United Kingdom’s Withdrawal from the European Union

William Cash Excerpts

Friday 29th March 2019 Commons Chamber

[The Attorney General]

Plainly, that would be open to the House to do. The problem is that we would have lost the legal right to the extension, so we would apply to the discretion of the Union for it to be granted.

Let me come back to the political declaration, because it is important that I should say a few more words about it. The process that is—

[Sir William Cash (Stone) (Con)]

On a point of order, Mr Speaker. I am seeking to catch the attention of the Attorney General, and wondered whether he might have a loss of hearing or something.

[Mr Speaker]

In my experience, the hon. Gentleman is both noticeable and audible.

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[The Attorney General]

We would have accepted the hon. Gentleman’s amendments. Clearly, in terms of the detailed working out of those amendments, in discussion—[Hon. Members: “Ah!”]. No, no, no—hon. Members can table an amendment. If it requires amendment to that legislation, we would obviously consider the detail carefully, but we would be minded to accept such.

[Sir William Cash]

I am most grateful to the Attorney General for giving way. He has referred on a number of occasions to the withdrawal and implementation Bill. He knows, as do the Secretary of State for Exiting the European Union, the Prime Minister and others, that the European Scrutiny Committee has asked repeatedly over the past month for a draft or a copy of the withdrawal and implementation Bill. He has just said that if the withdrawal agreement goes through, the withdrawal and implementation Bill will follow. If the withdrawal agreement is not approved today, will the withdrawal and implementation Bill come to this House and be introduced in any event?

[The Attorney General]

What I can say to my hon. Friend is that we would certainly give it very careful consideration. We have taken the view up till now that, before the withdrawal agreement is approved, it is premature to publish the Bill. There are certain elements of it that still remain to be finalised. However, as I have said to my hon. Friend privately, the moment we are in a position to publish it, he, as Chairman of the Committee, will be among the first to see it.

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[Sir William Cash (Stone) (Con)]

We have heard a great deal—[Interruption.]

[Mr Speaker]

Order. I understand the hubbub and air of excitement in the Chamber, for which I am sure the hon. Gentleman is suitably grateful, but the House must hear colleagues deliver their speeches—in the first instance, that of the Chair of the European Scrutiny Committee.

[Sir William Cash]

Thank you, Mr Speaker. We have heard a great deal about the process and the underlying reasons for this motion this morning, but we are really dealing with whether the withdrawal agreement should be passed and approved today, and if not, why not. The first point I make in that respect is quite simple and straightforward: under article 4 of the withdrawal agreement, we will, for a significant period, lose control over the lawmaking conferred on the House by virtue of our election as Members of Parliament according to the wishes of voters in general elections. It is unconscionable that, for whatever reason, the House should be politically castrated by the arrangements set out in article 4. For that reason alone, it is therefore unthinkable that the withdrawal agreement should be passed.

I just refer to the state of affairs within the German constitutional court, which takes precedence over all EU laws. That court often expresses rulings insisting that the EU can only operate or legislate in accordance with what the Bundestag has given it, and that EU actions are illegal if they depart from the terms in which the Bundestag gave that power. If that is good enough for Germany, it is good enough for this country, is it not?

I asked the Attorney General whether there will be a withdrawal and implementation Bill even if the withdrawal agreement goes down this evening. I got no answer, just as I received no answer from the Prime Minister to several questions I put to her about whether the Attorney General had given legal advice in accordance with the ministerial code. One characteristic of this debate is that, when we ask difficult questions, we tend to get no answer. That is not good enough, in terms of the accountability of the Government to the House. That is point No. 1, regarding control over laws. It is unconscionable.

[Mr Richard Bacon (South Norfolk) (Con)]

I am grateful to my hon. Friend, with whom I have regular discussions. He makes an interesting point about Germany, and the fact that the Bundesverfassungsgericht has often made that point. However, is it not true that that actually amounts to no more than, to coin a phrase, a political declaration by a court? Were it tested in front of the European Court of Justice, it would be shown that German law is inferior to European law in the same way as for every other member state. That is why we in the United Kingdom have to have legal exit and stop being a member state, however painful the route to get there.

[Sir William Cash]

I understand my hon. Friend’s point, but I have to point out to him that, under EU law, it has been made abundantly clear in several cases regarding the constitutional orders of member states—van Gend en Loos, Costa and similar cases—that the European Court asserts superiority over the internal constitutional orders of the country in question. The reality is that the question he and I raise demonstrates a conflict over competence, because, as I have stated, the German constitutional court will not countenance direct contradiction of its own lawmaking.

The next point I wish to make regards the Northern Ireland backstop. I know that many Members are more than familiar with this; we have justifiably spent an enormous amount of time on this question. However, it really boils down to the constitutional status of Northern Ireland within the United Kingdom. The European Communities Act 1972—[Interruption.]

[Mr Speaker]

Order. I am sorry to interrupt, but I think, if I may say so, that we should reflect on the fact that the debate is being widely viewed. It is rather discourteous when a Member is addressing the House for there to be a hubbub. Let us listen to the hon. Gentleman.

[Sir William Cash]

I add to that, Mr Speaker, that if Members are so blind that they do not want to listen to these points, it makes no difference to me. The points I am making are significant to the question of whether we agree to the withdrawal agreement.

[Mr Bob Seely (Isle of Wight) (Con)]

My hon. Friend makes a series of powerful points, but is not the problem that he is letting the perfect be the enemy of the acceptable? Today we have the chance to leave the European Union, but he and others are preventing that from happening.

[Sir William Cash]

I of course want to leave the European Union, but the problem with the withdrawal agreement is that it does not, I assert, represent Brexit, in terms of repealing the 1972 Act. As I was saying, that is an Act of Parliament not only of Great Britain but of Northern Ireland. The constitutional status of Northern Ireland is therefore at stake, with respect to the question of the Northern Ireland backstop. There is no doubt about that.

[Ian Paisley (North Antrim) (DUP)]

Is it not the case that the withdrawal agreement would cause irreversible and lasting damage to Northern Ireland and our precious Union?

[Sir William Cash]

I heard the Prime Minister repeatedly mention our precious Union. The Northern Ireland backstop drives a coach and horses through the precious Union––that is the problem. As I understand it, that is precisely why the Democratic Unionist party will vote against the withdrawal agreement today—because it puts the Union at risk.

[John Redwood (Wokingham) (Con)]

Is it my hon. Friend’s view that we are not being shown today the Bill to implement the withdrawal agreement because it would reveal that we have to remove the repeal of the 1972 Act, or reintroduce all the European Union powers, proving that this is not leaving the European Union?

[Sir William Cash]

That is exactly the point. I see the Solicitor General chuntering a little. He is a good friend of mine, but I have to say that he knows this is a serious point––the Attorney General referred to private conversations I have had, and I will now refer to one that I had with both him and the Solicitor General—and he acknowledges that it would need to be sorted out, because there is a serious worry.

What happened can be very simply stated. On 26 June last year, we passed the European Union (Withdrawal) Act 2018, section 1 of which states that the European Communities Act 1972 is to be repealed on exit day. Exit day operates in lockstep with whatever exit day turns out to be. However, the reality is that, because of the saving provisions, and under article 4, on the capacity of the Court to disapply enactments, it is just conceivable—indeed, it is highly possible—that issues of interpretation could arise.

We need to discuss this properly, but we cannot do so until we see the implementation Bill. I know that the Solicitor General agrees. In fact, some Secretaries of State—I will not disclose which—have told me that they think we should see a copy of the Bill, because until we see the drafting, we will be unable to judge its impact on the repeal of the 1972 Act, which itself is the anchor of the referendum. I repeat the point that the referendum was itself endorsed by a sovereign Act of this Parliament that transferred the decision to the British people, and the British people make that decision, in line with the wishes of the electorate.

[Sir Bernard Jenkin (Harwich and North Essex) (Con)]

I am perfectly clear that whatever the public voted for in the referendum, or at the last general election, nobody had a clue that they would be voting for a withdrawal agreement anything like the one before the House today. May I ask my hon. Friend about a matter of good faith? I interpreted the Attorney General’s remarks to be a suggestion that we should perhaps approve the agreement today in order to satisfy the technical terms of the extension agreed by the EU27, on the basis of some kind of ruse to get a further extension, even though we have not actually approved the withdrawal agreement and the political declaration in the terms that we said we would. Is that an act of good faith with our European partners?

[Sir William Cash]

I very much agree with my hon. Friend. Indeed, I will go further and say that the change of gear between 26 June, when the withdrawal Act received Royal Assent, and 12 July, when the White Paper that followed the Chequers proposals was published, demonstrated bad faith, because it must have been pre-planned while the withdrawal Bill—which I thoroughly agreed with and gave the Government every conceivable assistance in getting through––was going through Parliament. The reality is that it was produced only 10 days later, so we need only ask how the Government could write an 80-page White Paper without planning it some months in advance.

[Mr Iain Duncan Smith (Chingford and Woodford Green) (Con)]

My hon. Friend knows that I revere him when it comes to constitutional law. I wonder whether, in the course of his argument, he is not slightly making the case that we need to get to the implementation Bill, because only when we can debate that Bill will we be able to decide what protections are left. I would love to hear him speak to the Bill, because I will certainly support his amendments.

[Sir William Cash]

My right hon. Friend makes a very good point. That is why I have just asked the Attorney General for an assurance—he did not answer my question—that if the withdrawal agreement is not approved today, the Government will bring in the Bill anyway. A lot of people are telling me, as Chair of the European Scrutiny Committee—I am pleased to see the Leader of the House shake her head—that if this agreement is rejected, it will not be followed by a Bill. Is that crystal clear? I look to the Leader of the House for confirmation. Is it quite clear that there will be no Bill if this agreement is rejected? She does not answer.

The European Council decision is yet another example of the manner in which this great country has effectively capitulated to the demands of the European Council. That is one of my greatest objections to the motion. Last March—a whole year ago—the European Scrutiny Committee produced a report stating that we should never have accepted the sequencing or the terms of reference laid down by the European Union. That was capitulation, not compromise. It is so important that the House recognises that in the vote today.

[Lady Hermon (North Down) (Ind)]

I am enormously grateful to the hon. Gentleman for giving way—my patience has paid off. Let me take him back to his remarks about Northern Ireland. May I gently remind him that the DUP does not speak for the majority of people in Northern Ireland? May I also reflect on the fact that the Prime Minister cares deeply about the United Kingdom? She cares so deeply about the United Kingdom that the Good Friday Belfast agreement and the consent principle are protected in black and white in her withdrawal deal, and therefore the constitutional status of Northern Ireland remains the same: it remains in the hands of the people of Northern Ireland voting in a border poll.

[Sir William Cash]

I have great respect for the hon. Lady. I will only say that we have had this debate before and we differ on the matter. Of course I want to see the Good Friday agreement retained, because it has been a tremendous triumph, and I in no way wish to disparage that. However, there are very serious questions about the constitutional status of Northern Ireland as a result of the backstop. I have heard hon. Friends—good friends of mine—who themselves may have changed their minds on whether to support the withdrawal agreement, repeatedly objecting to the backstop. We have had the distinguished Attorney General and Solicitor General opining on the subject. We have had some very interesting outcomes. However, the reality is that the backstop is an insuperable impediment to the House agreeing to the withdrawal agreement.

[James Cartlidge]

My hon. Friend talks about opting back into the European Communities Act, which we all know is what will happen in the transition, but there is a key word there: “transition.” Does he accept that the risk of defeating the withdrawal agreement today is that we will stay in the European Communities Act forever?

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[Sir William Cash]

No, because I have heard no suggestion, from either side of the House, that the repeal of the 1972 Act would itself be repealed—there is no question about that. The reality is that, because that is an Act of Parliament and therefore set in stone, I do not believe that will happen. Furthermore, the consequences of our moving on to the next phase will reinforce that. I can only say that the British people will be incredibly angry—devastated—if they find that the repeal of the 1972 Act is repealed. That would be a massive breach of faith with the British people.

[Kevin Hollinrake (Thirsk and Malton) (Con)]

I understand that my hon. Friend opposes the motion on the basis that he wants a clean break with the European Union, but does he not realise that he will be walking through the Lobby with people who want a very soft Brexit or no Brexit at all? Either he or they will be very disappointed.

[Sir William Cash]

I have witnessed over the past few weeks members of my own party, tragically, repeatedly going through the Lobbies with the Opposition. I even saw the Prime Minister going through the Lobby with the Leader of the Opposition on a certain motion. That is because of the enormous issues that are at stake in relation to the question of who governs us. That is really why this entire debate is so vital for our future. That is why repeal of the 1972 Act is central to that question.

[Dr Andrew Murrison (South West Wiltshire) (Con)]

I particularly appreciate my hon. Friend’s remarks in respect of Northern Ireland, but the hon. Member for North Down (Lady Hermon) is precisely right. Will he reflect on the fact that bastions of Unionism such as the Federation of Small Businesses, the CBI, the Ulster Farmers’ Union and Ulster chambers of commerce are all in favour of the withdrawal agreement?

[Sir William Cash]

I know that, and I have heard it, but so has the DUP.

[Nigel Dodds (Belfast North) (DUP)]

Will the hon. Gentleman give way?

[Sir William Cash]

I simply say this before giving way to the right hon. Gentleman. The reality is that DUP Members sit in this House having been elected on a proposition. This issue is all about democratic decision making. It is about the honesty with which we approach it. It is to do with the trust inherent in our taking the instructions of the British people in accordance with the sovereign referendum Act.

[Nigel Dodds]

The Democratic Unionist party has never pretended that it represents the majority or everyone in Northern Ireland, but it represents more people than anybody else. The fact of the matter is that no party in this House that is in government in Scotland, Wales or here represents a majority. We have the same proportion of votes as the SNP in Scotland.

Let us be very clear. As the hon. Gentleman pointed out, never mind individual voices or business groups, every single Unionist party in Northern Ireland—the Ulster Unionists, the Traditional Unionist Voice, the Progressive Unionists—agrees that this is a problem for the Union. Let not people pretend otherwise. That is why we have worked hard with the Prime Minister to try to get changes to the backstop that would have allowed us to vote for the withdrawal agreement. That is why we backed the Brady amendment. That is why we work with her. Sadly, we have not made sufficient progress, but let no one pretend that we do not speak for the Unionists of Northern Ireland.

[Sir William Cash]

I agree with every word that the right hon. Gentleman said. That is true. It is not good enough to talk about our precious Union and then to damage it. It is not good enough to say that we will not truly leave the European Union unless we regain control over our laws, which the Prime Minister said in the Lancaster House speech, and then for us to arrive at a point where we are politically castrated, precisely because for a number of years we will be put at the mercy of our competitors—for example, in relation to state aid. That is the key issue. It is not just the question of sovereignty in its own right; it is the practical impact.

[Several hon. Members rose—]

[Sir William Cash]

It is important now for me to end my remarks—[Hon. Members: “Hear, hear!] I expected that from the rabble across the road. That does not trouble me one bit.

I have done my best over many years to ensure the democracy and sovereignty of this House, and I will never give way on that point. For me, this is a matter of principle. The record speaks for itself. I wish I could vote for this withdrawal agreement, but for me, it comes down to a simple question of integrity and principle. Anyone who wants to question me on that can do so, but I am doing this for the best of intentions, as a matter of conscience and as a matter of record.