Retained EU Law (Revocation and Reform) Bill

William Cash Excerpts

Consideration of Lords message
Wednesday 21st June 2023 Commons Chamber

[The Solicitor General]

I am delighted to have given way to the hon. Gentleman, not least because I like him a lot and because of his smile, but also because of his warm welcome for the Government’s position. I entirely disagree with him; he is wrong. On the last occasion he intervened, he did not hear the whole debate. I invite him to do so this time because, when he does, he will see precisely what the Government’s position is.

I make it clear that we are not rejecting these amendments out of hand. As I stressed in our last debate on the Bill, and as acknowledged by Baroness Chapman in the other place, we have listened to their lordships’ views. We have worked collaboratively on a number of issues and made fundamental changes to the Bill. There has also been significant collegiate working on the reporting requirements that will provide robust scrutiny. Parliament will be able to examine the Government’s plans for reform up to six months ahead of the legislation being tabled, thanks to the regular reporting brought in by that amendment.

Lords amendment 42D is based on the process contained in the Legislative and Regulatory Reform Act 2006, which is a very different beast from a very different Bill designed for a completely incomparable power. A legislative reform order is capable of operating on any statute, including Acts of Parliament, whereas the relevant regulation-making power here is limited to secondary retained EU law, which is not primary legislation.

Further, I respectfully disagree with the noble Lord Hope when, in the other place, he described the process in his amendment as “light touch”, not least because of the fundamental issue of time, which is crucial when we consider how long parliamentary processes can take. Lords amendment 42D envisages up to 60 sitting days for Parliament to consider and debate proposals for statutory instruments, and potentially time after that for further scrutiny before an SI can be made. By adding such significant time for additional scrutiny, this amendment would place in doubt the effective use of the repeal and replace powers before they expire.

Perhaps that is the intention. This is the additional friction that was so neatly alighted upon by my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) during one of our previous debates. Additional, deliberate friction, as my noble Friend Lord Callanan said in the other place

“is not about additional parliamentary scrutiny; this is actually about stopping Parliament acting in this area.”—[Official Report, House of Lords, 20 June 2023; Vol. 831, c. 117.]

It is perhaps worth noting that, since 2008, only 35 LROs have been brought forward.

[Sir William Cash (Stone) (Con)]

My hon. and learned Friend is making some excellent points. He has just referred to Parliament as a whole but, in this particular context, a difficulty arises in subsections (6) to (8), which confer a power on the House of Lords to, let us be honest, effectively block proposals if it decides so to do. That is an inherent objection.

[The Solicitor General]

I am grateful to my hon. Friend. Knowing him, he will develop those points in due course. He agrees with what my noble Friend Lord Callanan said in the other place, that this is not about additional scrutiny so much as about preventing Parliament from acting.

It is right to say that Lords amendment 42D has been given serious consideration, as were other iterations previously before this House. It is disappointing and hardly conducive to constructive conversation or detailed debate to resort to insulting hon. and right hon. Members, as unfortunately happened in their lordships’ House yesterday. Apart from my noble Friend Lord Callanan, their lordships have not grappled with the provisions already in the Bill for a sifting committee, the detail of which is found in schedule 5, and which will result in significantly more scrutiny than EU law had when it was first introduced into our law.

On Lords amendment 15D, I have little to add to what has been said many times. We have repeatedly made commitments, at every stage of parliamentary passage, that we will not lower environmental protections. Our environmental standards are first class: the Agriculture Act 2020, the Fisheries Act 2020 and the landmark and world-leading Environment Act 2021.

The Labour party has a choice, both in this House and in the other place. Will it choose to frustrate this necessary post-Brexit legislation, this natural next step that was always going to have to happen? Will it continue to delay the delivery of the significant opportunities that await us? The Government want to get on with the job. Enough is enough.

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[Justin Madders]

I thank my hon. Friend for her intervention. I agree with it, which is why we are continuing to support the Lords on this amendment.

The Minister has referred to the conditions of previous iterations of this amendment as both “burdensome” and “unnecessary”. It is of course complete nonsense that something can be both of those things at the same time. A burden would be an additional requirement, but the Government also consider such amendments unnecessary. That implies that these are things they intend to do in any case, yet in their eyes they somehow remain a burden. I am sorry to say that I have yet to alight on any rational explanation for that stance, and poor Lord Krebs has stripped away his amendment to the bare minimum now in the futile search for common ground. His new version of the amendment has just two elements, instead of the four in the previous version. The remaining ones are non-regression on environmental protections and consultation with relevant experts; he has dropped the requirements for compliance with international obligations and transparency in reporting on expert advice. I would have thought that the two dropped conditions ought not to have been considered too troublesome for a Government committed to maintaining environmental protections, but we are where we are.

The Lords amendment therefore simply puts in the Bill what the Government say they intend to do in any event, yet the objections remain. We should be mindful of what the Government’s own watchdog, the Office for Environmental Protection, said in its evidence on this Bill, which was that it

“does not offer any safety net, there is no requirement to maintain existing levels of environmental protection.”

I find myself both bemused and alarmed by the Government’s intransigence on this issue. When they are not listening to their own watchdog and instead present arguments that disintegrate on the barest of examinations, it is right that we should continue to press for this amendment. If everything that was said at the Dispatch Box became law, we would not need legislation, but I am afraid the longer this goes on and the more unreasonable the objections become, the stronger the case becomes for putting in the Bill the protections the Government say they want to see.

The confidence that the public have in this place has been severely tested in recent years. If our democracy is to work, and if we want people to engage and participate in the democratic process, what a Government say has to be honoured and has to be seen through, otherwise we risk forever losing trust in the political process. Once that trust has died, it cannot be brought back to life by magic or by good intentions. So I say to Conservative Members: think very carefully about how you vote on this Lords amendment. If they trust the Government to keep their word and can find a way to reconcile that blind faith with the Government’s refusal to put those promises in law, they should vote down the amendment. But if that word is broken, they should not ever expect anyone to trust the Conservative party to stick to its promises on the environment or any other matter, ever again.

Lords Amendment 42D tackles one of the most controversial clauses in the Bill, clause 15, which the Hansard Society called the

“‘do anything we want’ powers for Ministers.”

I remind Members that the Hansard Society is a body whose opinion ought to mean something. It describes clause 15 as that because, as has been extensively covered previously, it empowers Ministers to revoke regulations and not replace them; replace them with another measure that they consider

“appropriate…to achieve the same or similar objectives”;

or to “make such alternative provision” as they consider “appropriate”. Those are extremely broad powers covering broad areas of policy.

If this Bill has taught us anything, it is that the reach of EU regulations permeates every aspect of life and covers many important issues that most people would expect Parliament to have a say over: consumer rights; public health; the environment; and, of course, employment rights. These regulations cover many things that many people would want to see protected, and many more things that nobody said would be removed or watered down back in 2016.

I pay tribute to Lord Hope for trying to find a compromise that the Government can accept. I fear that, as with Lord Krebs, his efforts will be in vain. In short, this latest amendment would see a Committee of this place sift regulations made under the clause, following an explanation by the relevant Minister as to why that particular regulation is required or desirable. It should be noted that Lord Hope made it clear in the other place that this Committee would be a Commons one only; how ironic that an unelected Lord is the one pushing an amendment to give the elected Commons more say in how our laws are decided, and that the Commons is resisting this move. Perhaps he, at least, understands what taking back control was meant to be about.

The Lords amendment further provides that once the Committee has considered the Minister’s explanation, it can, if it wishes—it is not required to—draw special attention to the regulations in question, following which the Minister must arrange for them to be debated on the Floor of each House. The Minister must then have regard to any resolution of either House and may, but is not required to, amend their proposal in the light of what has been resolved. The Committee can also recommend that the proposal should not be proceeded with, but, in the true spirit of taking back control, this House will get the final say on that. Is this not what the true spirit of Brexit was really about: the democratically elected Members of this House asserting influence and passing our laws?

I am sure that we will hear, once again, the fallacious arguments that because these laws were passed in the first place without proper democratic involvement, that means, by some twisted logic, that it is fine now to hand all the power over these laws to Ministers, without any reference to Parliament. Those arguments do not wash because they come from a place that says that anything that originates from the EU is bad and we therefore do not need it. Tell that to the millions of people enjoying paid holidays for the first time, to the disabled passengers who were given priority on transport for the first time and to the millions of people who have kept their job because of TUPE protections. I do not believe anyone who voted to leave the EU voted to dispense with those rights. If it is the Government’s intention to change any of those protections, or the thousands of others that our citizens enjoy, it is only right that this place has a say in that.

I am afraid the lack of transparency that this Bill represents, and the sidelining of genuine scrutiny, show up all those arguments that were made back in 2016 about sovereignty for what they are: a fig leaf for a select few to shape and determine the future of this country without reference to Parliament, and certainly without reference to the people they are supposed to represent. Democracy in the 21st century does not die in one swift act, but erodes over time, bit by bit. This Bill is another example of that, and until this Government restore basic democratic principles, we will do all we can to oppose it.

[Sir William Cash]

I have read with great interest the record of the proceedings yesterday in the House of Lords, noting some extremely wise and democratically well judged comments by those such as Lord Hodgson of Astley Abbotts and Lord Hamilton of Epsom. I note, however, that Lord Clarke of Nottingham, with whom I have crossed swords a few times in the past, to say the least, was conspicuous in his support of Lordusb Hope of Craighead’s amendment, as were a number of others I do not have time to mention, although their appearance in the Division list was entirely predictable.

I wish to add that the wise words of the Lord Hodgson and Lord Hamilton reflect not only a question of parliamentary sovereignty in relation to the elected House, but the elected will of the people, both in the referendum in 2016, the anniversary of which is almost upon us, and in the general election of December 2019, where there was a massive majority to get Brexit done. It is therefore also a manifesto commitment, clear and unequivocal, which invokes the Salisbury doctrine. The Government have stood firm in these proceedings; I was extremely glad to hear my hon. and learned Friend the Solicitor General yet again showing the degree of diligence and determination that is necessary, and I know he will continue to do so in this matter of retained EU law. I also speak as Chairman of the European Scrutiny Committee, whose report was unequivocal on the subject. I am glad to say that the Government supported the amendment I proposed, which is part of this exchange between the Lords and the Commons.

Lord Hope of Craighead and Lord Pannick are on the same page with regard to what they term a “constitutional principle”. I note the judicial and legal enthusiasm for the amendment they have put forward, which demonstrates the issue of parliamentary sovereignty. Indeed, Lord Hodgson rightly referred to “parliamentary sovereignty” when he read out what I had said in the House of Commons on the subject the other day, about the Lords’ “intransigence” in this matter. The amendment is a matter of democracy, as well as constitutional principle, because it involves the elected House and its majority view.

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[Sir Robert Buckland (South Swindon) (Con)]

In another attempt to recreate complete déjà vu, I follow the hon. Member for Stirling (Alyn Smith) again, as I did some weeks ago. I will not repeat the point I made to him about his remarks on devolution, in an otherwise beautifully constructed speech, with which I respectfully completely disagree.

We are left with two issues. The first issue can be dealt with fairly swiftly. I do not see the need to put on the face of primary legislation a non-regression clause. The Government have been crystal clear about their approach to environmental standards and I know from my own inbox experiences, and from those of many other right hon. and hon. Members, that the British public just will not have a regression from high environmental or food safety standards. They are the sort of standards where we have led global opinion about regulation. With respect to Lord Krebs, I do not see the need for that amendment.

However, I will press the Solicitor General, my hon. and learned Friend the Member for Mid Dorset and North Poole (Michael Tomlinson), on amendment 42D. While I accept that in its detail there might be some further work, I think 60 days is a long time. In effect, that would mean 60 working days, so if one started in late July, the matter may not be resolved until October or November. I can see that is an issue, but I pray in aid what the noble Lords said about the need to disaggregate this issue from the issue of Brexit. It does not matter about the source of the law or where it comes from; this is a question of the ability of this place—Parliament—to scrutinise the operations and decisions of the Executive.

I am always interested to listen to the careful words of my hon. Friend the Member for Stone (Sir William Cash). I thought that his exposition of Lord Hope’s position on parliamentary sovereignty was a fair one. He and I actually agree quite strongly about parliamentary sovereignty and the need to avoid the trend in the noughties—before the current Supreme Court—to downplay the role of parliamentary sovereignty to suggest that, somehow, we have moved on from the age of Dicey, and the role is no longer unqualified. I think he and I agree on that—we are both defenders of sovereignty—but to pray in aid an argument about ceding powers of the judiciary is rather odd bearing in mind the context of the amendment. The amendment is all about giving more power to this place and, indirectly, I accept, to the other place.

[Sir William Cash]

I made a very careful distinction. I appreciate the point that my right hon. and learned Friend is trying to make, and accept, of course, that Lord Hope of Craighead is a very distinguished judge and a member of the Supreme Court. I thought that it might just be relevant to draw attention to the fact that, in the context of parliamentary sovereignty, Lord Bingham used some quite trenchant words with regard to the judgments that he had observed both from Lady Hale and from Lord Hope. That was all.

[Sir Robert Buckland]

I entirely agree with my hon. Friend’s analysis. I think that we are on the same side on this. I have always been extremely vigilant in observing, scrutinising, criticising and making my own comments in lectures outside this place about the dangers of going down that road and of not understanding that, far from being mutually contradictory, the rule of law and parliamentary sovereignty are both sides of the same coin. If we do not have strong parliamentary sovereignty, the rule of law itself is undermined. The rule of law is a political concept rather than the law itself, and, I think, that that is sometimes misunderstood. It is the duty of Conservatives, from my hon. Friend right through to me, to remind this place and other places about the importance of these principles. We agree on that, but that is not the precise context of this amendment. The amendment is legitimately and properly seeking to make sure that this place has a role in the scrutiny of the revocation of legislation.

I do not accept the arguments that there is an attempt, certainly by the mover of this amendment or of some of the others who spoke in the debate, to try to frustrate the purpose of this important Bill, which I support. We are at a stage now where, with the greatest respect to my hon. Friend, we should not concern ourselves with the Salisbury Acts, because the Lords have given us a Second and Third Reading, and that convention relates to the commanding heights of a Bill, but we are now down to the dirty detail, and that is what we are talking about. Therefore, it is important that we lean into this process in as sensible a way as possible to see whether there is a potential compromise—either by a reduction in the number of days, which I would agree with, or, indeed, by looking again at the precise role of the other place with regard to the approval or otherwise of any regulation. That is what I would be seeking to do if I were in my hon. Friend’s place, because I detect that there is, if not a head of steam, a determination by the noble Lords to press the Government on this particular issue.

As I have said before, if we start to take the “B” word out of this issue and look at it on the basis of parliamentary scrutiny, then perhaps we can take the heat out of the debate and have something far more considered and reasonable.

[Sir William Cash]

My right hon. and learned Friend may be just ducking an issue, which is that, actually, it is not about the “B” word or Brexit as such; it is about parliamentary democracy and sovereignty, the general election and the referendum as well. We are talking about a massive amount of law. I am glad to note that the Government accepted my proposal that we should examine the list and have a proper list. However, having said that, I am afraid that I do not agree with my right hon. and learned Friend. He is doing his best to find a compromise, but I do not think that a compromise is legitimate in these circumstances.

[Sir Robert Buckland]

I listened with care to my hon. Friend. Although he and I are on other sides of the argument, we have always had, I think, a very strong mutual regard for each other’s position and the way in which we put our arguments. I am afraid that I do not agree. It is absolutely right to pray in aid the democratic decisions that have been made by the British people and this House, but we are also here, I think, as guardians of this place. It is important to note that, when we created retained EU law, which he and I were heavily involved with, we said at the time, either explicitly or implicitly, that we would, in good order, look carefully at the body of retained EU law, and that we would get rid of what we do not need—I am absolutely up for that, as it would be good, tidy law-making and doing service to the statute book—but at the same time we would retain what we regard as important safeguards or regulations that underpin particular activities. That is good for the rule of law and good for certainty, and we should remember that. I do not think that the bulldozer approach is the right one; the scalpel surely should be applied to these regulations, so that we get it right.

Therefore, in closing, I ask my hon. and learned Friend the Solicitor General to consider carefully whether, through further amendment and change, we can strike the right balance between the need to fulfil the objectives of this important Bill and to make sure that this place is not lost in the rush to revoke or amend regulations. There may be a time, even with sunsetting, that we will no longer be the party of government and we need to remember that we should be here to defend the position of this House irrespective of who might sit on the Treasury Bench. On that note, I urge my hon. and learned Friend to think again about amendment 42D, but, otherwise, I am in full support of his remarks.

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[Stella Creasy]

In fairness to the hon. Member for Stone, I recognise that he was here on Monday and is here today. On the powers of this Bill, he is like the Earl of Lucan—leading his cavalry into the charge of the Light Brigade—because he has already seen the arrogance of Ministers in responding to his concerns. I will never understand why he is giving away the power that he has as a Back-Bench MP to challenge for things—things that I might disagree with, but that, in a democracy, I would stand up for his right to argue for—but he is doing that today and he has done so consistently because he thinks this Bill is Brexit. It is not.

This Bill is a complete break-up of our parliamentary system, because it gives Ministers powers over 4,000 areas of legislation, using statutory instrument Committees with hand-picked groups of MPs to wave through any changes that Ministers want to make. And what has the hon. Gentleman got out of the process? He has got a list of the things that are not going to be deleted that he would like to see deleted. What a glorious victory that is. Little wonder the Earl of Cardigan would be looking at him—

[Sir William Cash]

Will the hon. Lady give way?

[Stella Creasy]

With the greatest respect, I have listened at length to the hon. Gentleman and I am conscious of time. I simply recognise the parallel with the charge of the Light Brigade in that, at first, the cavalry was lauded, and only later did we see the damage and destruction and only then did the British people hold them accountable. It will be the same when he argues against the very principle of ping-pong, which is about scrutiny.

The hon. Gentleman matches the arrogance of the Minister, who first of all challenged the proposals put forward by the Lords on the basis that they were a novel process—they were not; they were based and rooted in parliamentary expertise from a former parliamentary Clerk, who had plenty of experience of the different mechanisms of scrutiny that can be brought to bear—and now complains that the Lords, having listened to the debate in this place and tried to find a compromise, have come forward with another proposal. That is not good enough for him either.

Yet, all along, the Minister wants to claim that the Government have listened, while the Government have failed to table a single alternative proposal or to make a single suggestion to reassure those of us concerned that, if we give up 4,000 areas of legislation to Ministers to use SI Committees, we may as well all go home, because we will be bystanders to the parliamentary process. It is sheer arrogance to suggest that scrutiny is additional friction; it is called asking questions. Even Back-Bench Conservative MPs would think that that is a good idea, because it is a mistake to think any Government get it right all the time. That is why we have scrutiny and a process of trying and testing legislation.

“Computer says no” speaks to the real truth behind Brexit and behind this legislation, which is that the Government never intended to listen to the British people at all, because they never intended to give powers to the people who represent them. That is why it is an insult to democracy to see all this. Constituents across the country will be deeply concerned about a Bill that will allow the Government to revoke or water down legislation without any scrutiny at all, beyond possibly waving it through a five-minute Committee sitting.

People are concerned about environmental standards, which Lord Krebs is trying so hard to protect, and which the Government say they will protect—yet they will not write that down. That should be very telling, because we shall see that that becomes a developers’ charter. We shall see, for example, people trying to develop Holton Heath, which I am sure the Minister is well aware of, a site of protected heathland in his own constituency. Development was refused for that site on the basis of the special protection areas and special areas of conservation—both regulations that will be abolished under the Bill, unless the Government write them back in.

That development attempt was rebuffed, but the Minister’s constituents can have no confidence that development will not be proposed on that site again if we lose those pieces of legislation. The fact that Ministers will not write in the Bill that that absolutely will not happen, and the fact that we have not had that clarity over those pieces of legislation, should give his constituents pause. It would certainly give my constituents concerns about somebody seeking to develop the Walthamstow wetlands, for example.

The proposals before us today reflect the Lords listening and trying to find a way forward. They are talking about a non-binding form of legislative scrutiny, whereby the Commons could suggest amendments to a statutory instrument. The Government could even refuse to accept those amendments, but it would be a process of scrutiny and accountability—the mildest form we have seen—and yet, still, computer says no.

The Minister might think it is acceptable to be this arrogant about the concept of parliamentary sovereignty. Conservative Members might shake their heads and say, “The good chaps and chapesses of this Government could not possibly do anything wrong. Of course they will be sensitive to the electorate.” I am not sure the electorate think that that is the case. If the only opportunity for challenge and scrutiny is at a referendum or election, our capacity to make good laws—the whole point of this place—is gone.

I am sure, based on what he just said, that the hon. Member for Stone will now be leading the campaign for the abolition of the House of Lords—or at least for an elected House of Lords. Certainly I presume he will not take up a seat in the other place when he leaves the Commons. But that is the point, is it not? Our time here might be fleeting but, if we start unpicking the strands of parliamentary scrutiny, the processes that exist and our capacity to speak up for our constituents when their rights are affected, the damage will be everlasting.

The Minister might dismiss people such as me, still looking for those elusive benefits of Brexit seven years on, but he cannot dismiss the concerns of thousands of constituents. I hope he will finally engage in a serious process with the Members of the House of Lords and stop dismissing them, because they come with the very best of intentions. If we are absent at work and not doing our job of defending democracy, somebody else must do so. I hope that this House will support Lords amendments 15D and 42D, because our environment and our parliamentary democracy deserve better.

Retained EU Law (Revocation and Reform) Bill

William Cash Excerpts

Consideration of Lords message
Monday 12th June 2023 Commons Chamber

[The Solicitor General]

I am sorry that the hon. Gentleman was not in the Chamber for the exchange when my hon. Friend the Member for Harrogate and Knaresborough gently pointed out that Labour Members had not taken up their places on the EUSI Committee. As Chairman of the Committee, he rightly encouraged Labour Members to take up their places on that Committee and I would add to that encouragement.

[Sir William Cash (Stone) (Con)]

Will the Minister give way?

[The Solicitor General]

I will give way but I am conscious that a number people want to speak, so I will then make some progress.

[Mr Speaker]

indicated assent.

[Sir William Cash]

With the greatest respect, I just want to say through the Minister to the hon. Member for Chesterfield (Mr Perkins) that, although the European Parliament does its job, the laws are actually made by the Council of Ministers behind closed doors, by qualified majority vote and without even a transcript in Hansard. That is not a basis on which one could make any assumption that we would ever agree to them. It was always done by consensus.

[The Solicitor General]

Mr Speaker, you were absolutely right to encourage me to take that intervention, and I am grateful to my hon. Friend the Member for Stone (Sir William Cash). I pay tribute to him for all his work in this House. His announcement over the weekend came as a great sadness, shock and surprise. I know that he has a lot of work to do between now and the next election, and I look forward to these debates in the future. Thank you for encouraging me to take his intervention, Mr Speaker.

Lords amendment 42B is both unnecessary and potentially detrimental to this country’s environmental standards. We have made a commitment at every stage of this Bill that we will not lower environmental protections, and that we will ensure the continued implementation of our international obligations. Indeed, I am reminded of the rare moment of agreement between my hon. Friend the Member for North Dorset (Simon Hoare) and the right hon. Member for East Antrim (Sammy Wilson) during our last outing. They found common accord, and they are both right that there is simply no reason or incentive for the Government not to uphold our high environmental standards, of which we are rightly proud. It is simply not necessary for this commitment to be on the face of the Bill, especially not in a way that would make it more difficult to achieve any meaningful reforms that benefit the UK.

I will not try your patience, Mr Speaker, by listing all the Government’s post-Brexit achievements, but some of the steps we are taking go above and beyond EU law. [Hon. Members: “What are they?”] The Opposition are encouraging me to do so, and who am I to say no?

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[Justin Madders]

I remember that exchange very well, not least because it was on my 50th birthday. It certainly shows the importance of having proper scrutiny and transparency about ministerial decisions, which has been one of our main critiques of this bill throughout. I remind hon. Members that it was said in 2016 that we needed to reassert parliamentary sovereignty and that that was what taking back control was all about. However, I said in Committee, “we” does not mean

“Ministers sitting in rooms on their own, answerable to nobody, and under no requirement to explain their actions”.––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 22 November 2022; c. 126.]

“We” means this place.

I know that the oft-repeated and erroneous argument, which we have heard again today, that those laws were passed without proper democratic involvement in the first place has been offered as a reason why we should not follow such a process now. To make a pithy comment on that, two wrongs do not make a right. I would have expected those who were shouting the loudest about our sovereignty back in 2016 to be with us today.

The lack of transparency and desire to bypass scrutiny that are the hallmark of this Bill demonstrate a lack of confidence from the Government in their own programme. It is clear that either they do not know, or they do not want to tell us what they intend to do with the powers conferred by the Bill. Even the addition of a schedule listing regulations to be revoked does not really offer any clues about how the Government plan to approach the bulk of retained EU law.

In her recent appearance before the European Scrutiny Committee, the Secretary of State for Business and Trade referred to that list as merely containing regulations

“that are redundant, rather than things that are holding us back”,

meaning that we still do not know what the substantive changes will be. Maybe one day we will find out what exactly it is that has been holding us back.

If the Government cannot tell us what they intend to do with the powers they hand themselves under this Bill, and they clearly do not want the light of scrutiny shone on their intentions, it is even more important that this amendment is passed. It also suggests that this Government are not confident about what the public or indeed Parliament will have to say when their intentions become clear. That is why as many safeguards and as much transparency as possible should be injected into this Bill.

In closing, I refer again to the evidence given by the Secretary of State to the European Scrutiny Committee, because if anything sums up the shambolic approach to this Bill by the Government it is her comment:

“The retained EU law Bill became a process of retaining EU law. That is not what we wanted.”

I do not know whether to laugh or cry at such comments. What I can say for sure is that, if anything sums up just what a tired, out-of-touch and broken Government we have, that is it.

[Sir William Cash]

I have a strange sense of déjà vu about the speech I have just heard from the hon. Member for Ellesmere Port and Neston (Justin Madders). I am afraid that he does not quite get it. I have made the same point with regard to the hon. Member for Chesterfield (Mr Perkins); the fact that I happen to rather like him, and always have done—I come from Sheffield—does not alter the fact that I fundamentally disagree with him.

The way the House of Lords has dealt with these amendments demonstrates that the Lords are determined to try, by hook or by crook, to obstruct the House of Commons, which is the democratic Chamber in these matters as far as the electorate is concerned, in pursuance not only of the referendum on leaving the European Union, but also of the Bill as a whole—which I do support, as it has moved forward. I had some reservations in the past, but we have made a lot of progress.

I congratulate the Minister very much on his calm common sense and the way he has approached the subject. I also agree with the tweet he referred to. Parliamentary counsel are rather like holy priests, if I may say so, and they have their own particular way of wanting to deal with something. I would not want in any way to criticise the way they have gone about this, because it comes to exactly the same thing that I proposed when the Government adopted my own amendment.

Coming to the question of parliamentary scrutiny, the new clause introduced by Lords amendment 42B places a prohibition on the making of regulations under section 15, unless

“a document containing a proposal for those regulations has been laid before each House of Parliament”.

It goes on to say that the document is to be

“referred to, and considered by, a Committee of the House of Commons”.

That sounds suspiciously as if it might fall within the remit of the European Scrutiny Committee. If it does not, that creates a problem with our Standing Orders for a start. It is not defined, so what on earth that Committee will do, and how it relates to the functions of the European Scrutiny Committee and/or to any other Committee of the House of Commons, is so completely vague and impossible to understand. That, in itself, condemns that new clause.

The amendment goes on to say:

“a period of at least 30 days has elapsed after that referral”.

When it turns to the next question, it says:

“If the Committee—

the Committee of the House of Commons—

determines that special attention should be drawn to the regulations in question, a Minister of the Crown must arrange for the instrument to be debated on the floor of each House”.

They “must”; there is no option on that.

Suddenly, we move into a completely new dimension for each House. If the Committee—my own Committee, were it to be the Committee in question—makes a decision about special attention, that is then thrown to the mercy of each House of Parliament. We know from everything that we have heard over the last few weeks on the Bill that there is an intransigence—a stubbornness, if I may say so politely—from our noble Friends in the House of Lords in the face of any attempt to get rid of retained EU law in the way in which we are proposing, through revoking or reforming it.

By taking that particular course in the clause, all the Lords are doing is saying, “We want to take back control. We want to put this whole procedure into a cul-de-sac that will be effectively controlled.” I would go so far as to say that, by the sounds of it, the House of Lords will try, to use that hallowed expression, to “take back control.” They will try to take back control of this to the House of Lords. That is what this is all about, and we are not so stupid that we will fall for this one, let me assure the House.

Let me come to the question of regulations and statutory instruments, and the way in which they areb made. I have spent a lot of time on that, as I have said before. I am most grateful to you and others, Mr Speaker, for referring to the fact that I will retire from the House of Commons at the next election, but I have a lot of work to do between now and then. This debate is part of that, by seeing the Bill brought to a conclusion through its elimination of the supremacy of EU law and the opportunity to diverge and create economic growth and competitiveness. All these matters are part of that.

I find it really astonishing that the Lords do not seem to understand—it is as if they are trying to take us for fools, which I can assure the House we are not. I have sat on the European Scrutiny Committee since way back in 1985. Day in, day out, every single week, regulations and statutory instruments were brought in to implement decisions made behind closed doors in the Council of Ministers, as I said to the hon. Member for Chesterfield. Those decisions were made by majority vote of the other countries—there used to be fewer but then the number went up to 27—and without even a transcript. I challenge any Labour or SNP Member to get up and say that they think that is a very good idea, and that they would love to tell their constituents that they should be governed in that way, with all their laws for made for 50 years by that method of completely closet operation and without a transcript. It is unbelievable.

What are we doing here other than having a debate in this Chamber? I challenge Opposition Members to go out and say to their constituents: “We want to have you governed in that manner, behind closed doors and without a transcript.”

[Justin Madders]

indicated dissent.

[Sir William Cash]

It is no good the shadow Minister shaking his head, because he will not ask that question and nor will the hon. Member for Chesterfield, because their constituents would very quickly turn around and tell them to get lost.

[Justin Madders]

I just point out to the hon. Gentleman that my constituents would wonder why we are rehashing the arguments from 2016 when we have this Bill before us today.

[Sir William Cash]

I am so delighted that the hon. Gentleman asks that question. It is very simple: we had a general election that gave us a massive majority on the basis of getting Brexit done—and this gets Brexit done. We are doing exactly what so many of his constituents voted for, even though, I am sure, he got a reasonable majority. There are people who are now not in this House and were driven out because they did not respect the views of the people in that referendum. That is a very simple and straightforward answer to his point.

[Hywel Williams (Arfon) (PC)]

The hon. Gentleman is referring to processes in the past in Brussels, but the Lords amendment suggests that a Committee should examine such matters. I believe that in this place Committees meet in public.

[Sir William Cash]

With respect to the question of how the laws are made in the first place, that is what I am saying. The reason the Bill is so important is the need to overtake and, effectively, deal with the mistakes made in the past, over that 40 or 50-year period, whereby the laws were made in the way that I have described—and they were. They were done by consensus, because everybody knew before they walked into the room that the majority vote would work against them. I have spent a lot of time scrutinising such things—I was going to say a lifetime, and I almost have—and all that I can say is that nobody would seriously doubt that that is how the system operated at that time.

We are talking about these laws because we want to revoke or modify them. We are not going to get rid of all of them—we will modify some and revoke others, and that will be by a simple test. That test will not be whether or not it was decided by 27 other countries to which we were subjugated by law—[Interruption.] We did that in the European Communities Act 1972, which was a great mistake. We have moved to a situation as the result of a general election in this country, the result of which is that we are allowed to make our own laws here in this House on behalf of our constituents. I think that is a very reasonable position. It is not only reasonable but absolutely essential, because it is about democracy and sovereignty and self-government. That is what the people decided in the referendum.

[Stella Creasy]

rose—

[Sir William Cash]

I always give way to the hon. Lady.

[Stella Creasy]

And I thank the hon. Gentleman for it. I note his comments, although I also note that the legislation already provides for a Committee to look at the statutory instruments generated by the Bill. That is not a novel procedure. He says that it will be this House that determines matters, but it will only be this House reflecting what Ministers bring to us in a Delegated Legislation Committee, will it not? Unless Lords amendment 42B is passed, MPs will not be able to influence the content of an SI. The hon. Gentleman says that he did not like that in the European Parliament, so why does he want to take back control to Downing Street rather than to this Chamber with a process whereby, when changes are substantial, MPs have influence over them?

[Sir William Cash]

First, I did not say the European Parliament; I actually said the European Council of Ministers. There is a big difference and I am sure that she understands that, because that is where the law making is done. Secondly, with great respect, it is a bit disingenuous to suggest that this will all be decided by the Committee. I think it would be my Committee that would do this, but if we leave that aside the real point is that the amendment goes on to say that even if that Committee

“determines that special attention should be drawn to the regulations in question, a Minister of the Crown must arrange for the instrument to be debated on the floor of each House and voted on”.

That is the point. In other words, the lock is created by the House of Lords—

[Stella Creasy]

No, it is not.

[Sir William Cash]

Of course it is. If I may say so to the hon. Lady, with the greatest of respect, that is the intention that lies behind it. I know that she is quite obsessive about this point, but, with the greatest respect, she does not seem to quite understand how it is— [Interruption.] I am trying to be factual about this. The fact is that when the original regulations were made, they were made as statutory instruments implementing the laws made in the way I have just described, behind closed doors and so on.

Those regulations came in that way and it is perfectly legitimate, in the light of the fact that those laws were not made in the manner in which we would traditionally expect them to be made and, constitutionally, should be required to have them made, which is by this House, these Members of Parliament—including current Opposition Members of Parliament if they are in government—and for those decisions to be taken democratically on behalf of our electorate, who happened to say that they wanted to leave the European Union and endorsed it with a general election in 2019. The position is perfectly clear: what we are doing in this Bill is not only completely legitimate, but constitutionally correct. That is a big difference. Robin Cook once said to me, “Legitimacy is one thing, Bill; constitutionally, it is quite another matter.” That is not a constitutional way of doing things. What came into this Parliament and affected the voters of this country for 40 or 50 years was done in a manner that was completely, totally and utterly objectionable in democratic terms, because those laws were not made by our voters and our Members of Parliament representing those electors in this House.

I will simply say that I am not going to buy into this at all. I think I have probably made myself pretty clear but, having said that, I recognise the way in which the Minister has handled the Bill. I am extremely impressed and grateful to him for not only his comments, but the fact that he has handled the Bill so well.

--- Later in debate ---

[Sir Robert Buckland]

I entirely agree with my right hon. and learned Friend. At the risk of invoking the ire of my hon. Friend the Member for Stone (Sir William Cash), the new Companion of Honour, it is right to say that, although consensus was indeed the means by which regulations were agreed by the Council of Ministers, it usually involved the UK and its assent to that consensus. I know that is not quite the narrative that he agrees with, but we risk fighting the old battles that he and I were on either side of.

[Sir William Cash]

Not today!

[Sir Robert Buckland]

No, we are not going to do that today, but I will end on this basis: my hon. Friend knows I am right.

In my next breath, I want to violently agree with my hon. Friend about his work on the dashboard and the amendment that we now have to make a particular tweak to Lords amendment 16. I entirely support the new clause under Lords amendment 16. The dashboard has been a source of much concern in recent months, which was then reflected by the Secretary of State’s wise decision to change course. That dashboard has to be authoritative, so I am glad to see it in law, but it now needs to work. We need to make sure that it is populated, that the National Archives is very much part of it, that we are not given any more surprises and—my hon. and learned Friend the Minister will get this—that we do not end up with repeal by accident, which is bad for the rule of law, bad for certainty and bad for investment. We all agree on that.

To deal in short order with Lords amendment 15, with the best will in the world, on one level, it seems to be a sincere attempt to reflect the legitimate aspirations of the British people about food and environmental standards. Frankly, they are the aspirations of the British Government, too. It is not right to say that at any time, any Minister on the Treasury Bench under this Government has said that they want to use the Bill as an attempt to railroad the undermining of strict environmental protection and food standards. One therefore has to ask: what is the purpose of this particular amendment? Some of its purpose I am afraid is nakedly political. It seeks to make a political point that imputes to this Government a motive that they just do not have. In addition, it is beset by problems. The particular way in which it is structured, and the requirements for consultation in particular, seem to me to be a litigator’s paradise.

--- Later in debate ---

[Stella Creasy]

Of course I withdraw that; I meant to say “open”. I want the hon. Member for Stone to be open, but he has not even bothered to have the courtesy to read Lords amendment 42B. If he had, his objection to the idea of a Statutory Instrument Committee looking at these amendments—[Interruption.] Well, I am sure he has made complaints to the Government, who have already written to the other European statutory instruments scrutiny Committee to say they will be doing exactly that. He opposes the idea of a report about what impact a statutory instrument might have. In any other language that is called an impact assessment; we get them on all sorts of pieces of legislation, but not on this.

[Sir William Cash]

Will the hon. Lady give way?

[Stella Creasy]

I have listened to the hon. Gentleman. I listened to him tell us at length about the European Union, but he has failed to tell us why he is opposing an amendment that gives this Chamber primacy over what happens when legislation changes. As the right hon. and learned Member for South Swindon says, it matters.

The hon. Member for Stone opposes the Lords being able to come back with SI amendments. Actually, this House would be able to override them under Lords amendment 42B. If he had bothered to have the courtesy to look at what the Lords had said, and bothered to listen to a former parliamentary Clerk of the House who helped draft it—not a great remainer by any means, but somebody who cares passionately about parliamentary democracy—he would recognise that this is about trying to make the process better. He would recognise that our constituents deserve better than a simple email saying, “We have no idea what’s being deleted and we could not stop it anyway,” because that is the point about SI Committees.

I am done with being lectured that this is somehow about Brexit and that those of us who have concerns about parliamentary democracy in 2023 should look at the 1972 Act, because I can see what could happen in 2024 and 2025, and my constituents deserve better than this. We cannot have a legislative process that simply says we have to trust the chaps and chapesses who are Ministers and in Downing Street to do the decent thing. If the hon. Gentleman had sat in his own Committee and listened to Ministers dismiss his own concerns, he would know the folly of such a position.

Conservative Members will vote down these amendments yet again, and they will go back to their constituents and tell them not to worry, but the truth is that they should be worried because we do not know what rights will be affected. As far as I can see, given that Ministers committed to abolishing them, the only reason why the Bauer and Hampshire judgments are now being kept is because they have been caught red-handed using a Bill to override something they know our constituents would want us as MPs to speak up about. We must never let anybody on the Conservative Benches or who said they were speaking up for democracy through Brexit tell us ever again that Brexit was about taking back control. It is taking back control to Downing Street, not this place, and our constituents deserve to know that truth.

Retained EU Law (Revocation and Reform) Bill

William Cash Excerpts

Consideration of Lords amendments
Wednesday 24th May 2023 Commons Chamber

[Stella Creasy (Walthamstow) (Lab/Co-op)]

rose—

[Sir William Cash (Stone) (Con)]

rose—

[The Solicitor General]

I will give way to the hon. Lady first and then of course I will give way to my hon. Friend.

--- Later in debate ---

[The Solicitor General]

I disagree entirely with the hon. Lady. I know that she is an assiduous Member of this House; I have served on many Bill Committees with her and know how seriously she takes her work and this role. I know that she would not be unwilling, and indeed neither would I, to sit upstairs on SI Committees, but that should be only if it is necessary. If it is not necessary, and if all we are doing is, in effect, retaining the status quo, it is much better to free up parliamentary time, and the time of Ministers and officials, to look at where real reform can be made.

[Sir William Cash]

I simply ask the Solicitor General whether he would be good enough to give an assurance to the European Scrutiny Committee, in the light of recent events, on its interaction with the Bill and its outcome and operation.

[The Solicitor General]

My hon. Friend pre-empts me, because I will be turning to the important role of the European Scrutiny Committee. I know he will forgive me, because it is important to take this in the proper order and so I will come to that point in due course.

--- Later in debate ---

[The Solicitor General]

I sort of agree—although that is a little bit of a facetious way to put it from the hon. Gentleman, but there it is. To deliver clarity, to remove the principle of supremacy in international law, the House must remove this amendment and restore the original clause to the Bill.

[Sir William Cash]

On the question of legal certainty, does my hon. and learned Friend not agree that it would be almost impossible to imagine how uncertain it would be if we had two sets of statute books, one of which was post Brexit and the other of which was the retained law as passed by the European Union over all those years? The method of interpretation—the difference between the purposive method and our own method—is absolutely crucial to this, does he not agree?

[The Solicitor General]

I do agree with my hon. Friend, who is absolutely right. That is the whole purpose of this Bill and the reason we are ending the supremacy of retained EU law.

I turn now to Lords amendment 15, which sets out a number of conditions relating to environmental protections and food standards that the Minister must meet when intending to use the powers of this Bill. That is unnecessary. Ministers have made it clear repeatedly at every stage of this Bill’s passage in both Houses that we will not lower environmental protections or standards.

Equally, the delegated powers in the Bill are not intended to undermine the UK’s already high standards on food, nor will they do so; indeed, this Government are committed to promoting robust food standards nationally and internationally. Rather, we can use these powers to simplify and improve regulation, making it simpler and administratively easier to comply with, without lowering standards. Those reforms, among others, are vital to allowing the UK to drive genuine reform and to seize the opportunities of Brexit.

--- Later in debate ---

[Jonathan Reynolds]

I welcome my hon. Friend’s intervention. I will take her word for it on the Civil Contingencies Act, about which I fear she may have a level of expertise that exceeds mine. To be frank, I thought that the Minister’s whole defence of that area was somewhat questionable. Much of what we are talking about is a relatively novel set of procedures that relate to the unique situation that we find ourselves in. Indeed, the Government’s whole approach is based on the uniqueness of the need to have a position on retained EU law following the mechanisms that we chose to adopt as a country when we left the European Union. I thought that that was a somewhat weak defence. If my hon. Friend has information contrary to what the Minister said on the record, I am sure that he will seek to amend that and put forward the correct form of affairs—perhaps if he receives wisdom on the Front Bench at some point in the next four hours.

Our colleagues in the House of Lords have, through all their amendments, sought fundamentally and in good faith to make sense of what was an embarrassing set of proposals whose only aim appeared to be to pacify the hardliners on the Government Back Benches. I appreciate that those Members do not look happy today.

[Sir William Cash]

rose—

[Jonathan Reynolds]

I imagine that that is because they feel that they are being led by the grand old Duke of York. He was happy to march them up to the top of the hill, promising in his leadership video a bonfire of all retained EU law, but of course, he has had to march them all back down again. Now, they are neither up nor down. On that point, I will give way to the hon. Member for Stone (Sir William Cash).

[Sir William Cash]

It is a disappointment according to the hon. Gentleman, but I have to say that I am extremely glad that the supremacy of EU law is going, I am extremely glad that the deregulation is remaining, and I am also very glad that my amendment has been selected for discussion so that we can have a proper list and do the job properly.

[Jonathan Reynolds]

I am delighted that the hon. Gentleman is happy. Maybe that means one fewer letter towards the 54 that the Prime Minister needs to think about for the duration of the day.

This Bill was always a farce designed to appease the constant, constant, constant Conservative melodrama. It has neither set forward a positive vision of a post-Brexit Britain, nor appeased most of the Government’s Back Benchers, with the exception of the hon. Member for Stone. This country is desperately in need of a Government who can provide clarity, consistency and stability for businesses to invest and pull us out of the low-growth, high-tax quagmire of the last 13 years. Equally, the UK’s workers deserve to see fulfilled the promise that the UK’s post-Brexit employment framework would mean no reduction in rights and protections.

The legislation revealed a Government with fundamentally the wrong approach—they could not even correctly diagnose the problem, let alone provide solutions. It would have been better for them simply to abandon the Bill altogether. However, by inserting the Government’s amendment, and then supporting the excellent work of their lordships in the other place, we can get it to a substantially better place than the chaos that was proposed before. On behalf of Britain’s businesses and workers, I urge all colleagues to do so.

[Sir William Cash]

I will speak to my very short amendment to the very short new clause in Lords amendment 16, on the retained EU law dashboard and report. The new clause requires the Government to report on their plan to revoke and reform, while my amendment seeks for that report to include a list of EU provisions to be revoked or reformed. In other words, it adds to the benefits of the new clause and to the Government’s proposals. The new clause was adopted as a Government amendment in the House of Lords a couple of days ago.

I am very grateful to colleagues who signed my amendment, and I know that many more want to do so. I am also glad that the Secretary of State has agreed—no doubt having received some good advice from my hon. and learned Friend the Solicitor General and others, unnamed—to put her name to the amendment. That means, I am glad to say, that it is now Government amendment (a). Procedurally, that is a very great prize, because if the amendment had not received Government support it would almost certainly not have been selected for debate and we would not have been able to vote on it. I mention that as a matter of significance. I am deeply grateful to my hon. and learned Friend for attending meetings with me and for the dedicated way in which he goes about his job.

We need to make sure that this new structure actually works so that we can put the painful recent past behind us and get on with the job in hand of getting rid of EU supremacy and insisting on the freedom to deregulate. We also need to get to the bottom of which laws should be reformed or revoked. That process is in hand, but it is moving far too slowly and not being done with the degree of experience and skill that needs to be applied to it.

I am also very glad to report that, after a few refusals—but I do not want to dwell on that—the Secretary of State will appear before the European Scrutiny Committee in the week beginning 5 June. That is a very important step forward.

[John Redwood]

I am grateful to my hon. Friend for all the work he does, and I am glad that the Secretary of State will at last appear before Parliament on this crucial change of policy. Has he had any assurances that the many ideas that I and others have put to the Government on repeal and improvement of EU law will be not only read but implemented? What is the delay?

[Sir William Cash]

I agree very much with and share the sentiment expressed by my right hon. Friend. We need to move forward and have a proper list and the opportunity to examine the manner in which that list is prepared. The important matters to which he specifically refers include economic freedoms and the ability to reduce taxation where necessary. If they are not on that new list, there will be a lot of people asking for them to be included. That is the next step. It has unfortunately taken a long time to get to this point, but I think that we are now beginning to get there.

The new clause prescribes arrangements for Parliament to be properly informed as to the need for a full and hopefully, at last, accurate and relevant list of retained EU law along the lines of economic freedom and competitiveness and many other things. I and many colleagues, including those on the European Scrutiny Committee, have been severely pressing, for a long time, for a full and accurate list. We have invited the Secretary of State to come before our Committee many times without success, but she is now coming, and we are glad of it. We asked for progress in relation to all EU retained law. We did not get it, but we are now going to.

I also proposed to the Secretary of State that there needs to be an experienced tsar, or commander in chief, of the operations, because by the sound of it there has been something of a problem inside the civil service and it has led to difficulty in getting the job done. This person would need to know and understand the process of European scrutiny, what to do and how to go about it. I have written to other Ministers as well, and explained to them that there are archives in Kew that will be part of the list, not to mention individual Government departmental archives, parliamentary counsel office archives and, of course, our own very special European Scrutiny Committee archives, which date back to 1973 and are extremely comprehensive, including the explanatory notes that were produced to my Committee as individual regulations and laws were being negotiated. They also explained the Government’s position on particular points, but I will come on to that in a moment.

When I hear people suggest that they have not had the time to do all this and get the job done properly, I despair at their lack of drive, energy, commitment and, perhaps, unawareness of the Conservative manifesto. The new clause will provide an obligatory framework for the completion of the task.

It was profoundly disturbing to look at the schedule attached to the new Bill. It restructures the Bill in radical ways, but this debate is not the time to go into the history of all that. We have had a lot of discussion about it, so I am not going to do so. This Bill, as it has come from the House of Lords, is a mixture of the good, the bad and the ugly. The good is the ending of the supremacy of EU law and methods of interpretation, and also the provisions relating to deregulation. The ugly lies in the reformed structure and the manner in which we only heard about that at very short notice on 10 May. But, as I have said, we now have to move on. The bad lies in the amendments by the House of Lords, which if passed would have profound consequences undermining our national interest. We also need a coherent statute book. We cannot have two statute books, with one dealing with laws passed during our time in the European Union, pre Brexit, and the other dealing with laws passed afterwards. That would be most peculiar, and it would not work. It would be incoherent and create great legal uncertainty.

The new clause that the Government have adopted requires the Secretary of State to update, within specified periods, the EU law dashboard and publish a report on the revocation and reform of retained EU law. This report must provide a summary of the dashboard, set out progress already made in revoking and reforming, and set out the Government’s plans to revoke and reform those laws. In effect, it sets obligations and a timetable.

It is always interesting to know what people’s “plans” are, but having a plan does not mean that we know what is in it before we see it, and nor does it mean that it will ever happen. What does matter is that it is listed, and that is the point of my amendment. The list can be examined to see what modifications or revocations are required under clause 14. Only then can we decide their relevance in the national interest. It also makes the Secretary of State properly accountable to do the job properly within the framework of our parliamentary and scrutiny procedures, including my Committee; I am grateful to my hon. and learned Friend the Solicitor General for the assurance he has given on the Floor of the House to work with my Committee. It also creates a deadline and pressure to get on with the job.

I have written separately to the Government not only about the tsar but about the efficient delivery by external sources, in a comprehensive manner, by May next year. That is doable, but it requires political will, and diligence on the part of the civil service. That is why my amendment states that the plan must specifically include in a list those provisions of retained EU law that the Government intend to revoke or reform. On the face of it, this is a simple amendment, but it carries with it the need to do the job properly. I assure the House that the European Scrutiny Committee will examine the content of that list and its implications with an eagle eye. It is an enormous shame—in fact, I would almost call it a disgrace—that the current schedule to the Bill consists of what could politely be described as junk, with very few exceptions. I have been through the list; actually, I did so during the Eurovision song contest. I turned to my wife and said, “I really cannot tell which is worse: this schedule or the Eurovision song contest.”

--- Later in debate ---

[Bim Afolami]

I defer to my hon. Friend’s knowledge and judgment on what he is speaking about, but may I press him on this particular aspect of the Bill? Of course, a lot of regulations may seem redundant or trivial, and he has named a couple, but part of an improved regulatory system is cleaning up regulations that may be redundant or trivial, in addition to doing the work properly of making sure that when we do get rid of things and reform them, we do so for the right reasons for the entire regulatory system. The Secretary of State has proposed that by the end of this year, we are likely to have removed roughly 2,000 of the total 5,000 regulations; the remaining 3,000 will be done in a proper way, looking strategically at our whole regulatory system. Does my hon. Friend not accept that that is a reasonable approach for the Government to take, bearing in mind the position that we are in at this time?

[Sir William Cash]

I think it is perfectly reasonable to do it now, because it has not been done before: that is where the problem lies. I would also slightly correct my hon. Friend regarding the relevance of, for example, fishery arrangements between the EU and the Government of the Cook Islands—they are administered by New Zealand, I believe. Such arrangements have nothing at all to do with us, and could not conceivably be included in a list that was intended to demonstrate relevant revocation and reform of these laws.

Expunging EU laws from our statute book frees our voters, our businesses, our Parliament, our sovereignty and our democracy from their subjugation to the EU for 50 years. Those laws were made and engineered by the European Union, the European Commission and the Council of Ministers behind closed doors by qualified majority voting—without even a transcript, as I have said so many times—but usually came about by way of consensus. The veto was promised and guaranteed in the 1971 White Paper, which hon. Members can look up for themselves, but it was whittled away. When EU laws came to be discussed behind those doors, we generally ended up with consensus; they certainly were not our own laws passed by our own Parliament. That operation has been described by a famous economist as “regulatory collusion”.

The making of all those laws, as I said earlier, was accompanied by an explanatory memorandum, which is a useful reference point for determining what mattered at the time. Not one single piece of EU legislation was ever rejected or amended during the entire course of our membership. Interestingly, one of the five provisions that I have mentioned that are relevant to this debate is the port services directive, which was opposed by every single one of the port employers, by every single one of the trade unions, and by the Government. What could they do about it? Nothing. That is the point, and that almost summarises the reasons for the exercise that has been conducted under the Bill.

[John Redwood]

Does my hon. Friend recall that—certainly when I was single market Minister some years ago—quite often we did not want the regulation or law at all, but the Government then decided that it did not look good because we did not have a veto to enforce our wish, and we ended up trying to negotiate the version that was least damaging? Why is it that collective memory has forgotten all this, and why do people only recall the laws they want to keep? Why can they not recall the laws we never wanted?

[Sir William Cash]

Fortunately, the collective memory includes me, because I was first put on the European Scrutiny Committee in 1985. I have been on it ever since, and I have been Chair for 10 years. However, I totally agree with my right hon. Friend. The question of whether these laws mattered and whether they were going to go by consensus was driven by the fact that the people sitting around the table knew beforehand whether there was going to be a majority vote, and whether they would lose. As it was a dead certainty that the UK was going to lose, they entered into that consensus.

The real objective of the European Union in all this was to harmonise laws across Europe, creating a fundamental shift to European integration. That is one of the reasons why I tabled a sovereignty clause to the Single European Act 1986, which eventually found its way on to the statute book in 2020. Essentially, all these laws lack the kind of democratic legitimacy that we would expect in our traditional, constitutional, common-law system. We must therefore judge the laws that are now in the list, as set out in my amendment. Where they are capable of being modified, let them be modified, but as I have said, many of them were passed by majority vote and were certainly not in the UK’s national interest. Indeed, the chief negotiator for our entry to the EU under Edward Heath, Sir Con O’Neill, stated of his own failure to understand the system that

“I am sorry to say we probably also thought that it was not fundamentally important.”

Tragically, it was important, and the thousands of laws that now need to be reformed and revoked were the product of his and the then Government’s failure, and those who persisted in it until we left the European Union.

Sadly, for decades after our entry to the EU, the passing of laws in the European Council of Ministers continued to churn out thousands that did not have democratic legitimacy, and which we now have to modify or revoke. I am glad that the noble Lord, Lord Callanan, said on Monday that

“it is crucial that Parliament and the public are able to hold the Government’s feet to the fire and ensure that our momentum continues”.—[Official Report, House of Lords, 22 May 2023; Vol. 830, c. 609.]

It is also important that the Brexit Opportunities Unit has discussions with the European Scrutiny Committee about methods and co-ordination, including the tsar I have mentioned alongside a team of external experts. Resources will be needed, yes, but the need is absolutely vital. I am therefore glad that the Government and the Secretary of State have agreed to adopt the amendment that stands in my name and those of many colleagues. I believe that the clause, when amended by this and other amendments, will be one of the main levers for making a success of this entire operation.

[Alyn Smith (Stirling) (SNP)]

It is a mixed pleasure to speak in this debate for the Scottish National party, it is safe to say, but it is a pleasure to follow the hon. Member for Stone (Sir William Cash). Much as we disagree on some things, I did not realise we were both Eurovision fans; perhaps we can organise a viewing party next year, as I have an outfit he would look fabulous in. [Interruption.] It will not be a kilt, I assure the hon. Gentleman.

I will speak to amendments 6, 1, 15 and 42. I referred light-heartedly to the hon. Gentleman, and it is possible to have differences of opinion; indeed, I hope I have demonstrated that I respect differences of opinion, but this Bill goes to a matter of deep, fundamental difference of philosophy and worldview. I am very proud to be part of the most pro-European party in this Parliament. I am a committed European as much as I am a committed independence supporter for Scotland. I think Scotland’s best future is back into the European Union. We did not view the EU as a prison to leave; we did not view EU legislation as an imposition to be fought against. I was a member of the European Parliament for 16 years; I passed many of these laws and the description we heard about unelected bureaucrats and things done behind closed doors is not my honest and true experience of how it works. However, I respect different views, much as I think they may be coming from entirely different philosophical points.

We do not like this Bill; I have been open about that. We think it is unnecessary and does not deliver what was promised. We have heard much about the need for a dynamic regulatory regime for the UK, and I agree, but there is plenty of redundant domestic law on the statute book as well. I will come on to the matter of retained EU law, but the deletion of redundant law is something Parliament should be doing on a daily basis and it is not that much of an achievement—and it does damn all to make the competitive position of the UK any better in any significant way at all.

The following point was made eloquently by my hon. Friend the Member for Glasgow North (Patrick Grady), who has had to go to a Committee, I believe: by virtue of leaving the EU, retained EU law does not have a meaningfully special place in our statute book. It is open to this Parliament to amend, repeal, revoke or change, or whatever else it wants to do, any piece of domestic legislation wherever derived from. So this Bill seems to be answering a question that has not been asked.

[Sir William Cash]

I think I heard the hon. Gentleman say that that was possible. While we were in the European Union, it was impossible because of section 2 of the European Communities Act 1972, which the hon. Gentleman, as a very good lawyer, might look at. It makes it absolutely clear that we would accept all European law, however made, in the Council of Ministers, and also, for that matter, all European case law; it is there in section 3.

[Alyn Smith]

I will choose my words: the hon. Member is right in what he says, but he misses the point that we have left the EU and that did not apply from that point onwards. What he says was correct about two years ago, but what I am saying is correct now. It is open to this Parliament to revoke any piece of legislation wherever it came from. This Bill is borne of malice rather than being a constructive blueprint for the UK’s future.

--- Later in debate ---

[Sir Jeremy Wright]

I will focus on Lords amendment 1, Government amendment (a) to Lords amendment 1 and Lords amendment 42.

Before I do, I want to close the loop on Lords amendment 6. It is a pleasure to follow the hon. Member for Stirling (Alyn Smith), who made an interesting set of observations. As he would expect, I do not agree with all of them, but if I may say so, he is engaging in this debate in exactly the way we ought to when considering matters this complex and important.

Just to finish the thought, the hon. Gentleman is right to say that their lordships may want to consider the matter further, as of course may we. I suspect that the noble Lord Hope, who I think drafted the clause in Lords amendment 6—that gives me considerable hesitation in criticising it in any way, because it is unlikely he has got much wrong—is intending a deal of weight to be put on the phrase

“as the case may be”.

Subsections (2) and (3) refer to a

“responsible Minister of a relevant national authority”

and to

“both Houses of Parliament, the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly, as the case may be”.

I suspect Lord Hope would say that that indicates that in the case of retained law, the body would be the House of Commons and the House of Lords, and in the case of devolved competencies, it would be the relevant devolved body. Before we sign up fully to the wording of the amendment as it stands, we should have clarity about that, because it is an important point in the hon. Gentleman’s argument about the reinforcement of the devolution settlement.

We do not want to subtly change the devolution settlement by accident. I suspect that the hon. Gentleman would be quite happy to change the devolution settlement either by accident or by design, and perhaps not so subtly, but in the context of the Bill, we had better be clear what we are talking about. For that reason, I certainly will not support Lords amendment 6 at this stage, though I will listen carefully to what their lordships have to say when they clarify the point.

There seem to be similar points to make in relation to Lords amendment 1, Government amendment (a) to Lords amendment 1 and Lords amendment 42. Were we to support amendment (a), it would restate, because the Government have already made their position clear, their new approach that rather than repeal a whole swathe of EU-origin retained law in effect by default, it would be better to list specifically those things that it is intended should be repealed by a certain point, such as the end of this year, unless further action is taken before that point. That is a much more sensible approach, although I will say it was somewhat inevitable, as others have said.

It was always inconceivable that the Government would be able to manage the process of considering properly all the retained EU law in scope of the Bill before the deadline of the end of this year. Therefore, the Government have done the eminently sensible thing and should be congratulated on doing so. I will certainly support Government amendment (a) to Lords amendment 1, because it regularises the position in a much more reasonable way.

The irony is that I rather suspect proceeding in the way originally intended would have led to the retention of far more retained EU law than will be the case under the Government’s revised approach. In fear of losing something vital, it is highly likely that the Government would have had to roll over—by default and before the deadline—a good portion of legislation, just to be sure they had not missed something. This approach is much more sensible and will rather better support the intentions of those who supported our departure from the European Union than the approach originally intended.

If the rest of Lords amendment 1 were passed by this House—not just the part that amendment (a) retains—we would introduce exactly the friction that I mentioned earlier when intervening on the hon. Member for Stirling. It would introduce a Joint Committee process and then debates and votes on the Floor of both Houses. I appreciate that, depending on which side of the argument someone is, they may regard those as additional safeguards or additional procedural friction, but it appears to me that it is more the latter than the former. That process is far more than is likely to have been done in the consideration of any of these laws when they were originally brought into British law. When that happened—my hon. Friend the Member for Stone (Sir William Cash) is the world expert on this—we would have seen that, despite their EU origin, the level of scrutiny and attention those laws got from Parliament was far lower than the level proposed in the amendment.

[Sir William Cash]

To respond briefly to my right hon. and learned Friend on this issue, I am afraid that the idea of a Joint Committee is just not a workable proposition. This is not the kind of forum to deal with the issues at stake and, if I may say so, for that reason alone it is impossible to accept Lords amendment 1. It just would not work.

[Sir Jeremy Wright]

Well, I entirely agree with my hon. Friend. I think this is probably not the appropriate mechanism, as he says, but it would also duplicate to a large extent what his Committee already does. So I do not think it is an attractive mechanism, as he says.

Of course, those who propose this amendment and those who speak for it today may say to me, “Look, it would only be in the case of substantial changes that some, at least, of these additional procedures would apply”, but it seems to me there are two points to make about that. First, it would be the Joint Committee’s assessment of what is a substantial change to the law, not anybody else’s. Secondly, we would, would we not, have to get into what the word “substantial” means in that context. If we were to say that a Joint Committee should be established to determine initially whether there is a substantial change of the law in prospect, it would have to determine that and it would have to decide what substantial means. Does it mean, for example, that a large number of laws are consequentially affected when a change is made, or does it mean that a few laws would be affected but in a very significant way? I think it is important, if we want to do this, that we are very clear about the definitions that we apply, because just as other Members of this place are worried about the level of authority to be devolved to Ministers, there would be a significant level of authority to be devolved to a Joint Committee, and if we were not clear about the basis on which it was to exercise our authority, we may run into difficulty.

Retained EU Law (Revocation and Reform) Bill

William Cash Excerpts

Wednesday 24th May 2023 Commons Chamber

[The Solicitor General]

I am very grateful indeed to the right hon. Gentleman for his engagement throughout the debate, not only today but previously. He and I have engaged on certain related, like-minded campaigns, and I pay tribute to him for the work he does in his constituency. I reassure him that the Bill’s provisions apply equally to all parts of the United Kingdom and that Northern Ireland Ministers will benefit from the same powers as Ministers of the Crown, not least thanks to amendments tabled in the other place.

As for the criticisms of the mechanisms of the statutory instruments that are being used, I wish those concerns about lack of scrutiny had been raised during our membership of the EU. Where were they? Where were the cries? Where were the complaints? They were simply absent.

[Sir William Cash]

Will my hon. and learned Friend give way?

[The Solicitor General]

I will, but it will be the last intervention that I take.

[Sir William Cash]

Does my hon. and learned Friend agree that under section 2, they all came in almost entirely? There was some primary legislation, but it was almost entirely done through statutory instrument, and against the background of the undemocratic process that took place at the Council of Ministers.

[The Solicitor General]

I am very grateful to my hon. Friend, the Chairman of the European Scrutiny Committee, for that point. I believe he has been a member of the Committee since 1985 and has chaired it for almost as long, but not quite. I served on his Committee, and he has seen thousands of regulations pass through, unseen apart from his work and that of his Committee. Once again, I pay tribute to him for that work.

In terms of environmental protections, I remind the House of the repeated commitments made by Ministers at all stages of the Bill’s passage. I pay tribute again to the right hon. Member for East Antrim (Sammy Wilson) for his very clear interventions, amplifying so well the point made by my hon. Friend the Member for North Dorset and made so powerfully by my right hon. Friend the Member for Chelmsford early on in her speech, with which I agree in its entirety. I will just touch on that point, and amplify it briefly: since leaving the European Union, this Government have passed the landmark Environment Act 2021. We have produced our 2023 environment implementation plan, our storm overflows discharge reduction plan, and our plan for water. There are other plans, Madam Deputy Speaker, but I will not try your patience by reading out each and every one of them. [Hon. Members: “Go on!”] Well, only because I am being encouraged to, I will mention the Agriculture Act 2020 and—because the Attorney General is here—the Fisheries Act 2020. That will gladden her heart.

There it is: any accusation that Government Members are any less concerned about environmental protections than Opposition Members is totally false. Under the Environment Act, we are committed to deliver a legally binding target to halt nature’s decline by 2030. In reviewing its retained EU law, DEFRA’s aim is to ensure that environmental law is fit for purpose, able to drive improved environmental outcomes while ensuring regulators can deliver efficiently. That will ensure that the UK regulatory framework is appropriate and tailored for our needs in our country—in the United Kingdom. The Government have clear environmental and climate goals, which have been repeatedly set out. I could say the same in relation to workers’ rights, for which my hon. Friend the Member for Watford made the case so powerfully in his earlier intervention.

I will mention two more points before I close, the first of which relates to page 16 of the Bill. The port services regulations have been mentioned: that legislation has never been appropriate in the context of the United Kingdom’s decentralised and competitive ports sector. Removing the port services regulations from our statute book will reduce the bureaucracy in our ports sector, doing away with unnecessary reporting burdens.

[Sir William Cash]

Hear, hear!

[The Solicitor General]

I am delighted that my hon. Friend is “Hear, hear”-ing so loudly from the Back Benches.

I will now turn to interpretive effects and Lords amendment 6, and some of the concerns that have been raised. I take this opportunity to again thank my hon. Friend the Member for Stone, who has ceaselessly campaigned to end what he calls the shadow statute book. The fact is that the amendment replaces the section of the Bill developed by my right hon. Friend the Member for North East Somerset—who introduced the Bill—whereby section 4 of the European Union (Withdrawal) Act will be repealed after 31 December this year. The matters saved by section 4 consist largely of retained rights, obligations and remedies developed in the case law, no less, of the Court of Justice of the European Union, and the vast majority of those overlap with rights that we already have. Those overlaps can cause confusion and legal uncertainty, and I invite right hon. and hon. Members to join us in the Government Lobbies this evening.

I once again thank all Members for their contributions to the debate. This schedule is by no means the limit to our ambition for reforms of EU law: we have the power and we will continue to amend EU laws. It is imperative that we ensure this Bill reaches Royal Assent promptly; and as to the Government amendments, I commend them to the House.

Question put, That this House disagrees with Lords amendment 6.

Section 1 of the European Union (Withdrawal) Act 2019

William Cash Excerpts

Tuesday 9th April 2019 Commons Chamber

[Mr Paterson]

My hon. Friend is absolutely right. Very helpfully, he has moved me on to my next point. I am looking at the clock, and I will be quite brief.

The biggest danger to business at the moment is uncertainty. Last week, sadly, we had the resignation of my hon. Friend the Member for Daventry (Chris Heaton-Harris)—or “Dane-tree”, as it was pronounced when I used to work in Northampton. He said to the Prime Minister:

“whilst I would have preferred to leave the European Union with your deal, I truly believe our country would have swiftly overcome any immediate issues of leaving without a deal and gone on to thrive.”

It is absolutely clear that there has been a relentless campaign by “Project Fear” against no deal. There is no such thing as no deal; there has already been a succession of mini-deals. We were told that aeroplanes would not fly; that has been sorted out. We were told that drugs would not arrive; my right hon. Friend the Secretary of State for Health has fixed the drugs problem. We know from Monsieur Puissesseau, who runs the port of Calais, that people there are relaxed. Looking at the World Trade Organisation terms, the WTO facilitation treaty, and the sanitary and phytosanitary terms, it is clear that it is illegal for our partners to arbitrarily stop the shipment of goods that conformed the day before we left. This whole issue of no deal has been blown up out of all proportion; it is a last stand for remain.

[Sir William Cash (Stone) (Con)]

Has my right hon. Friend seen the excellent article in the business section of The Daily Telegraph today, in which several very senior German people, including Mr Verheugen and others, have made it categorically clear that the failure of these negotiations is the fault of all the participants, including the EU itself?

[Mr Paterson]

I am grateful to my hon. Friend and neighbour for mentioning Mr Verheugen, who quite rightly warned about the dangers to the German economy, which, as we know, is sadly moving into recession. We will be doing the whole European economy a service if we resolve the wretched wrangle about Brexit now.

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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?

--- Later in debate ---

[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.

Withdrawal Agreement: Legal Opinion

William Cash Excerpts

1st reading: House of Commons
Tuesday 12th March 2019 Commons Chamber

[The Attorney General]

Of course I can confirm all those things, which are self-evident in the agreement. May I just point out to the right hon. Gentleman that although I am sure it is a clever forensic point, the circumstance in which a point of European Union law would arise in connection with the best endeavours and bad faith clauses is difficult to envisage? The reality is that it is a straightforward question of fact: is the European Union moving with the urgency and pace, to the procedural timetables and according to the procedural steps that this agreement now enforces?

The right hon. Gentleman is an honest politician, and he cannot look these things in the face and say that they mean nothing. These are important amplifications and clarifications of the duty of best endeavours. I quite agree with him, as I very much doubt we would ever get to an arbitral tribunal, because what these duties, new clarifications and amplifications do is set the framework for people’s conduct within the negotiation. It is about the impact on their behaviour and conduct. Very rare is the case in which one would get to an arbitral tribunal. What matters is the framework of obligations and responsibilities, and those have materially tightened on the European Union.

[Sir William Cash (Stone) (Con)]

I thank my right hon. and learned Friend for his opinion, which is not only for the Government, I would stress, but for Parliament and for the voters. The substance of the backstop issue to which he has just referred is the legal, constitutional and, therefore, political status of Northern Ireland within the United Kingdom, which cannot be put at risk.

My right hon. and learned Friend refers to a reduced risk of the UK being “indefinitely” detained in the protocol, but he adds that, ultimately, there is

“no internationally lawful means of exiting”

unless both the EU and the UK agree. Does he therefore appreciate, on his own terms, that this fundamental legal impediment trumps political considerations and that, therefore, there would be insufficient protection for Northern Ireland to continue as part of the United Kingdom?

[The Attorney General]

I do not agree. My hon. Friend knows we have a difference of opinion, and I hope that he will move towards my position. I still hope that might be so, and I say that because one has to look at the mutual incentives and disincentives for both parties to stay in the arrangement. I made this point in December and, for the reasons I advanced in December and in my November opinion, the incentives or disincentives for the European Union are as profound, if not greater, to get us out of the backstop than to keep us in it. That is what I firmly believe. He may disagree, but that is what I believe.

That is why I have taken the political judgment that this withdrawal agreement needs to be supported but, in saying that, these improvements do make a difference. In the last line of my advice, I say there can be no lawful exit unless there is a fundamental change of circumstance. It is extremely important to remember that there is always a right to terminate a treaty unilaterally if circumstances fundamentally change. There is no question but that we have a right to exit if those circumstances apply.

Northern Ireland Backstop

William Cash Excerpts

Tuesday 19th February 2019 Commons Chamber

[The Solicitor General]

May I assure the hon. and learned Lady, who expresses a deep interest in the Attorney General’s diary, that his plan is to make a speech about the issues, but it is not going to be some detailed exposition of a legal position, which he will bring to this House if appropriate? He has already shown an admirable willingness not only to address this House, but to comply with its orders, and I am sure he will continue to work in that spirit.

I am glad the hon. and learned Lady referred to the letter of 14 January, because it is important to remind ourselves that the Commission made it clear in that letter that it was determined to give priority to the discussion of alternative arrangements. That is very much part of the ongoing discussion. It would be somewhat difficult for me to commit the other party to the negotiation to a particular position. I have heard her comments with interest. I am here to speak on behalf of Her Majesty’s Government and our position is clear.

[Sir William Cash (Stone) (Con)]

As you know, Mr Speaker, I raised this matter urgently with you yesterday. Does my hon. and learned Friend accept that it is essential that when the Attorney General has had his discussions with the EU, he tables, in compliance with his parliamentary obligations, any asserted “legally binding” treaty text, in black and white, in the House itself by Monday 25 February, so that my European Scrutiny Committee can fully assess and report to the House on its legal meaning and the substance, and he does not merely address some audience at a City law firm?

[The Solicitor General]

My hon. Friend raises an important point, and both the Attorney General and I take the work of his Committee, a Committee of this House, with the utmost gravity. I assure him that any work that is done with regard to legal texts will of course be shared at the appropriate moment. I think he will understand that I cannot give him an absolute commitment in terms of dates, but I have heard what he said and will certainly bear those comments very much in mind in the days ahead.

European Union (Withdrawal) Act

William Cash Excerpts

Tuesday 15th January 2019 Commons Chamber

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I shall try to compete with the Opposition spokesman on brevity by being briefer than he was.

This is a chaotic debate in every conceivable way. Future generations will look back and be unable to imagine how we reduced ourselves to this disorderly exchange on a whole range of views, cutting across the parties, at a time when we were taking such a historic decision. That was summed up to me yesterday when I drove through the gates into New Palace Yard and was flanked on either side by lobbyists waving things at me. To my right, I had people waving yellow placards with the words “Leave means leave.” To my left, I had people waving European Union flags and demanding my support. In so far as anyone was shouting any clear message to me, it seemed that both sides were shouting the same thing. Both sides were demanding that I vote against the withdrawal agreement. That summed up the confusion, because both were pursuing objectives, neither of which I agreed with and which took us a million miles away from the national interest, which the House of Commons should surely turn itself to in the end.

We all know where we are coming from, and I am not going to labour my well-known views, because I have been here so long. Yesterday I slightly offended one of my very good friends in the House when I referred to hard-line remainers as well as hard-line Brexiteers. I confess that I am undoubtedly a hard-line remainer. I do not think that there is anyone more hard-line on the subject in the House. When I was a Cabinet Minister, I refused to vote for the referendum being held. The Prime Minister and the Chief Whip chose not to notice my attempts ostentatiously to abstain on the vote. I am the only person on the Government side of the House who voted against invoking article 50. I am a lifelong believer in the European project, and no opinion poll is ever going to change my mind at this stage.

[Sir William Cash (Stone) (Con)]

rose—

[Mr Clarke]

I apologise to my hon. Friend, but I have no time.

I believe that Britain’s role in the world now is as one of the three leading members of the European Union, and one that has particular links with the United States—when it has a normal President—that the others do not. That enables us to defend our interests and put forward our values in a very dangerous world. We have influential membership—we lead on liberal economic policy— of the biggest and most developed free trade area in the world, which is always going to be where our major trading partners are, because in the end geography determines that they matter to us more than anyone else.

I will not go on, but just in case there is any doubt about where I am coming from, let me say that I am being pragmatic, as we all have to be. The Attorney General was quite correct to raise the need for the House to achieve some kind of consensus and to accept some kind of compromise to minimise the damage, which I regard as my duty. The vote on invoking article 50 revealed to me that there was not the slightest chance of persuading the present House of Commons to give up leaving the EU, because it is terrified of denying the result of the EU referendum. To be fair to my friends who are hard-line Brexiteers and always have been, none of them ever had the slightest intention of taking any notice of the referendum, but there is now a kind of religiously binding commitment among the majority in the House that we must leave. So we are leaving.

Why, therefore, am I supporting the withdrawal agreement? It is a natural preliminary to the proper negotiations, which we have not yet started. Frankly, it should have taken about two months to negotiate, because the conclusions we have come to on the rights of citizens, on our legal historical debts and on the Irish border being permanently open were perfectly clear. They are essential preconditions, to which the Attorney General rightly drew our attention, to the legal chaos that would be caused if we just left without the other detailed provisions in that 500-page document.

The withdrawal agreement itself is harmless, and the Irish backstop is not the real reason why a large number of Members are going to vote against it. One would have to be suffering from some sort of paranoia to think that the Irish backstop is some carefully contrived plot to keep the British locked into a European relationship from which they are dying to escape. The Attorney General addressed that matter with great eloquence, which I admired. It is obviously as unattractive to the other EU member states as it is to the United Kingdom to settle down into some semi-permanent relationship on the basis of the Irish backstop.

In my opinion, we do not need to invoke the Irish backstop at all. We can almost certainly avoid it. It seems quite obvious that the transition period should go on for as long as is necessary until a full withdrawal agreement, in all its details on our political relationships, regulatory relationships, trade relationships, security and policing, has been settled. I do not think that will be completed in a couple of years, however. I actually think it will be four or five years, if we make very good progress, before we have completed all that, and I think that is the view of people with more expertise than me who will be saddled with the responsibility of negotiating it if we ever get that far. I have actually been involved in trade agreements, unlike most of the people in this House.

If we extend the transition period as is necessary, we will never need to go into the backstop. Putting an end date on the transition period is pretty futile, because we cannot actually begin to change our relationship until we have agreed in some detail what we are actually changing to. If this House persists in taking us out of the European Union, that is eventually where we have to get to.

--- Later in debate ---

[Sir William Cash (Stone) (Con)]

For me, this has been a very long journey towards leaving the European Union. The European question has always been about who governs this country and how. The national interest is served by our democratic system of parliamentary government, which has evolved over centuries of our history. We make our laws in this Parliament, in line with the consent of the voters in general elections, on the basis of the party manifestos. The Government are chosen by virtue of those who win the most seats. It is also fundamental that our proceedings are both accountable and transparent. We have Hansard, and all votes are recorded. Any voter can see the transcripts and can see how their laws are made and voted on in this Parliament.

We must fully repeal the European Communities Act 1972 on 29 March, as the European Union (Withdrawal) Act 2018 legislatively requires. I agreed with the Prime Minister when she said in her Lancaster House speech:

“we will not have truly left the European Union if we are not in control of our own laws.”

However, the withdrawal agreement does not achieve that, despite breathtaking assertions to the contrary. This situation may even be indefinite through the backstop, and through the undemocratic procedures of the Council of Ministers. We could be indefinitely shackled, as article 132 of the agreement affirms, even up to 31 December “20XX”. The decisions in the Council on which laws we obey, and changes to the rules creating great uncertainty for business, will be made through qualified majority voting or consensus by the other 27, behind closed doors. We will not be there. There will be no transcript, and no explanations will be given of how or why the laws imposed on us will be arrived at.

That alone is a reason why I shall vote against the withdrawal agreement. It is a denial of our democracy, and therefore of the national interest. It defies the referendum vote and the withdrawal Act itself, which repeals the European Communities Act and all the treaties and laws, including the single market and the customs union, which have been heaped on us since we joined the European Community in 1972-73.

It is outrageous to suggest that what we are doing in rejecting the withdrawal agreement is undemocratic. This is pure Alice in Wonderland. It turns the very notion of democracy and the national interest on its head, but that is not all. The agreement is not compromise, as the Attorney General suggested; it is capitulation. Nor is it pragmatism. We are not purists. We are defending our democracy against servitude.

Apart from control over our laws, there is the question of money. We will be paying not merely £39 billion but far more for nothing. We will lose the rebate. Then there is the role of the European Court of Justice. There is the issue of our not being able to trade independently outside the clutches of the European Commission. We have prodigious opportunities to create prosperity and to provide the revenue for the payment of our public services by trading on our own terms with other countries in the world throughout the Anglosphere and the Commonwealth. There is also the question of the constitutional status of Northern Ireland.

The state aid proposals in the agreement would give a power of veto to the European Union over our incentives in relation to ports and industrial development, which would be one of our primary means of attracting foreign direct investment. It should also be borne in mind that, in the European Union, we run a deficit in the single market in goods of about £95 billion a year, whereas Germany hides behind the euro with a surplus of £140 billion with the EU27. Sir Paul Lever, our former British ambassador to Germany, said recently in his book “Berlin Rules”:

“the EU is geared principally to the defence of German national interest.”

He explains, as I did in my own book “Against a Federal Europe” in the early 1990s, that there will be a German Europe. He shows that no decisions, including those related to the negotiations for the withdrawal agreement, were made by the Commission or by other member states without the prior agreement of Germany itself.

Why on earth would anyone want to remain? The EU does not work for the UK or, indeed, for the EU itself. Youth unemployment in countries such as Italy, Greece and France is running at between 20% and 50%. Those countries are utterly disillusioned with the austerity imposed by the German-led fiscal compact. Hungary, Poland and other countries in central Europe are in revolt, and even Sweden and Denmark have moved to the right. So what is it that makes the reversers in the House believe that we should remain in this imploding, undemocratic European Union, whose economic foundations are in tatters as the euro stagnates? Why on earth do they believe that a new “people’s vote” is needed, when one was enacted in the House of Commons and voted for by most of those who are now trying to unravel the withdrawal Act, and despite the fact that every Conservative endorsed the referendum vote in our manifesto?

As I argued some months ago, our system is one of parliamentary government, not government by Parliament. Government by Parliament would be anarchic. So we are faced with not only a constitutional crisis but a massive breach of public trust, as a party and as a Parliament. Until the time of the Chequers proposals, I was fully prepared to support the Government, but on 6 July my trust in the Government and the Prime Minister was completely lost.

On 9 July I asked the Prime Minister how she could reconcile Chequers with the repeal of the European Communities Act, and received no reply. During the debate that took place the following week, I stressed that the 80-page White Paper which set out those proposals, and which is now intrinsic to the withdrawal agreement, had been pre-planned for probably up to a year. I explained that it would unravel the European Communities Act, and that this was a gross misleading of Parliament. Indeed, the Chequers meeting itself had bounced the Cabinet, in breach of collective responsibility and in breach of the ministerial code. All those factors amount to a monstrous breach of constitutional and public trust.

That brings me to what happens next, when I believe the withdrawal agreement will be consigned to the grave of history. Far from Members of Parliament—as the Prime Minister has asserted—voting for the agreement, it is our duty to vote against it. We will not have effectively left the European Union if we do not. We will also be undermining our Westminster system of government, and depriving ourselves of the monumental opportunities of global trading on our own terms and with our friends in the United States who are so disillusioned with this agreement—and the same applies to other members of the Commonwealth.

As Churchill once said, and as I was reminded at the time of Maastricht by my constituents, we should put our country first, our constituency second, and our party third. Tragically, our Prime Minister became leader of our party by coronation and not by the will of the party members—all the recent evidence suggests that they are profoundly against the withdrawal agreement—and we then had the deeply unsatisfactory outcome of the last general election.

I simply say, therefore, that now is the time to walk away from this European Union. The expression “no deal” is a misnomer. It is not a default position; it is what the Act of Parliament endorsing the Lisbon treaty specifies. There must be no extension of time indicated by the so-called European Union (No. 2) Bill presented by my hon. Friend the Member for Grantham and Stamford (Nick Boles). I am glad that the Prime Minister reaffirmed that to me yesterday. It will achieve nothing.

I strongly urge the Government to conclude, after the vote is cast tonight, that enough is enough, and that we have reached journey’s end. Now is the time to walk away from the intransigence of the European Union and our failed policy of seeking to supplicate its guidelines, its terms and its paymasters. We witnessed similar events in May 1940 when the then Prime Minister actually won the vote after the Norway debate, but, on reflection, concluded that he had to resign because he had lost the confidence of Parliament as a whole. I believe that there are lessons in that for the Prime Minister. She should consider her position, and should do so with dignity and without rancour.

Withdrawal Agreement: Legal Position

William Cash Excerpts

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

The right hon. Gentleman has thrown down the gauntlet in asking me to re-examine my support for the agreement. I do not mind confessing to him that I have wrestled with this question, because I am a Unionist and dislike any divergence between Northern Ireland and the rest of the United Kingdom; but I have had also to take into account first that this is an arrangement that we can avoid, and secondly that if we were in it, it would be as much an instrument of pain to the European Union as it would be to the United Kingdom.

I ask the right hon. Gentleman to think of what the European Union is now accepting. It accepts that Northern Ireland can have free circulation of its goods not only into the single market, but to Great Britain. No other single market trader will have that advantage. Hundreds of single market traders throughout the European Union are going to resent the fact that the goods of a Northern Ireland business situated one mile north of the border can flow smoothly into the single market and smoothly into Great Britain, while theirs cannot. So there are real reasons, which the right hon. Gentleman and I can discuss at greater length, why I do not believe that this will become a permanent solution.

Let us suppose, however, that those negotiations broke down or took an unreasonable length of time. All around the European Union there will be single market traders seeing the benefits that Northern Ireland can have, who will be induced by those benefits to ask, “Should we go on putting up with this uncompetitive arrangement?” And what are they likely to do? Why, they are likely to beat a path to the door of the Commission and the Court, and there to say, “Didn’t you say that article 50 is not a sound legal foundation for this arrangement?” And I tell you frankly, Mr Speaker, they are likely to win.

[Sir William Cash (Stone) (Con)]

On the issue of precedents, there are five—[Interruption.]

[Mr Speaker]

Order. I understand that the House is mildly animated, but we must hear what the Chair of the European Scrutiny Committee wants to say.

[Sir William Cash]

Thank you, Mr Speaker.

There are five precedents over the past 40 years of full disclosure being made of an Attorney General’s advice for compelling and exceptional reasons in the public interest. Does my right hon. and learned Friend agree that he can—as in my view he should—consent on his own independent account as Attorney General under the ministerial code to the full publication of his legal advice given that, as cited in the Queen’s bench division in July 2009, the then Attorney General’s advice on the seminal Factortame case was disclosed, which dealt with the incompatibility of the European Communities Act 1972 with an Act of Parliament, the Merchant Shipping Act 1988, which was then struck down in the courts, analogous to the legal status of the withdrawal treaty in relation to the European Union (Withdrawal) Act passed by this House in 2018, and with which that treaty is incompatible?

[The Attorney General]

This is not a question of the lawfulness of the Government’s action, as it was in the publication of Lord Goldsmith’s advice; this is simply a view on the legal effects of a particular agreement. There are hundreds of lawyers throughout the United Kingdom, I am delighted to say, who could offer a perfectly competent view on this agreement. I cannot see why there is anything exceptional about the current circumstances and about my advice. But let us suppose there were something exceptional about my advice; well, I am here to be asked any question that the Government have also asked, so all that right hon. and hon. Opposition Members have to do is ask and I will give them a frank answer.