a really informed judgment, as the hon. Member for Glenrothes (Peter Grant) has just said, or being allowed any opportunity to guide the Government and hold them to account for the course on which they are set on these economic and trading implications.
Sir William Cash: In his assessment, has my right hon. and learned Friend taken into account the fact that services within the European Union have never been completed under the single market? Furthermore, our deficit in the past year with the other 27 member states has gone up by another £10 billion, while our surplus in our trading with the rest of the world has grown exponentially by another £6 billion or £7 billion, so I really rather doubt his conclusions.
Mr Clarke: I entirely agree with my hon. Friend’s first point. For as long as I can remember, it has been the policy of Conservative Governments, some of which I have served in—indeed, it is a policy in which I have been involved from time to time—to press for the single market to be extended to cover all services. Until the referendum almost 18 months ago, we were still actively engaged in canvassing for that and trying to push it forward inside the EU. We are also making considerable progress towards a digital single market across Europe, which will be very important. The other member states are likely to go on and complete that quite soon.
(…)
Mr Leslie: It might be my intention to give way to the hon. Gentleman, but I might change my mind by the time I get there. I can walk towards a Division Lobby while thinking that it is my intention to vote for a particular issue, but I might change my mind at the last minute. We are all able to change our minds. That is the nature of life, and we can all do the same in a dynamic democracy and Parliament.
Article 50 says that treaties shall cease to apply from
“the date of… the withdrawal agreement or, failing that, two years after the notification”,
but we will have left only after those events. Article 50 is of course silent on what happens during the two-year interim period before the agreement. We are still full members of the European Union, prior to the withdrawal agreement or the expiry of the two-year period, so it stands to reason that we should continue to act as such. The framers of article 50, who include Lord Kerr, said that a “request readmission after negotiation” clause was not necessary because that was taken as read. That is how the 1969 Vienna convention on the law of treaties operates, and it is accepted by many jurisdictions around the world. Article 68 of the Vienna convention states:
“A notification or instrument… may be revoked at any time before it takes effect.”
That is the widely understood nature of such treaties.
Sir William Cash: I just thought that I would draw the hon. Gentleman’s attention to the European Union (Notification of Withdrawal) Act 2017. I do not think that he voted for it, but 499 other Members did, and it passed the House of Lords, so I would have thought that that would be quite a difficult problem for him to overcome.
(…)
through the Lobby with us tonight to vote to make sure that that happens.
Sir William Cash: The European Scrutiny Committee, of which I have the honour to be Chairman, has been holding inquiries into the fundamental constitutional implications of the Bill, including clause 5. As is now shown on its website, I have had correspondence with the Prime Minister on its behalf since December. The provisions I refer to would empower the courts, for the first time in our Westminster-based legislative history, to disapply Acts of Parliament. This is no theoretical matter. Indeed, we are advised that such disapplication is likely to apply to a whole range of enactments, including those relating to equality, terrorism, data protection and many other matters.
I raised this massive constitutional issue, as I regard it, in Committee on 14 and 21 November, including by reference to the authoritative statements made by the late Lord Chief Justice Bingham in chapter 12 of his book on the rule of law and the sovereignty of Parliament. Let us bear in mind that he is one of the most authoritative judges in recent generations. He says:
“We live in a society dedicated to the rule of law; in which Parliament has power, subject to limited, self-imposed restraints, to legislate as it wishes; in which Parliament may therefore legislate in a way which infringes the rule of law;”—
I repeat, “infringes the rule of law”—
“and in which the judges, consistently with their constitutional duty to administer justice according to the laws and usages of the realm, cannot fail”—
I repeat, “cannot fail”—
“to give effect to such legislation if it is clearly and unambiguously expressed.”
In that book, he publicly criticised the attitude of Baroness Hale, who is now President of the Supreme Court, and Lord Hope of Craighead for suggesting that the courts have constitutional authority as against an Act of Parliament.
Lord Bingham also specifically approved the analysis of what he described as the “magisterial” authority of Professor Goldsworthy, whom he quoted as follows:
“the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it… What is at stake is the location of ultimate decision-making authority… If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe on unwritten rights, they would be claiming that ultimate authority for themselves.”
He went on to state that they—the judges—would then be transferring the rights of Parliament to themselves as judges. He says:
“It would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum.”
That is the basic principle.
Members of this House and the House of Lords, including former Law Lords and members of the Supreme Court, are themselves deeply concerned about—
Mr David Jones (Clwyd West) (Con): Lord Neuberger, who is the former President of the Supreme Court, has also expressed concern about the perceived illegitimacy of judges overturning Acts of Parliament. Is my hon. Friend concerned that the power in clause 5 to disapply Acts of Parliament might result in a worrying politicisation of the judiciary that I would have thought would be unwelcome not only to hon. Members but to the judges themselves?
Sir William Cash: I am indeed. I am grateful to my right hon. Friend, who also serves on the European Scrutiny Committee. The provisions I refer to would be express provisions. Therefore, the question of principle is fundamental and will also, no doubt, be taken up in the House of Lords. Furthermore, former Law Lords and members of the Supreme Court have expressed their concerns.
The European Scrutiny Committee’s unanimous view when we met this morning was that Parliament as a whole needs a solution that confirms the principle of parliamentary sovereignty along the lines of declarations of incompatibility under the Human Rights Act 1998, as I indicated in my correspondence with the Prime Minister, whose letter I received on 9 January. To take this forward, may I ask my hon. Friend the Minister to intervene to give me and the House an assurance that when the Bill is in the House of Lords, the Government will constructively engage with the European Scrutiny Committee, with any other Committees of both Houses and with the advice of the Attorney General and the Lord Chancellor to explore and find a proper solution to the constitutional issues I have raised in the national interest?
Mr Baker: I am grateful to my hon. Friend for the case that he has made. The Government are well apprised of the issue that he has brought to the House. It is absolutely right that we respect and uphold parliamentary sovereignty— (…) That is why in the Bill we treat retained direct EU legislation as primary legislation for the purposes of the Human Rights Act, and why we have taken the approach we have to challenges based on the general principles. Bearing in mind what my hon. Friend has said—and, indeed, what my right hon. Friend the Member for Clwyd West (Mr Jones) has said—and the view of the Select Committee, which he has just set out, we will of course listen carefully to him and his Committee, and the other individuals he has mentioned, as the Bill continues its passage.
Sir William Cash: I am most grateful to my hon. Friend for his response. May I simply say that these are issues of immense constitutional importance? My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) mentioned that yesterday and we have had debates on it in Committee, and I am most grateful for my hon. Friend’s assurance.
(…)
Mr Grieve: Thank you, Mr Speaker. I shall endeavour to practise courtesy by act rather than by anything else, in being brief.
It is a pleasure again to participate in this afternoon’s debate, which is wide-ranging and has moved away from the rather narrow focus of some of the perfectly sensible amendments that have been tabled and that are designed to explore the undoubted deficiencies in the legislation; for example, the Opposition have put forward sensible proposals in new clause 1. Those are matters that we have looked at for a considerable number of days.
I wanted to focus on an issue that has arisen this afternoon and is a particular concern to me. In doing so I do not want to repeat what my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) said. I agree with every word he said, and there is no point in my saying it again. There is a separate angle, however, on which we might pause and reflect. New clause 17 raises the issue of whether we should have continued participation in the single market and customs union.
If we look at the Bill as drafted and at its original intention, particularly now that the pernicious effects of clause 9 have been removed, we can see that it is about the legal order of the United Kingdom after we have left with no deal at all. So an argument can be made that this legislation is perhaps not the most satisfactory place to try to bring in the single market and customs union. However, that raises an entirely legitimate issue. Ultimately, as we trundle on with the legislation it becomes more and more apparent how different it is from the Government’s intention regarding the end product that it wants the country to enjoy.
The Prime Minister set out her vision in the Lancaster House and Florence speeches. As I have said before, but it is worth repeating, if she succeeded in achieving everything that she set out, there might well be broad consensus in the House, because we would lose those aspects of EU membership that we do not like and at the same time we would retain all the benefits of EU membership that we—or at least many of us, the vast majority of hon. Members—consider desirable.
The truth is that most of us—again, I suspect—in the House know that that is unlikely to be achieved. We are asking our EU partners to engage in the bending of the rules of the legal order, which is not something that can be readily obtained. We started out on this negotiation with a major fallacy: the EU can somehow be twisted around from matters of self-interest into entirely changing its nature. In fact, it is an international treaty organisation underpinned by law: that is what it is. Having visited Brussels on Monday, it was brought home to me—I already knew it—very clearly that that is indeed the nature of the entity with which we are dealing. Unless we are realistic about that we cannot hope to secure a reasonable outcome to our negotiations.
What troubles me particularly is the timing of all this. The reality is that the EU, for very good reasons, wants order. It is a legal order, and it wishes order to exist, even when countries are leaving it. The point was made to us that ultimately it would negotiate according to our red lines and, if we decide to put red lines down that make it impossible to reach the sort of agreement that the Prime Minister wants, we will not secure that agreement—it is very simple. On top of that—I would like to add this point to the one made by my right hon. and learned Friend the Member for Rushcliffe—all of this is likely to come to a head at a very late stage indeed for rational judgments by the House about what is in the national interest.
Some of my right hon. and hon. Friends on this side of the House seem positively to relish the prospect of the negotiations collapsing and our leaving the EU with absolutely no deal at all. I believe that that would probably be the single most catastrophic act perpetrated by any Government on this country in modern history, so I do not intend to allow that to happen. I simply make this point to my friends on the Front Bench, who have the difficult task of taking this project forward. On the point that is raised in new clause 17, this may not be the right place to amend the legislation, which is not particularly germane to it but, my goodness, it is a relevant point. At what point can the House and, indeed, the public have a proper understanding of what the Government have succeeded in negotiating? At the moment, it reminds me very much of the company set up at the time of the South Sea bubble in the early 18th century that said: “A company to be of great and inestimable value to its shareholders. Nobody to know what it is.”
That is what we have been asked, regularly and on a daily basis, to continue signing up to while the negotiations proceed. Furthermore, on the timings, it is likely that when we are finally told a bit more it may be too late to take the sensible decisions that the House ought to take in the national interest and in conformity with what the referendum result was all about.
We cannot abdicate that responsibility. In truth, we have been left completely in the dark. Indeed, the Government themselves are in the dark, because we do not even really know whether we can secure a withdrawal agreement, for the reasons I gave in an intervention regarding our relationship with Ireland. The transitional arrangements look pretty clear, but I fear—the pejorative term might be the vassalage that my right hon. Friend the Foreign Secretary dislikes—something that inexorably takes our country towards continuing membership of every institution of the European Union without our having any influence over policy making.
Sir William Cash: In his discussions with Mr Barnier, did my right hon. and learned Friend gain any impression that the European Commission, and indeed Mr Barnier himself, had taken on board the fact that in relation to the legal order to which my right hon. and learned Friend refers—the European Union and its institutions—article 50 actually represented a radical change by giving people the right to withdraw if they wished? That changed the nature of the European Union from the day on which article 50 was passed as part of the Lisbon treaty.
Mr Grieve: I am not sure I entirely agree. I do not think that Mr Barnier has ever suggested that the United Kingdom cannot withdraw under article 50—we plainly can. Indeed, new clause 6 deals with the question of whether article 50 is revocable. I think that it almost certainly is, so it is a pertinent question for the House to ask, although it is not an easy one for the Government to answer, in fairness, as ultimately it could probably be determined only by the European Court of Justice.
(…)
Sir William Cash: In brief, this Bill, with clause 1, which says that we are repealing the European Communities Act 1972, reflects the will of the people on 23 June 2016 and the will of this House, as expressed in the votes. So there are two absolutely valid reasons why this Bill must go through: it represents the will of the people outside the House; and it represents the will of the people inside the House. Therefore, I say one thing only when it goes to the House of Lords: those in the House of Lords must surely realise that they agreed to the European Union Referendum Act 2015, a sovereign Act of Parliament, which went through and enabled the question of whether we leave or remain in the European Community to be decided by the people outside. That was a transfer of power deliberately taken by this House and it must be carried through.
That is all I need to say, other than that for 33 years it has been my privilege to try to fight for this proposal and I am deeply grateful to all the people in the House who have agreed to it and to those who have exercised their democratic right to oppose those views.
