During the third day of the Committee Stage of the European Union (Withdrawal) Bill in the House of Commons, Sir William Cash made the following interventions:
New Clause 16
Charter of Fundamental Rights – Government Report
Sir William Cash: One of the most fundamental questions is the notion of disapplying Acts of Parliament and the supremacy that the European Court of Justice asserts over our parliamentary Acts, which the amendments would effectively transfer to the Supreme Court. As for child protection, I was in part responsible for the Protection of Children Act 1978 and I presented the International Development (Gender Equality) Act 2014, which are intrinsic Westminster Acts. We do not need the charter to do such things; we can do them ourselves
Mr Leslie: In no way would I wish to diminish the hon. Gentleman’s contribution to child protection and ensuring that legislation is as good as it possibly can be, but we currently have that extra level of protection that the charter of fundamental rights provides. New clause 16 simply asks for an analysis from Ministers of what would happen to child protection and to many other rights if we delete the charter from our current set of legal protections.
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Mr Grieve: I do not have any problem with that vision at all. It worries me that, in the course of this debate on Brexit and our departure from the European Union, in this massive upheaval of venom about the EU that I have experienced personally in the past week, which seems to have no relation to reality at all and troubles me very much, we seem to be at risk of losing sight of these aspects of real progress within our society as a result of our EU membership. They are overlooked.
Sir William Cash: I have listened to my right hon. and learned Friend with great care and interest. Will he explain why the matters to which he and the right hon. Member for Tottenham (Mr Lammy) have just referred could not be enacted? In fact, they often are enacted; I referred to the Protection of Children Act 1978, the International Development (Gender Equality) Act 2014 and so forth. Does he not understand that it is terribly important to remember that implicit in the charter—as a distinguished lawyer, he knows this—is the power of the European Court to disapply Supreme Court enactments? The Factortame case was a good example of that in respect of the Merchant Shipping Act 1988.
Mr Grieve: I thought Factortame would come along at some point in this debate. My hon. Friend is of course right about that. I know that he has spent most of his career in this House agonising over the issue of the loss or diminution of parliamentary sovereignty. That is not a matter to be neglected, and if he will wait just a moment I shall come to that point.
As I said, by raising the points he has through tabling new clause 16, the hon. Member for Nottingham East has done the right thing, because we need to focus on what is going to happen after we have left the EU. Of course my hon. Friend the Member for Stone (Sir William Cash) is correct: the laws that we have enacted, as at the date of exit, as a consequence of our EU membership and the requirement for us to adhere to the charter, will remain in place, but it is interesting that they will thereafter be wholly unprotected. For example, they will not even enjoy the special protection that we crafted in the Human Rights Act for other areas deemed to be of importance.
One solution may be that, in due course, we ought to think carefully about whether there are other categories of rights additional to the European convention on human rights—heaven knows we have been here before—that ought to enjoy the sort of protection that the Human Rights Act affords other rights. That might well be the way forward. I agree with my hon. Friend that it is slightly strange that, in leaving the EU for national sovereignty reasons, we should then say that we will continue to entrench certain categories of rights protected in the charter and give them a status even higher than, for example, prohibiting torture under the ECHR. That might strike people as rather odd. On that basis, I am forced to conclude that, if we are leaving the EU, as we intend to do, the sort of entrenchment that has previously existed is not sustainable. We will have to come back to this House to consider how we move forward, but, in saying that, I think that this is a very big issue indeed.
It worries me that, when we leave in March 2019, there will be a hiatus. There will be a gap where areas of law that matter to people are not protected in any way at all. It is no surprise, therefore, that non-governmental organisations have been bombarding MPs with their anxiety. I think that that anxiety is misplaced, because I cannot believe that any Member on the Treasury Front Bench intends to diminish existing rights. However, we are in danger from two things. One is sclerosis—that the rights development will cease. Secondly, because those rights do not enjoy any form of special status—many, not necessarily all, should certainly do so—there will be occasions when we nibble away at them and then discover that they have been lost. For that reason, it is a really urgent issue for consideration by this House, preferably before or shortly after we leave.
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Sir William Cash: I hope that my right hon. and learned Friend will not go down the rabbit hole suggested by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), which is that we should accept this incongruous proposal when in fact it involves a fundamental principle of constitutional supremacy. I am sure that my right hon. and learned Friend the Member for Beaconsfield understands that. He is identifying a number of questions, and I entirely encourage him to continue to do so. I suggest, however, that it would be very unwise indeed to follow the advice of my right hon. and learned Friend the Member for Rushcliffe as regards the Government accepting these amendments for the time being.
Mr Grieve: I understand my hon. Friend’s point. However, the purpose of this Bill, as I understand it, is to put together a package that enables a smooth transition from our presence within the European Union to our presence outside of it. That, of necessity, requires adjustments to the purity of his thinking about parliamentary sovereignty, which the Government have been required to acknowledge in the way that they have drafted this Bill. In those circumstances, it does not seem to be pushing the boundaries very much further, nor should it be seen as some treasonable article, for us to consider whether the general principles of EU law ought not to be capable of being invoked when they are probably the very thing that has, over the years, prevented the EU from turning into an even worse tyranny, as my hon. Friend would see it. [Interruption.] Well, I have to say, having listened to him, that that is usually the impression that has come across. He sees it as tyrannical because it is not moderated by the doctrine of our parliamentary sovereignty. I simply make that point; I do not wish to labour it.
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Sir William Cash: Is the hon. Gentleman about to move on to explain why Tony Blair and the Lord Goldsmith fought so hard to obtain protocol 36—I think it was that one—in the Lisbon treaty, which the Conservative party opposed? At the same time as advancing the charter of fundamental rights, will he explain why we cannot pass such legislation as we wish to in this place?
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Sir William Cash: Has the hon. Gentleman considered the impact in relation to alleged and actual terrorists on the question of national security and case law? Many people who would like those individuals to be deported would find that extremely difficult under the principles of the charter because of the provisions relating to the protection of family life, which have been badly abused.
Paul Blomfield: In his keenness to tackle the argument, I think that the hon. Gentleman has missed the point. That has nothing to do with the charter.
Let me turn to a separate but related point on schedule 1, which states:
“There is no right of action in domestic law”
post-exit
“based on a failure to comply”
with EU general principles. The schedule also prevents courts from ruling that a particular Act was “unlawful” or from quashing any action on the basis that it was not compatible with the general principles. Damages are not allowed, so general principles are rendered irrelevant, which also reduces rights. Our amendment 336 seeks to address that by retaining the existing principles of EU law regardless of whether they originated in case law, treaties, EU legislation or directives. The date on which that retention would end would be the end of a transitional period.
Let me turn to our amendment 335 to schedule 1 on the Francovich rule. I shall be brief because others have tabled similar amendments, which we support, and I want to give them a full opportunity to make their case without my anticipating what they are going to say.
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Sir William Cash: On the subject of devilish plots and “The Screwtape Letters”, may I refer my hon. Friend to chapter 12 of Lord Bingham’s magisterial work, “The Rule of Law and the Sovereignty of Parliament?”? In this context, its reference to the rule of law is highly relevant, simply because it refers, indirectly or directly, to the issue of the constitutional supremacy of law making and the construction placed upon it by the courts themselves. On that issue, the rule of law does, I think, have considerable salience.
Dominic Raab: My hon. Friend makes a considered and thoughtful point. Given the changes we are making—for the purposes of greater certainty and clarity—I respectfully suggest to my right hon. and learned Friend the Member for Beaconsfield and other hon. Members across the House that it is worth having some clarity and certainty on this point.
I turn now to amendments 285 and 286. We discussed similar amendments from the leader of the Labour party on day one of the Committee in relation to clause 6, and for the same reasons given during that debate, we cannot support them. I note again what the Prime Minister said in her Florence speech:
“The United Kingdom will cease to be a member of the European Union on the 29th March 2019”.
I will not speculate on the contents of the withdrawal agreement. The Government will do whatever is necessary to prepare for our exit and have already made it clear that separate primary legislation will be brought forward to implement the terms of the withdrawal agreement and any implementation period. With that in mind, the amendments would pre-empt and prejudge the outcome of the negotiations and introduce a straitjacket of inflexibility for the duration of any implementation period. We are all in the House committed to securing the very best deal with our EU friends and partners, and I respectfully suggest that the amendments would undermine that objective. I urge the leader of the Labour party not to press them.
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Sir William Cash: As I have already suggested, both Tony Blair and Lord Goldsmith strongly resisted the charter of fundamental rights being made part of UK law, as made clear by my European Scrutiny Committee in its report of April 2014, which anyone can read, so it is impossible to understand why the Labour party has now taken retaining the charter as its position—although as someone said to Alice said in “Through the Looking Glass”:
“I’ve believed as many as six impossible things before breakfast.”
The Conservative party categorically ruled out bringing the charter into UK law in our manifesto, and we also voted against the Lisbon treaty. That included the charter, which the European Court of Justice has since ruled did apply to us, because it includes the application of EU law as applied by the European Court of Justice, including assertions of constitutional supremacy over our Acts of Parliament and the vicarious power to disapply those Acts. An example of that—I mentioned this in my exchange with my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve)—is the striking down by the House of Lords of the Merchant Shipping Act 1988 in the Factortame case. For all those reasons, it would be unconscionable to include the charter in this Bill.
With great respect to those who have tabled amendments, the European Court of Justice’s interpretation and the case law, which is so greatly liable to EU jurisprudential elasticity by the Court itself, would thereby enable the UK Supreme Court to disapply Acts of Parliament. That is absolutely fundamental, and it would also be completely undemocratic. It has already happened under the present aegis in the case of the 1988 Act, but it would happen more and more frequently, and we would simply have to accept it, because it is not a question of opinion; it is a question of law and of fact.
Mr Jenkin: It is for the European Court of Justice to continue to interpret what the charter of fundamental rights actually means within the European Union, so if the charter was incorporated into our law, what relationship does my hon. Friend think would exist between our Supreme Court and the interpretations that would continue to be developed in the European Union?
Sir William Cash: The Supreme Court would be applying the European interpretation in that context, and I simply say that it will involve disapplication of law. It is a matter not of assertion but of fact and law that that is precisely what will happen.
I urge my right hon. and learned Friend the Member for Beaconsfield and others not to press their amendments on the charter, because to press them would be totally unacceptable. I refer to what I have alluded to already, the principle set out by Lord Justice Bingham in chapter 12 of his magisterial book on “The Rule of Law and the Sovereignty of Parliament?”, in which he publicly criticised the attitude of Baroness Hale, now President of the Supreme Court, and Lord Hope of Craighead in suggesting that the courts have constitutional authority, as against an Act of Parliament. With respect to the whole question of parliamentary sovereignty and the issue of the courts, he says that various remarks had been made but
“No authority was cited to support them, and no detailed reasons were given.
I cannot for my part accept that my colleagues’ observations are correct… To my mind, it has been convincingly shown”—
by Professor Goldsworthy, one of the greatest authorities on this subject—
“that 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”—
said Professor Goldsworthy—
“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.”
Moreover, Lord Bingham went on to say that they would then be transferring the rights of Parliament to judges:
“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.”
With some irony, the Bingham Centre for the Rule of Law has put some of the contrary arguments.
Sir Edward Leigh (Gainsborough) (Con): My hon. Friend is making some excellent points about parliamentary sovereignty, but I am not sure the point has yet been made that there has been a cosy consensus in this debate so far that everything about European human rights is wonderful and that we want to transfer those European human rights into our own law. Actually, many of us think that the advancement of European so-called human rights has been to the detriment of the rights of other people, particularly religious people, to find their own space, because European equality laws trump all other laws. When we regain parliamentary sovereignty, in this House and through our democracy, we can start asserting the right to real human rights.
Sir William Cash: I agree with my hon. Friend’s general proposition, to which I would add that it is up to us to make our own laws. We can listen to the arguments, we can make the amendments and we can recognise human rights, and all the other things, as I did with the International Development (Gender Equality) Act 2014. I entirely agree with his sentiment for that reason.
Lord Bingham went on to say:
“We live in a society dedicated to the rule of law”—
I note the reference to that by my right hon. and learned Friend the Member for Beaconsfield—
“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; and in which the judges, consistently with their constitutional duty to administer justice according to the laws and usages of the realm, cannot fail to give effect to such legislation if it is clearly and unambiguously expressed.”
I ought to add that, in fact, Lady Hale revisited that territory, before she was made President of the Supreme Court, in a speech in Kuala Lumpur on 9 November 2016.
The Conservative party opposed Lisbon, which conferred treaty status on the charter. I say this to my right hon. and learned Friend the Member for Beaconsfield with all respect, because we get on pretty well and we have had several chats over the past few days, but I trust he will recall his opposition to the Lisbon treaty and, therefore, to the charter when he was shadow Attorney General—he followed me in that post. More specifically, I hope he will recall the evidence he gave to the European Union Committee of the House of Lords, which was cited in its report published on 9 May 2016—
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I know he knows what I am about to say, but may I finish the quotation? He said that
“the European Court of Human Rights is a very benign institution, whereas I happen to think that the European Court of Justice in Luxembourg has predatory qualities to it that could be very inimical to some of our national practices”.
I would suggest that those are in respect of the question of disapplication of Acts of Parliament.
Mr Grieve: May I gently say to my hon. Friend that although this is fascinating, we are actually talking about retained EU law which will not be subject to the jurisdiction of the Court of Justice of the European Union? I do have criticisms of the CJEU and the way it has operated at times, and I have had the pleasure, or misfortune, of appearing before it. Its teleological principles and its purposive interpretation of law have often been challenging in our national setting, although it is not a pariah court and by international standards it is a pretty good tribunal. So I stand by the points I made on that occasion, but they in no way diminish or undermine anything that I have said here this afternoon.
Sir William Cash: I simply add that I understand this with reference to the European Court in its existing situation, because not until we leave the EU are we able to avoid the jurisdiction of the European Court, so that applies at least for the next two years and probably for the two after that. God knows what they will do in the meantime. My European Scrutiny Committee has been holding meetings already on the European laws that have been proposed since the general election, but the problem is— (…)
Sir William Cash: No, I will not, because, as the Chair will appreciate, I have taken a lot of interventions, as I did last time, when I took six or eight. It is impossible to get the arguments out in reply to my right hon. and learned Friend the Member for Beaconsfield, with whom I have been discussing this for an extremely long time—for the best part of 20 years—if I am constrained in this way, so I am not going to take any further interventions.
What lies behind these amendments is not only the charter itself, but the whole role of judicial interpretation and jurisprudence in its application to the UK; by virtue of the way in which the amendments would apply, the Supreme Court would inherit the power to invalidate and disapply Acts of Parliament. This is a matter of the gravest constitutional significance and it goes to the heart of the stability of this country and its rule of law. In turn, that goes to the heart of our democratic system and the right of the British people to govern themselves, whichever party they come from, in respect of how they vote in free elections, exercising their freedom of choice as to whom they decide to govern them until the next general election.
All this is intrinsically bound up with the claimed virtues of the European Court itself—it is not impartial. As I have said in the previous debate, when the European Court adjudicated on the Van Gend en Loos case and Costa v. ENEL in the 1960s and early 1970s, and the Internationale Handelsgesellschaft case, it was doing so on its own initiative, without any basis in EU treaties, until the Lisbon treaty, which we on this side of the House, including my right hon. and learned Friend, opposed. That is what did this. We opposed it. He opposed it. I simply make that point to put it on the record.
This Lisbon treaty, as the European Scrutiny Committee also demonstrated, was the Giscard d’Estaing proposal for a European constitution by any other name. It is part and parcel of the other characteristic of the European Court, which is the drive towards political integration and its interpretation of law by the purposive rule, even when the wording in question is neither obscure nor ambiguous. Furthermore, many different purposes may, from time to time, be in conflict with one another, but the driving force for them is the integrationist road map from which it never deviates and never will. It is the ultimate engineer of European integration. Equally, it has adopted a method of interpretation that neutralises the principle of the conferral of powers that were meant to be limited under articles 4 and 5 of the treaty on European Union. By doing so, it has extended the range and effect of European law by leaps and bounds. With that comes the extensions of competence, which in turn are everlastingly overarching and limitless. The European Court has never once annulled a general EU legislative act, except on one occasion, and when it did so, it was re-enacted almost immediately. It is permanently on the march in favour of political integration and by any standard is therefore more a political than judicial court.
The interaction of case law and the effect it will have in relation to our Supreme Court is of enormous importance. Professor Ekins, an associate professor of law at the University of Oxford, recently gave evidence to the Exiting the European Union Committee. He said in written evidence:
“Responsibility for deciding whether to repeal or amend EU-retained law should be with political authorities not with courts and it is unwise to maintain the Charter to allow for challenges to this law.”
He went on to say:
“The Charter is a major destabilising legal source.”
Later in his written evidence, he said:
“It would be much better, and safer, to remove the Charter from our law on exit day.”
So there we are.
It would be totally unacceptable to include the charter formally at the time of our repeal of the European Communities Act and effectively to provide for our own version of the European Court to apply the charter and empower the Supreme Court to disapply enactments. In any case, there are many provisions in the charter that expressly involve EU laws and so are themselves inconsistent with our leaving the European Union. The proposed changes to the Bill would be not only incongruous but contradictory.
The European Court is under attack from substantial, experienced and external authorities. For example, Judge Dehousse is a former European Court judge of 13 years who had previously been an adviser to the European Parliament, Commission and Council. In his farewell address to the European Court of Justice he expressed withering criticism of the Court, using expressions such as,
“everything in this episode was shocking”.
He also said:
“In the name of hierarchy, this nonsense was maintained for many years.”
He referred to the lack of consultation and to questionable and secret letters that left him “speechless”, and ended with the accusation that
“the Institution’s governance system remains out-dated, obscure, and devoid of sufficient controls.”
In my judgment, the further we keep away from the European Court, the better.
Judge Dehousse made another speech in 2017 on the future role of the ECJ in the context of Brexit, in which he said that the ECJ’s role in relation to the citizens’ rights issue is “dangerous”. He said that article 50 was invented
“to show that the EU was not a prison”,
and that the guidelines for the negotiations include
“a connection with the desire to keep some aspects of EU law applied in the UK”,
which he said
“could create an incredible legal vipers’ nest”.
He said that the UK would become the only third state to submit to the jurisdiction of the European Court, and concluded by saying that
“one wonders how this is considered acceptable for a sovereign state.”
Such comments demonstrate a real problem with the EU guidelines because, as he points out and as is clear, the EU institutions do not seem to be able to accept the massive change that the triggering of article 50 made to the European Union itself.
On amendment 10, the general principles are legal principles recognised by the European Court, which I just described in the words of Judge Dehousse, and have been regarded by the EU as essential to the EU legal order. They are the EU’s primary law, with the same status as the treaties with primacy. As it stands, under schedule 1, which we are debating with this group, the European Court would no longer be able to disapply UK Acts of Parliament or other legislation on the grounds that they conflicted with the general principles, and nor could they be made the basis of judicial review.
Given the referendum and the Second Reading of the repeal Bill, for which my hon. Friends, including my right hon. and learned Friend, and some Opposition Members voted, I do have the greatest difficulty in understanding how it can be proposed in amendment 10 to schedule 1 to
“leave out paragraphs 1 to 3”.
Therefore, despite the fact that my right hon. and hon. Friends voted in favour of the Second Reading of the Bill, this amendment attempts to protect retained EU law from challenges on the grounds of a breach of the general principles of EU law, and that seems unacceptable. The general principles under the Bill would only be part of domestic law if recognised as such by the European Court before exit day. The Bill would remove the jurisdiction of the European Court over the UK after Brexit.
Clause 6 (3) states:
“Any question as to validity, meaning or effect of any retained EU law”
must be decided by our domestic courts, including the Supreme Court.
In effect, therefore, the amendment seeks to make our courts continue to follow the general principles of EU law and ECJ jurisprudence, increasingly making us conform to EU law, particularly to the general principles of that law and the outpourings of the European Court, enabling the laws passed in this Parliament to be challenged where it diverges from EU law. That would include many matters relating to national security and terrorism, which EU case law already covers.
For all those reasons, I strongly urge my right hon. and hon. Friends—I say this with all sincerity—not to pursue these amendments. If those amendments are pressed, I call on the House to reject them. I say that because, as my right hon. and learned Friend the Member for Beaconsfield has already conceded, they are technically defective and would not make sense.
Mr Grieve: As I said, the drafting of amendments is quite a complex matter, and I am the first to accept that an amendment may not meet the exact needs of the Government, even if the Government were to seek to accept it. None the less, the position is very simple and I can only repeat it: amendment 10 will be put to the vote unless the Government give some satisfactory assurances that they will respond to it.
Sir William Cash: Let me conclude. I do hope that my right hon. and learned Friend will not do what he has just suggested. I say that because those measures are defective not only in the way that he has described, but in respect of paragraph 5 of amendment 10. The provisions refer to paragraphs 1 to 3, but there are also difficulties in relation to paragraph 5, which I will not go into now because I have made all my remarks.
I sincerely urge my right hon. and learned Friend to listen to the arguments and to accept the fact that, for very good reasons, it would not be appropriate to press these amendments to a vote.
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Sir William Cash: For the sake of the record, I would be grateful to my right hon. Friend—I nearly said “learned” because he is doing such a great job—if he also looked at paragraph 5, which, in terms of interpretation, does refer to schedule 1 as well, and so cannot be left out.
Sir Oliver Letwin: Oddly enough, I was going to say that, so I will not do so now. I agree with that. While we are at it, I hope that the Solicitor General will also tell us that paragraph 3(1) of schedule 1 will be similarly adjusted, because, clearly, we need the same principle to apply to a private right of action as applies to the quashing of an enactment.
Provided that those changes are made, I think that the basic articulation of clause 5 and schedule 1, unlike clause 6, is in reasonably good shape and therefore I hope that, as well as the very splendid offer of a full analysis of the rights, we will get a very clear statement from the Minister about the kind of amendments that will be brought forward on Report. That would certainly make me more than willing to support the Government tonight.
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Sir William Cash: On amendment 10, I am sure that my hon. Friend observed what was said about the absence of reference to paragraph 5, which deals specifically with the question of interpretation. Does he also agree that one of the greatest dangers is the idea that the Supreme Court, of its own volition after we have left, will be able to disapply any legislation? Does he not agree that that is a fundamental principle, too?
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Sir William Cash: I hope that the Solicitor General will be good enough to look at the deficiencies in amendment 10. Paragraph 5 of schedule 1 deals with interpretation and therefore also applies to paragraphs 1 to 3. As he quite rightly said before he took the intervention, the matter is being scrutinised. As Chairman of the European Scrutiny Committee, we have it on our agenda, and we are scrutinising all such matters and will continue to do so, because we want to be sure that this House is not overridden by disapplication.
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