Northern Ireland
William Cash Excerpts(2 months, 2 weeks ago)
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Sir William Cash (Stone) (Con)
As my right hon. Friend may expect, I shall now refer to section 38 and ask him a question about it. On the amendments made under the statutory instrument—which is not by Act of Parliament, of course—the arrangements under section 38 of the European Union (Withdrawal) Act 2020 state that the Parliament of the United Kingdom is sovereign and that its sovereignty subsists notwithstanding section 7A of the 2018 Act, including the Windsor framework. My right hon. Friend will know what I am saying: in practice and in law constitutionally there is the capacity for overriding not only the withdrawal agreement and the protocol but the Windsor framework as a result of what is contained in those words.
Chris Heaton-Harris
I note my hon. Friend’s point. As I said yesterday, I hope he recognises what we are doing in this statutory instrument—making Northern Ireland’s place in the United Kingdom a strong addition to the section. As I said to him yesterday, his original clause has been a big part of the solution to this conundrum. I am grateful to him for it and completely understand the point he has just made and thank him for it.
Chris Heaton-Harris
I could not have put it better myself. The hon. Gentleman is knowledgeable about the subject and has been well involved in the negotiations behind the document and the statutory instruments we are talking about. He is 100% right.
Sir William Cash
Does my right hon. Friend, who himself was on the European Scrutiny Committee, recognise that we are constantly monitoring these things? Indeed, the hon. Member for Belfast East (Gavin Robinson) is on that Committee.
Chris Heaton-Harris
I had the pleasure of serving for five years on the European Scrutiny Committee under the wise chairmanship of my hon. Friend, and he is absolutely right. That scrutiny is what this House does best. The Select Committee system is there to scrutinise all aspects of legislation, what the Government do and what comes our way. I know his expertise, having experienced it.
When we were members of the European Union, wading through the hundreds of different explanatory memorandums that came the Committee’s way was quite a job and quite a responsibility. One of the commitments we have made is that we will make sure that information is freely available to Assembly Members in Northern Ireland—when they take their seats—to ensure that they can undertake democratic scrutiny of proposals that might well affect Northern Ireland, so that they have the information they need to use the Stormont brake, should they so choose. Scrutiny is a vital part of all this.
Hilary Benn
I see that the Secretary of State is nodding. It is also important to remind ourselves of the significance of those regulations and the democratic checks that they will create. The Stormont brake will be available to the Assembly when the EU seeks to amend or replace existing EU goods legislation in annex 2 of the framework. The Windsor framework gives a new role to the Assembly to approve or reject any proposed new EU legislation being added to the framework. I note that page 47 of the Command Paper states that the full operational details for the Stormont brake will be set out “in writing” for the Assembly. Can the Secretary of State confirm when that will happen and what form it will take, so that we in the House can see it?
Sir William Cash
Does the right hon. Gentleman accept that there is a distinction between new and amended legislation in this context? They are not by any means the same thing, particularly as amended legislation can be very extensive.
Hilary Benn
I take that point, but we are talking about two separate categories: one is a long list relating to the legislation that formed part of the original protocol in the annex; and the other relates to new stuff coming from the European Union.
Sir William Cash (Stone) (Con)
Section 38 of the European Union (Withdrawal Agreement) Act 2020 prescribes that parliamentary sovereignty will prevail, notwithstanding section 7A of the 2018 Act. The wording is a bit difficult to read because one has to go through all the enactments to ensure that one has got it right, but it does say “including the Windsor Framework”, so for practical purposes our parliamentary sovereignty subsists. However, I find it incongruous, and rather Lewis Carroll, that we should end up continuing to maintain EU law in relation to Northern Ireland. I could make a long speech about this, but I will not do so.
The fact is that no man can serve two masters. In respect of the wording of the statutes, let me paraphrase the words of Humpty Dumpty: words mean what we choose them to mean, and the question is who is to be master—that is all. This is the problem, this is the dilemma, this is the basis on which most of the controversies occur, and I regret to have to say that it may ultimately be decided, on some day in the future, by the prospect of a referendum. That, of course, is what Sinn Féin have been asking for. I personally believe that we should protect Northern Ireland, and I have always done everything in my power to do just that.
Having said that, I should also mention that my family have been involved in the Irish question since the 1840s in this House—for instance, John Bright and Frederick Lucas, the Member of Parliament for County Meath. I make that point to emphasise that I take this very seriously, and, indeed, I pay respect to the members of the DUP for the way in which they have fought for their interests. There are some measures in the statutory instruments that I can understand as having benefits, but ultimately the question will turn on the issue of whether, given the constitutional framework within which this is being presented, with all the assurances that we are hearing and all the hopeful aspects—which I expect to be delivered—we find that it will be decided by the test of time. We will see whether it works.
There will be continuing arguments and continuing debates, but unfortunately I have to say that, just as with section 2 of the European Communities Act 1972, there is no way in which section 8C of the 2018 Act had anything other than the same fundamental limitation as regulations under that section, in that they cannot contradict or restrict the scope of EU law. It has to be said, because it is the honest truth. However, that does not alter the fact that efforts can be made; the Stormont brake may come in and may be able to make changes—I say everything with reservation. I voted against the Windsor framework, because I foresaw that issues of this kind would arise. I pay tribute to all the people involved in trying to mitigate the ultimate impact of the Windsor framework, but the scope of EU law that still remains leaves me with serious concern. As Chairman of the European Scrutiny Committee, I end by saying that we will be monitoring this and we are concerned— I am concerned. The devolved Assembly is a democratic plus: we cannot issue orders from Westminster to Northern Ireland if the people do not want it. The bottom line is that those in the DUP have a real issue on their hands with Sinn Féin. Be that as it may, I believe they will do everything in their power to maintain their democratic rights.
Gavin Robinson
The Chairman of the European Scrutiny Committee, who is my friend, has outlined his concern about the constitutional future of Northern Ireland. He will know that, legislatively, in 1998 it was settled that the future of Northern Ireland’s place in the UK is based solely on the decision made by the people of Northern Ireland. He will remember that in 2000 Gerry Adams said that there would be a united Ireland by 2016. He will also know that today, in 2024, the Government who will have to decide whether there should be a border poll have declared in the Command Paper, “Safeguarding the Union”, on page 68, paragraph 3:
“On the basis of all recent polling, the Government sees no realistic prospect of a border poll leading to a united Ireland.”
Sir William Cash
I am extremely glad to hear the hon. Gentleman make that point.
To conclude, I simply say that you can read the crystal ball, but the question is: can you always read the book?
Northern Ireland Executive Formation
William Cash Excerpts(2 months, 2 weeks ago)
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Chris Heaton-Harris
I thank the hon. Gentleman for his question; he is absolutely right. I know of his history and the story about his wife, which he has mentioned to me a number of times. I thank him for his interest in all things Northern Ireland and all things Union. In fact, there is a body, the British-Irish Council, that does exactly what he suggests, at the highest level. Hopefully, at the next meeting of the British-Irish Council, the First Minister and Deputy First Minister of Northern Ireland will attend with representatives of all the other devolved Administrations of the United Kingdom.
Sir William Cash (Stone) (Con)
The proposed legislation is of great constitutional significance, yet it is merely a statutory instrument and not an Act of Parliament. What restrictions on its lawmaking has the EU agreed over the single market in Northern Ireland? What democratic improvements are being made to the Stormont brake in Northern Ireland to ensure divergence, and to enable the United Kingdom Government to remove or veto the imposition of EU laws?
Chris Heaton-Harris
I thank my hon. Friend for his question. He and I have had a number of discussions over the years on these sorts of matters, and his question is a very wise one. As I mentioned, we are amending section 7A of the European Union (Withdrawal) Act 2018, so there is now a powerful democratic safeguard on the flow of EU law, which a new Assembly will have immediately at its fingertips. I thank my hon. Friend, because I know about the work that he did to ensure that section 38 was included in the Act. I hope he recognises that we are adding Northern Ireland’s place in the United Kingdom, which is a strong addition to section 38 of the European Union (Withdrawal) Act 2020. Indeed, his original clause has been a big part of the solution to this conundrum, and I am truly grateful to him for it.
Northern Ireland
William Cash Excerpts(1 year, 1 month ago)
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Julian Smith (Skipton and Ripon) (Con)
I welcome today’s debate and vote. The Windsor framework has my full support. I also welcome the fact that the Labour party, the Lib Dems and almost the SNP, I think, are supporting the Government and the Conservative party today.
Those of us who have followed this issue closely probably never expected to be here debating a renegotiation of the treaty itself. It is a testament to the Prime Minister’s determination and focus, and those of the Secretary of State, the Foreign Secretary and others, that they have been able to achieve that.
As someone who has been slightly traumatised by Brexit votes over the years, I am also delighted that this is the end chapter. Notwithstanding further improvements and changes, I think this chapter is one that probably all of us are delighted to be ending.
Sir William Cash (Stone) (Con)
Notwithstanding what my right hon. Friend has said, may I suggest that this remains unfinished business as regards our leaving the European Union?
Julian Smith
Some things never change, but I pay tribute to my hon. Friend for his continued monomaniacal focus on this issue.
I also want to acknowledge the work done by hon. Members in Northern Ireland. Although I believe we will be in different Division Lobbies today, the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson) spoke powerfully about the democratic deficit and the need for cross-community safeguards, which are now at the heart of the Stormont brake. As one of Michel Barnier’s top advisers said, and as the Secretary of State has just told us, that has actually been a big victory for the Democratic Unionist party. The hon. Member for Upper Bann (Carla Lockhart) worked harder than anybody else to finally fix the issue of seed potatoes for her farming constituents, and the hon. Members for North Down (Stephen Farry), for Foyle (Colum Eastwood) and for Belfast South (Claire Hanna) have all engaged closely with businesses and Northern Ireland enterprises to find practical solutions. I believe that huge progress has been achieved, and we now need to maximise the potential for Northern Ireland to become one of the most attractive places in the UK to invest in.
I want to finish by talking about the Union. The greatest strength we have in securing Northern Ireland’s place in the Union is the majority of people in Northern Ireland who support it. We must cherish, nurture and expand that support and consent at every opportunity. Recent polling has shown that there is huge support across Northern Ireland—above 70%—for the Windsor framework and for solving this issue, and in particular cross-community support for the access it provides to both the UK and EU markets.
I believe that if we can bank the wins in this deal and secure over time stable power sharing, we can look forward to decades and decades of overwhelming support for Northern Ireland remaining an integral part of the United Kingdom.
Sir William Cash (Stone) (Con)
I believe in the real Union of the United Kingdom and the sovereignty of its Parliament here at Westminster. Articles 1 and 2 of the protocol clearly set out the principle of consent for Westminster and that the territorial integrity of the United Kingdom is fundamental. Consent and veto are different things.
We have left the EU and passed section 38 of the European Union (Withdrawal Agreement) Act 2020, guaranteeing the sovereignty of the United Kingdom Parliament, yet all laws passed before we left in relation to the single market still apply to the people of Northern Ireland, subjugating them to the EU, but do not apply to the rest of the UK.
There is no such thing as Northern Ireland sovereignty; there is only constitutional Westminster sovereignty. I am afraid I do not recognise the expression “practical sovereignty” used by the Secretary of State in this debate and in the letter he wrote to the Chair of the Joint Committee on Statutory Instruments on 20 March. Why should 2 million Northern Ireland citizens and voters for Westminster be treated differently from, say, the 2 million people of Birmingham, Liverpool or Manchester?
Chris Clarkson (Heywood and Middleton) (Con)
My hon. Friend is making a powerful speech. Obviously, he is a subject matter expert and I know he has passionate views on this, but, listening to him, the phrase that comes to mind—a German one, I am afraid—is “pathologische Realitätsverweigerung”, or pathological denial of reality. The simple fact is that the lived reality in Birmingham and Manchester is entirely different. We are not against another national border. We do not need some form of alignment with a neighbour for the free movement goods and services. For example, I think there is a single milk processing plant on the island of Ireland. There has to be some kind of practical recognition of the difficulties and the lived reality.
Sir William Cash
The heading of the statutory instrument that we are discussing in this motion is “Constitutional Law”, and I am sorry to say that what my hon. Friend says—some reference to pathological something-or-other—makes absolutely no sense in relation to constitutional law. We in this country operate a constitutional law that confers sovereignty upon the Westminster Parliament. That includes the people of Birmingham, Manchester, Liverpool and Northern Ireland, and it should do so equally.
Since Brexit, more than 640 laws, as we see each week in the European Scrutiny Committee, which I chair, have been passed already for Northern Ireland by the EU Council of Ministers: behind closed doors, in Brussels, by majority vote, without even a transcript. Can we imagine laws being passed in this country, in Westminster, without Hansard—without a transcript—and by majority vote? It is unthinkable.
Colum Eastwood
If memory serves me right, the hon. Gentleman voted for the protocol, which did not have a Stormont brake and had far more checks in it. Can he explain why he is voting against this?
Sir William Cash
Very simply, because we agreed that we would bring in the Northern Ireland Protocol Bill, which I will come on to in a minute. That is the difference. That Bill would have dealt with the situation. We in the rest of the UK have left the EU and so are subject to our own laws and not those of the EU, as we were for the last 50 years.
As I said to my right hon. Friend the Member for Skipton and Ripon (Julian Smith), this remains unfinished business. Pre-Brexit single market legislation continues in Northern Ireland. The Northern Ireland Protocol Bill dealt with the unacceptable imposition of EU laws, but that Bill is now being disposed of, to my very grave concern, although it was passed in this House by a majority of 72 on Third Reading, and most of the hon. Members here today—on the Government side of the House, anyway—voted for it.
The Windsor framework does not effectively disapply EU law as such in, for example, the customs regime, because that falls within the legal competence of the EU in relation to goods. If the UK purports to use its so-called veto—the Stormont brake—on this question, the EU will be able to get round it sooner or later on the green lanes and may invoke retaliatory measures. I am afraid I am not impressed by the expression “exceptional circumstances”—words mean what just we choose them to mean, as Humpty Dumpty said. The question is who is to be master—that is all—and I believe firmly that it will be the European Union.
One of my sadnesses about this whole business is that there really was a need for proper time to discuss alternative legal arguments in consultation with the Government. There are papers that have been produced in the last 48 hours and over the last few weeks—blogs and commentaries by distinguished lawyers—that clearly demonstrate that the arguments presented by the Government are not those agreed by other eminent lawyers. This is a point of law as well as a point of fact.
I am sure the question of democratic consent and the inadequacy of the Stormont brake will be addressed by DUP Members today. That question is as important for all of us as the main principle of the Union. The procedures have been rushed, and I simply cannot accept that it is right for a statutory instrument to be approved in this House today, when there is not yet a legal decision in the Withdrawal Agreement Joint Committee—that will not be until Friday, so we hear.
Furthermore, I now hear that the House of Lords, which is part of that Joint Committee, is not going to consider the statutory instrument until Wednesday 29 March, which is after the Withdrawal Agreement Joint Committee sits. The Government, in seeking approval of the statutory instrument today, are not doing so in synchronisation with the House of Lords. I find that manifestly unsatisfactory.
I am deeply concerned, too, that these procedures are not following the criteria of Standing Order No. 151 regarding the Joint Committee on Statutory Instruments. I think, if I may say so with great respect, that the Chairman of the Committee, the hon. Member for Newport East (Jessica Morden), should really be here today to explain its position. I was surprised to see a letter from the Secretary of State to the Chairman of that Committee dated 20 March.
Vicky Ford (Chelmsford) (Con)
As one of the few Members of this House who was born and raised in Northern Ireland, I want to make it very clear that this is not about the Secretary of State’s correspondence, but about the future of the people of Northern Ireland. The vast majority of them support the Windsor framework, as does the business community. They believe that the deal negotiated by the Prime Minister is much better than they ever thought possible. The people of Northern Ireland and, indeed, the people of the UK need to move on and focus on more important things.
Mr Deputy Speaker (Mr Nigel Evans)
The hon. Gentleman has spoken for eight minutes now, and this is really a very time-limited debate, because it has to finish at 2.21 pm.
Sir William Cash
I am just about to conclude by saying that this debate is about the rule of law and constitutional law, as well as the very fair points that my right hon. Friend the Member for Chelmsford (Vicky Ford) has just made. I do not doubt the importance of the stability of Northern Ireland, having taken great interest in these matters for many years, but I insist that the constitutional position is not reflected by the arrangements in the Windsor agreement. I simply make this final point: the proof of the pudding will be in the eating.
Northern Ireland Protocol
William Cash Excerpts(2 years, 9 months ago)
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Brandon Lewis
I was kind of waiting for the point at which the hon. Lady would actually stand up for the United Kingdom and the people of Northern Ireland in getting a solution. I remind her that she may want to think about joining the UK Government in making the point to the EU that it also has a responsibility—which it has previously accepted but needs to deliver on—in terms of the people of Northern Ireland. In January, there was an agreement to work at pace; we are now in July and the issues remain unresolved. We saw the EU’s attempt to trigger article 16 in a way that for many detrimentally affected the sense of feeling around the institutions of the Good Friday/Belfast agreement. We are still dealing with the fallout from that action—that is just a reality of where we are.
We want the EU to engage with our proposals. We have sought the EU’s engagement with our proposals in good faith in the dozen or more papers that we have put to it about ways to move forward. The reality of where we are now is that instead of having a continual, piecemeal approach to dealing with things as we go along and coming up against the grace periods that cause disruption for businesses and communities, we think it is right to take an approach that deals with the problem—not just the symptoms but the underlying problem that we need to see corrected—in the round. I suggest that the Opposition would do better to defend the people of Northern Ireland and the UK than to continue to defend the actions the EU takes to undermine the strength of the integral market of the people of the United Kingdom.
We do have good relationships, and I have good relationships, as does the Prime Minister, with our counterparts in Ireland—the Taoiseach, the Foreign Minister and the Tánaiste—and we continue to develop on those. It is a bit rich of the hon. Lady to talk to us about understanding Northern Ireland when not only do prominent members of her own party—including the former shadow Home Secretary, the right hon. Member for Hackney North and Stoke Newington (Ms Abbott)—claim that Labour is not even a Unionist party, but Labour does not even stand candidates in Northern Ireland.
We will continue to do what is right for the United Kingdom. We want to work with our partners in the EU. When people get a chance to read through the Command Paper, they will see that we are not taking the opportunity to trigger article 16, because we want to work in partnership and find a solution to all the problems that works for people in Northern Ireland. When we even have the Chief Rabbi and the president of the Board of Deputies coming together to make clear the substantial problems of the Jewish community in Northern Ireland, that should make it clear that the protocol is a problem for communities right across Northern Ireland. We have a duty to resolve it, not play politics with it.
Sir William Cash (Stone) (Con) [V]
On the arrangements that have just been announced, I greatly welcome the realistic and reasonable approach of the Prime Minister, Lord Frost and my right hon. Friend the Secretary of State. Does my right hon. Friend agree, that given the unique circumstances of Northern Ireland, as set out in the protocol, the EU must understand that the UK, having recently and democratically left the EU, rejects the EU’s legalistic intransigence but will continue to negotiate in the short term, on the clear understanding that our national interest requires equal reasonableness and realism from the EU, or the Government will take the necessary steps that my right hon. Friend just outlined —and that they mean what they say?
Brandon Lewis
My hon. Friend is absolutely right: we do want to take that approach. The reality is that in practice the outworkings of the protocol are having a detrimental effect. One of the key things in the opening part of the protocol itself is the determination that we would not disrupt the everyday lives of people in their communities. Regardless of people’s constitutional view of Northern Ireland, the protocol is having an impact, which is why the First Minister has also pointed to issues in the protocol that she wants to see resolved. Obviously, people across the communities are having issues as well. We need to get this resolved for all the people of Northern Ireland, and my hon. Friend is absolutely right that we need to do so in a realistic why, recognising the challenges on the ground, and to deal with it as partners with the EU in a way that can deliver for the people of Northern Ireland, with the understanding that, of course, Northern Ireland is an integral part of the United Kingdom.
United Kingdom Internal Market Bill
William Cash Excerpts(3 years, 7 months ago)
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Mr Walker
I have to say to the hon. Gentleman that we have consistently followed through with our agreement. We have done that with the delivery of protocol requirements when it comes to the legislation for the dedicated mechanism and to citizens’ rights, and we will do so regarding EU state aid rules applying in Northern Ireland in respect of goods and electricity as agreed.
Mr Walker
I will make a bit of progress and take an intervention from my hon. Friend later.
Clause 44 establishes a statutory requirement that no one besides the Secretary of State may notify the European Commission of state aid where the UK is required to do so as a consequence of article 10. That codifies in legislation the existing practice where aid is notified by the Foreign Secretary via the UK mission in Brussels and will ensure that a uniform approach to the state aid elements of the protocol is taken across the UK.
Paul Blomfield
I am happy to give way again. I am interested to know whether the hon. Gentleman will pursue his point about the Sheffield steel industry, on which he is usually wrong.
Sir William Cash
I am actually going to look briefly at a simple point, which is that, apart from our own judges, the German federal constitutional court in December 2015 clearly stated that international law leaves it to each state to give precedence to national law. International law gives effect in that way. How does the hon. Gentleman answer that?
Paul Blomfield
I thank the hon. Member for his intervention. I think the answer was provided by the Northern Ireland Secretary when he spoke to the House on the issue and he said that—let us all think on these words—
“yes, this does break international law in a very specific and limited way. We are taking the power to disapply the EU law concept of direct effect, required by article 4”.—[Official Report, 8 September 2020; Vol. 679, c. 509.]
On that, he was right. Article 4 does require that the UK ensures compliance with paragraph 1 of the withdrawal agreement, including our courts, disapplying
“inconsistent or incompatible domestic provisions”.
Article 5 makes it absolutely clear that we have an obligation to
“refrain from any measures which could jeopardise the attainment of the objectives of this Agreement”,
which, as the Northern Ireland Secretary made clear, is the purpose of clauses 41 to 45. In adopting them, we are in breach of international law and unsettling the situation in Northern Ireland, to which the Minister rightly referred. Indeed, the Lord Chief Justice of Northern Ireland, Sir Declan Morgan, who is a widely respected voice, said that the Government’s actions “may well undermine trust”.
Paul Blomfield
The right hon. Gentleman came back at me on the quote I gave about trust. That quote was from the Lord Chief Justice of Northern Ireland, and it was about trust in relation to the Government’s actions. In terms of how we deal with the issues that the right hon. Gentleman refers to, I will come on to those subsequently.
The Government’s cavalier disregard for the rule of law has been condemned by the Law Society and by the Bar Council. It has shocked people across the country, and it has disturbed our friends and allies around the world. Part of the tragedy of the Government’s actions is that they never needed to do this. Instead of throwing their toys out of the pram, there was a grown-up solution there in the Northern Ireland protocol itself: the dispute resolution mechanisms agreed by the Prime Minister, to which the Minister has referred at length and which have been utilised already on other issues. However, in recognising those, the Minister failed to explain to the House satisfactorily why the Government have chosen not to exercise that route and have instead put this proposed legislation before the House. Article 16 provides for either the EU or the UK to take unilateral safeguard measures:
“If the application of this Protocol leads to serious economic, societal or environmental difficulties”,
and annex 7, to which I think he alluded, sets out the process to which matters can be resolved through the Joint Committee set up to oversee the implementation of the withdrawal agreement.
Do not take my word for it. The former Attorney General, the right hon. and learned Member for Torridge and West Devon (Mr Cox), who I seem to recall was once celebrated in the Conservative party, made the case in The Times last week when he said:
“There are clear and lawful responses available to Her Majesty’s Government”,
which
“include triggering the agreed independent arbitration procedure set out in the withdrawal agreement and, in extremis, these might legitimately extend to taking temporary and proportionate measures, where they are urgently necessary to protect the fundamental interests of the UK”.
That was his conclusion. And the Prime Minister could not answer my right hon. Friend the Member for Leeds Central (Hilary Benn) at the Liaison Committee last week when he asked the simple question why he had not been prepared to use those measures, which he negotiated, to resolve any disagreements, rather than engage in lawbreaking.
So let me ask the Minister a simple question, which I hope he will come back to at the end of this very long debate, on the question of state aid. The Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, the right hon. Member for Surrey Heath (Michael Gove), said it was a matter for the Joint Committee. Will the Minister be able to confirm in his winding up whether the Government have actually raised their concerns there for resolution?
Our amendments seek to put the Bill right. They reassert our commitment to the rule of law by removing the notwithstanding clauses, which have been the subject of so much attention, but also the other references to disapplying the protocol and disregarding the law.
Paul Blomfield
No. I have taken one intervention from the hon. Gentleman and, with respect for those wishing to speak, I will follow the injunction of the Chair and make progress.
The Government are sending a worrying message, too, about their attitude to accountability in Government amendments 64 and 65, limiting opportunities for judicial review. Our amendments 58 and 59 would put that right, protecting those rights for the scrutiny and challenge of Ministers. If the Government are, as they say, acting reasonably, they should not be afraid of scrutiny or of challenge. Overall, our amendments 52 to 60 would enable the Bill to achieve its aims, but to stick to the rule of law, the Human Rights Act 1998 and our international obligations. We hope that the Government will accept them, but if they do not, we will vote against clauses 42 to 45 standing part of the Bill.
Many Members on the Government Benches talk about their ambition for global Britain. We share the desire for strong trading partnerships after we leave the transition, but that will be undermined by flouting international law, and the Government know that. The Foreign Secretary was dispatched to Washington last week to calm fears. This visit seemed to make things worse. As he left the United States, the man that the polls indicate will be the country’s next President said:
“We can’t allow the Good Friday Agreement that brought peace to Northern Ireland to become a casualty of Brexit. Any trade deal between the US and UK must be contingent upon respect for the Agreement and preventing the return of a hard border. Period.”
He was adding to the views expressed on both sides of the aisle in Congress that there will be no US trade deal if this Bill proceeds unamended. We should remember that the UK and the US are co-guarantors of the Good Friday agreement. It is a responsibility that the future President of the United States seems to be taking more seriously than the Government.
This debate is about our place in the world. It is about our values. It is about the sort of country that we want to be. If we cannot comply with our treaty obligations, how can we ever demand that others do so? We are giving a green light to oppressive Governments, from China to Belarus, who flout the rule of law. This Bill has deeply damaged trust in our country and our place on the global stage. In our votes tonight and tomorrow, we have an opportunity to rebuild our reputation to make it clear that we are a country that can keep its word, a country that can make agreements and stick to them, and a country that believes in the rule of law. Let us not fail in that responsibility.
Sir William Cash
I am most grateful to my right hon. Friend. Is she aware that the EU itself and indeed many other states throughout the world, including many democratic countries, have persistently broken international law, and that this applies not only to other countries, but to the United Kingdom? There are many overrides of international treaties by the UK itself.
Mrs May
Let me get this right. My hon. Friend seems to be saying, “If somebody else does something wrong, it’s okay for us to do something wrong.” I am sorry, I do not agree with him on that point.
I recognise that my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) has taken every effort to ameliorate the impact of these clauses, and the Government have accepted and put down their own amendment. But, frankly, my view is that to the outside world, it makes no difference whether a decision to break international law is taken by a Minister or by this Parliament; it is still a decision to break international law. This can only weaken the UK in the eyes of the world. One of the great strengths we have as a country is our commitment to the rule of law, and this will have been damaged. Our reputation as a country that stands by its word will have been tarnished, and the willingness of other countries to trust the United Kingdom and its values will have been reduced. So much for global Britain!
In 2018, when Russian agents used a chemical weapon on the streets of Salisbury to attempt to murder Sergei and Yulia Skripal—a nerve agent that led to the death of Dawn Sturgess and affected her partner, Charlie Rowley—I led the action. I called on our friends and allies to stand alongside the United Kingdom, and I led the action that resulted in 29 countries expelling an unprecedented 153 Russian agents from their borders. We were able to do that because those countries had trust in the United Kingdom. Where will that trust be in the future if they see a United Kingdom willing to break its word and international law?
If we pass this Bill with clauses 41 to 45, and in so doing accede to the Government’s wish to break international law, I believe it will have a detrimental effect on people’s trust in the United Kingdom. As the United Kingdom negotiates trade deals around the rest of the world, why should anybody we are negotiating with believe that we will uphold what we sign up to in those agreements if we have said clearly, “If we don’t like it after we’ve signed up to it, we’ll break it”?
This is a country that upholds the rule of law. That is one of the things that makes us great; it is one of our characteristics. We propound and uphold the rule of law around the world. The Conservative party upholds the rule of law—it is one of our values and characteristics—yet we are being asked to tear up that principle and throw away that value. Why? I can only see, on the face of it, that it is because the Government did not really understand what they were signing up to when they signed the withdrawal agreement.
My right hon. and learned Friend the Member for Torridge and West Devon described the Government’s action as unconscionable. As has been said, Lord Keen resigned because he said that he found it increasingly difficult to reconcile his obligations as a Law Officer with the Government’s policy intentions. Frankly, I find it difficult to understand how any Minister can go through the Lobby to support these clauses.
I consider that, in introducing clauses 41 to 45, the Government are acting recklessly and irresponsibly, with no thought to the long-term impact on the United Kingdom’s standing in the world. It will lead to untold damage to the United Kingdom’s reputation and puts its future at risk. As a result, with regret I have to tell the Minister that I cannot support this Bill.
Sir William Cash
There are many essential reasons, in our national interest and on constitutional and legal grounds, and grounds of practical necessity, for the clear, unambiguous “notwithstanding” clauses in the Bill that have been discussed in the context of clauses 42 to 45.
I mentioned in response to my right hon. Friend the Member for Maidenhead (Mrs May) that this was a question not just of whether the Euro pot was calling the British kettle black, but of whether, in the United Kingdom, we had ourselves overridden clear treaties. There are too many—they are far too numerous—to mention in this short debate. Of course, there is also an enormous number of examples of international law breaches by foreign states—not only, in Europe, by member states but by the EU itself, egregiously. Furthermore, there are examples of other countries, every one of them democratically elected, having done so. This question of values and reputation, and the issues that have arisen, has to be weighed against that context.
Of course, there are many international treaties, and there are many aspects—
Sir William Cash
In a moment. There are many aspects of international law that are sacrosanct—those in respect of torture, genocide and the rest, for example—and it is the fact that international law comes in many shapes, sizes and degrees, as I am sure we all know.
Basically, the point is that where the sovereignty of a nation is involved—the Vienna convention addresses this question—and where we are at the highest end of where the national interest lies, other considerations come into play. It is absolutely clear that in many instances, democratically elected civilisations—countries—have themselves broken these treaties.
This Bill does not, in my view, breach international law, but our rule of law must be based on our Parliament making our laws for our people based on our sovereignty, not judges. Indeed, Parliament itself voted for section 38 of the European Union (Withdrawal Agreement) Act 2020, without a single vote or even a voice raised in opposition, as far as I am aware, in either House on Second Reading. That Bill passed its Second Reading by as many as 124 votes.
The famous Lord Bingham clearly demonstrated this in chapter 12 of his book, “The Rule of Law”. He said clearly, with respect to the fact that it is our Parliament, not judges, that makes laws for our people based on sovereignty, that he had come across a number of judgments that had breached that principle. Wise judges do not want to make political decisions. His unimpeachable principles turn on their head the exaggerated claims with respect to the breaking of international law that has not taken place.
As I said, the German Federal Constitutional Court stated in December 2015:
“International law leaves it to each state…to give precedence to national law”.
Laying a Bill is not a breach of international law and is privileged. If a treaty is entered into on the reasonable assumption that a state of affairs would exist, but that does not transpire, the treaty is voidable. The agreement was written on the basis of the EU recognising our sovereignty, which has not happened.
International law is broken by democratic countries throughout the world and the EU, in their own interests. The list is long, but I will give a few examples. Western Sahara is one case. Another is migrants sent back to north Africa and Turkey. In 2010, when the EU broke the Lisbon treaty, Madame Lagarde said,
“We violated all the rules”
about the Greek and Irish bail-outs. The EU is unilaterally changing the bilateral channel tunnel treaty without our being able to prevent it. The EU threatened to use the WTO’s most favoured nation principle against the UK contrary to state practice, core principles of world trade and requirements negotiated in good faith.
I have another stack of examples, which I mentioned, where UK statute has overridden international treaties. There is no argument about it; it is there in black and white in the treaties and in the sections of various enactments that have overtaken and overridden international law.
It is understandable that some are bothered about this to a degree, but the fact is—
Sir William Cash
I said, “to a degree”. Within the framework of international law, it is entirely a question of whether the degree to which it is done is commensurate with what is being proposed. The case of sovereignty goes to the heart of the extent to which we are entitled to take the action that we do.
This is less about breaking international law than about breaking the conditions in respect of state aid and in respect of the manner in which the Northern Ireland protocol would operate in the UK with respect to breaking the issues of contract and of the manner in which people work in this country. We are faced with a critical problem, the effect of which is that if we were not to pass these clear and unambiguous clauses, we would find that we were subjected to EU laws—that we were subjugated to them—in a way that would ensure that we would not be able to compete effectively throughout the world or support the workers of this country, particularly in the context of covid.
Section 38 was passed by every single person in this House and by the House of Lords. There is no doubt about that. The notwithstanding provision is inviolate; it is in an Act of Parliament. These enactments do the necessary job to ensure the future prosperity and competitiveness of this country, and the opportunity for its people to move forward in an enterprise society to enable future generations after Brexit to guarantee their jobs, their businesses and their future.
Gavin Robinson
It is a pleasure to follow the hon. Member for Stone (Sir William Cash), who has that classic flair of oratory, as when he said that some Members may be somewhat bothered to some degree. Whether we agree or disagree with him, he raises a smile through the Chamber.
I rise to speak in support of the amendments tabled by my party. Before I do, I want to reflect on the comments from the right hon. Member for Maidenhead (Mrs May). I regret some of the comments she made about the implications for relationships in Northern Ireland and the consequences associated with the Bill. Be it her contribution or many others on Wednesday and no doubt later today, there is an awful lot being said that is not only at cross purposes across the Chamber but completely misses the point. The right hon. Lady embarked on a political strategy that was encapsulated by the phrase “Brexit means Brexit”, and for nine months there was no greater clarity than that. Here we are four years later, and we know that what was outlined as a national aspiration and what was agreed to in a referendum by the people of this country is not being delivered for the people of Northern Ireland.
Members will remember the week in December 2017 when there was a flurry of activity around the formulation of what became the UK-EU joint report. They will also remember the work that had to go into getting provisions placed in that joint report at paragraph 50, which not only represented the principle that it was of no concern for the European Union to impede or impose upon the integrity of a member state, but stated:
“the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree… In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.”
That was in paragraph 50 of the joint report, but it was never honoured in the withdrawal agreement.
Sir Robert Neill
This has not been the most edifying spectacle for the House of Commons over the past few days, but I hope that, at the end of the day, we can find a constructive way forward. I say that it is not edifying because, although much of the purpose of the Bill is important and valuable, to act in contemplation of something that most of us would regard as unworthy—namely, to breach an international obligation—is not something that one should ever seek to discuss lightly. Equally, it is not something that can ever be an absolute, because there can be certain extreme and pressing circumstances where such a derogation is permissible, but the bar has to be a very high one. That is why the discussions that have taken place between some of us and the Government, and the Minister’s response, are important, as far as my thinking is concerned. On the face of it, as my right hon. Friend the Member for Maidenhead (Mrs May) observed, without safeguards and caveats, clauses 42, 43 and 45 would without more ado be unconscionable, and we could not support them.
I want also to speak to my amendment 4 and the Government’s amendment 66, which I hope will provide a means of reconciling that position with the need to find a constructive way forward.
Sir Robert Neill
If my hon. Friend will allow me to develop my point a little, I will of course give way to him in a moment.
Without a parliamentary lock, I do not believe that it will ever be appropriate for a sovereign Parliament to contemplate breaking an international obligation. There has to be a test for the parliamentary lock to be met. I welcome, therefore, the Minister’s comments on Government amendment 66 and the test that he has adopted—and that was previously put out by Downing Street—at the Dispatch Box in respect of the high bar that would have to be met before the House could or should be persuaded to support such a course of action. For me and, I suspect, many other Members, the bar would have to be a high one.
Sir William Cash
Does my hon Friend agree that that bar becomes very apparent when dealing with the essential question of sovereignty and whether the EU is recognising sovereignty in the negotiations in the way that was clearly stated in the protocol and in the essential elements of the agreement? We are sovereign and our constitution is special in that respect, compared with some other countries that have provisions in written constitutions.
Sir Robert Neill
Let me put it this way: if my hon. Friend is saying that the test is something akin to that in article 46 of the Vienna convention on the law of treaties, which permits a departure from an international obligation if the violation that causes it is
“manifest and concerned a rule of its internal law of fundamental importance”,
I am not a million miles away from him. It is not an exact analogy and I do not think my hon. Friend was trying to make one, but it would have to be something similarly fundamental.
From my point of view, one could conceive—I use my words carefully—that a Government might be able to persuade the House that there was such a threat to the position of Northern Ireland in the United Kingdom, and to the welfare of its economy and people, that one might take such a step. That is why, having thought and hesitated for some time, I am prepared to allow the Government the opportunity to make that case. None the less, it is a high bar, and I have to say that the fact that other jurisdictions—be it the EU or others—may have derogated from international treaties is not of itself persuasive. Many of us would need to be persuaded by the evidence that was brought in relation to the specific circumstances that might trigger the bringing into force of the three clauses under the arrangements set out in Government amendment 66. That is the point and will be the only test that will be relevant.
Joanna Cherry
I rise to speak in favour of amendments 43 and 44, in my name, and to support the amendments tabled by the Scottish National party, our friends from the SDLP and our friend from the Alliance party.
I will focus my comments on my amendments, which I tabled to work out just how far this Government are prepared to go in ousting the jurisdiction of the domestic courts in relation to judicial review and review under the Human Rights Act in clause 45, as it appears on the face of the Bill. I also wish to highlight, as I mentioned in an intervention on the Minister, that, in so far as clause 45 seeks to restrict judicial review in Scotland by circumscribing the supervisory jurisdiction of the Court of Session, this not only trespasses into devolved territory but may well breach another treaty: the treaty of Union between Scotland and England, article 19 of which preserves the independence of the Scottish legal system.
Before I address my amendments in detail, for the avoidance of doubt, my primary position—and I find myself curiously on the same ground as the right hon. Member for Maidenhead (Mrs May)—is that clauses 41 to 45 should not stand part of the Bill. Everything we heard from the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith) was designed to hide from us the fact that we are talking about a bilateral treaty that was entered into by the Prime Minister and the United Kingdom less than a year ago, to deal with a specific situation that arose between the United Kingdom and the European Union; and the most controversial part of that treaty—the one dealing with Northern Ireland and the north of Ireland—is the one that this Government are seeking to drive a coach and horses through. That is what we are talking about, and that is what is so wrong.
Joanna Cherry
I will make some progress.
Such excuses as those that the Government’s Law Officers who remain in post have sought to make for this do not stand up. I am very proud, as a member of the Scottish Bar, that Lord Keen of Elie resigned last week, and I am proud of the reasons he gave for his resignation. The only thing I would say to him is, “What took you so long, Richard?”, but apart from that I am very proud. I think it will be very difficult for the British Government to find anybody of suitable seniority from the Scottish Bar to step into his shoes, but I am waiting with some amusement to see who they might find.
Joanna Cherry
No, I am going to make some progress.
It is what we would call at the Scottish Bar a load of old mince. That is not just my view; as I said in an intervention, it is the view of the United Kingdom Supreme Court, which said in the first Miller case, at paragraph 55, that
“treaties between sovereign states have effect in international law and are not governed by the domestic law of any state.”
I am terribly sorry to disappoint Conservative Members, but no matter how much they love their doctrine of parliamentary sovereignty—no matter how much it means to them—it cannot trump the obligations freely entered into by their Government under international law.
Joanna Cherry
No, I am not going to give way.
It simply does not work that way: Britannia does not rule the waves any longer and has not done so for some time.
I regret to say that while I have the greatest respect and the highest regard for the hon. Member for Bromley and Chislehurst (Sir Robert Neill), the Government amendment that his efforts have secured is wholly inadequate to meet both domestic and international concerns about this Bill. I cannot do much better than repeat what the Irish Foreign Minister said this afternoon: a Government with an 80-seat majority having a parliamentary lock is not much of a reassurance to any of us. I really do not think I need to say any more than that. Once more, we have a ruse to solve the problems of the Conservative party rather than a ruse to address our international legal obligations.
My amendments 43 and 44, as I said, seek to deal with clause 45. The English Bar Council and the Law Society of England and Wales have said of clause 45 that it
“would exclude judicial review of any regulations made under clauses 42 and 43 on grounds of incompatibility with domestic law…as well as international law.”
That exclusion of judicial review would also mean excluding any human rights review under the Human Rights Act or, indeed, the Equality Act 2010. As my hon. Friend the Member for Belfast South (Claire Hanna) said in her very eloquent speech, human rights are of course integral to the Good Friday agreement. It is a travesty that regulations made under clauses 42 and 43 should not be subject to judicial review or to human rights review across Great Britain, but a particular travesty in Northern Ireland. It undermines not just the principle of the rule of law but the principle of access to justice. It also contravenes article 4 of the withdrawal agreement, which the British Government freely signed up to, in which they undertook to ensure a right for individuals to rely directly on withdrawal agreement provisions.
It is difficult to be certain how the courts would interpret an ouster clause such as clause 45, but precedent suggests that it would be quite hard for them to uphold it unless it is expressed in unequivocal terms. My amendments seek to clear this up. Amendment 43 would exclude the Human Rights Act and the European convention on human rights from the definition of domestic and international law, and amendment 44 would ensure that
“nothing in Clause 45 ousts the jurisdiction of domestic courts in respect of judicial review of regulations made under Clauses 42 and 43.”
Subsequent to my tabling those amendments, the Government tabled amendments 64 and 65, which appear to acknowledge that judicial review claims could still be brought in certain limited circumstances. I am interested to hear from the Minister what those circumstances would be. Do they include the normal judicial review grounds of illegality, irrationality or procedural impropriety, or will they also include review on the grounds of human rights? I look forward to hearing from him on that.
My final point is the most important point from a Scottish point of view. In so far as clause 45 seeks to interfere with judicial review in Scotland, it is interfering with a rather different beast from judicial review in England: the inherent supervisory jurisdiction of the Court of Session in Edinburgh. In doing that, it strays into devolved territory and would therefore require a legislative consent motion, which I very much doubt would be forthcoming. Put simply, the Scottish Parliament is not in the business of ousting the court’s jurisdiction on judicial review or human rights grounds—nor should it be and neither should this Parliament.
Most importantly from a Scottish point of view, the supervisory jurisdiction of the Court of Session is an inherent jurisdiction, which is not conferred on it by legislation but has been there since its inception in 1532. It therefore predates the treaty of Union between Scotland and England in 1707. Legislation seeking to narrow the scope of that inherent jurisdiction risks falling foul of article 19 of the treaty of Union, which preserves the independence of Scotland’s legal system.
In Scotland, rather to our surprise, we learned from the UK Supreme Court that putting the Sewel convention on a legal footing did not protect us from the Government driving a coach and horses through it. As the legal position stands in the United Kingdom, it seems that the Government can get away with passing primary legislation that interferes in devolved matters without a legislative consent motion. A breach of article 19 of the treaty of Union might be a different matter, however, because the question of whether parts of the treaty are so fundamental that they cannot be overridden by an Act of this Parliament has been considered by courts north and south of the border, but never entirely resolved.
I simply remind Members that the doctrine of the supremacy of Parliament is an English doctrine. Even Dicey, the great high priest of parliamentary sovereignty, was prepared to recognise that those who framed the treaty of Union between Scotland and England believed in the possibility of creating an absolute sovereign legislature that was still bound by certain unalterable laws. Many of us in Scotland believe that one of the unalterable laws of the treaty of Union is that this Parliament cannot interfere with the inherent jurisdiction of the Court of Session.
Both those problems—the in-roads into the devolved competence and the undermining of article 19 of the treaty of Union—will continue, notwithstanding Government amendments 64 and 65. I suspect that the Government have not really thought about that because, let us be honest, they do not often think about the impact on Scotland of what they want to do. Many people in Scotland, including my fellow members of the legal profession, will see that as another example of the Government’s total disregard for devolution and for Scotland’s separate and distinct institutions.
That is yet another reason why for Scotland the only way out of the mess that the Conservative and Unionist party has created over Europe is independence. I am glad that so many more people in Scotland are realising that daily. [Interruption.] It is a terrible dreadful bore for Conservative Members, but I remind them that we spend an awful lot of time listening to them bang on about the European Union and how it prevents them from having their way. Well, the Scots are pretty sick of this Parliament preventing Scotland from having its way.
European Union (Withdrawal Agreement) Bill
William Cash ExcerptsWednesday 8th January 2020
(4 years, 3 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 8 January 2020 - (8 Jan 2020)
Sir William Cash (Stone) (Con)
When dealing with issues of interpretation of European law in the context of our own previous methods of judicial interpretation, those of us who are familiar with Maxwell as compared to Craies know what the differences are. Does my hon. Friend believe that we should be moving towards the stare decisis system—in other words, a system based on precedent—rather than to purposive interpretation, which is the basis on which European law currently operates? Professor Richard Ekins of Oxford University and others are very conscious of that. He has written a very interesting paper.
Sir Robert Neill
It is indeed a very interesting paper. Having been brought up as a common lawyer myself, my preference is inevitably to move towards a stare decisis approach. I think that that is something that we all wish to move back to as we reconstruct our statute book and legal texts thereafter. My hon. Friend and I will be entirely in accord on that.
The question is really about the route that we choose to get there and ensuring that we have proper scrutiny of that route, because any deficiencies in regulations would likely result in a judicial review. That is another irony: I am sure that the Government would not want greater risk of judicial review of their actions than is absolutely necessary. It would be a funny Government who made work for lawyers in relation to judicial review. That might be interesting for some of us, but I am sure that it is not something that the Government wish to do. However, without more explanation as to why we are going down that route, that is the risk.
First, I suggest to the Minister that he should seriously consider whether we move to a “necessary” as opposed to “appropriate” test—an objective test—which is much more likely to withstand challenge in the courts, because it is more likely to be readily evidenced and, I would have thought therefore, to the Government’s advantage. If the Government get their ducks in a row early when making regulations and have evidence to back the objective test, they are much more likely to withstand legal challenge.
Secondly, the Government would be much less likely to face challenges and we would get better scrutiny if we moved—certainly for the majority of policy considerations —to using the affirmative rather than the negative procedure. That would perhaps be a fair balance in the House. We will not necessarily be able to do primary legislation for all of our withdrawal, because there is too much of it. Sensible use of secondary legislation, to remove references to the European Union or something of that kind, can of course be done by the negative procedure. When policy considerations are involved, however, the use of the affirmative procedure would be consistent with the Government’s objective of bringing back control to the House, and with the movement towards our traditional UK approach to legal matters. I hope that the Minister will say something about that when he responds.
Mr Walker
My right hon. Friend speaks with considerable experience and passion on these issues. Of course I agree with him, but what we want is a free trade agreement for the whole of the UK that addresses these issues and allows us the most frictionless access to our neighbours and good trade for all of us. For Northern Ireland, that would be an excellent result. We have to focus on the fact that this Bill is about the withdrawal agreement, and that includes the protocol. We need to take through the protocol to ratify the withdrawal agreement and move forward into that negotiation.
The Government are committed to maintaining the highest levels of transparency and scrutiny in relation to this Bill and to the implementation of the withdrawal agreement. We have been clear on that, but the exact form of accountability needs to be appropriately framed, so the Government cannot accept new clauses 53, 54 or 65, which would place an undue burden on the Government but not provide the transparency and scrutiny that they purport to achieve. It is no surprise that the Opposition, through amendment 1, seek to place hurdles in the way of our exit, but the result of the general election across the United Kingdom shows that they lack the mandate to do so and that we have a clear mandate to proceed. We should do so without the hurdles that the previous Parliament consistently threw in the way of progress.
Sir William Cash
I wish to ask my hon. Friend to reflect on one point. Under this Bill, the European Scrutiny Committee, both in the Commons and the Lords, will have the power to examine certain matters. I know that he knows about that, but there is also the question of interpretation, which comes up in this set of proposals. I wish to reinforce the exchange that I had with my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), which is that clause 5 has not been addressed, and that reaffirms the supremacy of EU law before exit day. We need to keep an eye on the question of the quashing and disapplication of Acts of Parliament as we proceed.
Thangam Debbonaire
Regulations that would have been discussed either in the European Parliament or the Council of Ministers, and those people are also elected and have been for decades. Members have been elected to the European Parliament since 1979. I know that, as I am sure Conservative Members do, because I have campaigned for those Members in elections.
Sir William Cash
The hon. Lady just referred to the Council of Ministers. Would she deny for a minute, as is well understood by everybody else, that decisions are taken in the Council of Ministers by a majority vote of other countries behind closed doors and without a transcript? They are therefore not democratic. How can she talk about people being elected when the decisions are actually taken in that manner?
Thangam Debbonaire
The last time I looked, most—although admittedly not all—of the Government’s Ministers were democratically elected. We participated in the creation of the rules of that Council. I am going to skip ahead in my speech and then come back again, because I wish to remind Conservative Members that it was, for instance, a Tory Government who took us into the single market, with all its rules. They rightly recognised the benefits of the shared rules of a single market. They recognised that they were worth it and that they did not compromise our sovereignty.
The Parliamentary Under-Secretary of State for Exiting the European Union (James Duddridge)
Parliament is sovereign, was sovereign and will be sovereign, and the clause recognises that fundamental principle in our constitutional arrangement, which is of great significance to many hon. Members. Membership of the European Union has felt as though we have ceded control. We cannot pull back sovereignty piece by piece—Conservative Back Benchers mentioned a number of examples. Anybody who has sat on a delegated legislation Committee will have been told by the Minister, “We cannot change this because it has gone through the European processes and we have to rubber stamp it.” The presumption was that we were full members, and that was made worse by qualified majority voting; previously, we had the ability to come back to each individual matter.
Sir William Cash
A very simple example of what my hon. Friend mentions is the EU’s port services regulation, which was opposed by every trade union, by the Government and by every one of the 47 port employers but went through this House simply because it had been passed by a majority vote in the Council of Ministers. That regulation was imposed upon us by the abdication of our sovereignty under section 2 of the European Communities Act 1972.
James Duddridge
My hon. Friend is right. We could not do anything about that law or any other specific issue without coming out of the European Union, taking back control and asserting our sovereignty. Clause 38 reaffirms that sovereignty going forward and, crucially, during the implementation period.
James Duddridge
Yes. Clause 38 not only restates the historical position but reasserts our sovereignty during the implementation period. Parliament will be given extra powers, such as the powers being taken by the European Scrutiny Committee, which is important because we will not be participants in the decision-making process.
Sir William Cash
In a nutshell, laws are democratic when they are made in line with a manifesto following a general election. The bottom line, therefore, is that decisions taken by the European Scrutiny Committee on vital national interests will also go through departmental Select Committees, and then there will be a vote on the Floor of the House. That means this House will decide whether it wants to obey a legislative arrangement that has come out of the European Union, which is completely different from anything that happened since 1972.
James Duddridge
I thank the Chair of the European Scrutiny Committee. As he knows, the powers will also extend to the House of Lords, allowing for an additional check.
Dr Whitford
Clause 38 addresses parliamentary sovereignty. Independent reviews of the clause, including by the Library and the Institute for Government, point out how completely meaningless it is. It purely states something without giving it any power. It has no power in law, yet throughout this Bill, sweeping delegated powers are being taken from this Parliament to the Executive. The Government have just voted against limiting those powers in the standard way that they were limited in the 2018 withdrawal Act to protect things such as the Human Rights Act, the Government of Wales Act, the Scotland Act and the Northern Ireland Act. The Parliamentary Under-Secretary of State for Northern Ireland, who was at the Dispatch Box for the previous group of amendments, could not explain why the Government felt that they could not accept such limitations. That is where the concern comes, particularly on clause 21. There is no sunset clause—there is no limit. This plan to rebalance powers between the Executive, Parliament and the courts was in the Tory manifesto, and we literally see it coming to life inside this Bill.
The Minister mentioned clause 5, which gives the withdrawal agreement supremacy over all domestic law. It will not allow parliamentary scrutiny of any of the changes that result from that. These sweeping, broad-brush powers are concerning people. In particular, the removal of clause 31 of the original withdrawal agreement Bill in its entirety means that Parliament has no voice, no influence and no ability to set the terms or aims of the future relationship, which goes way beyond any trade deal. Such actions are making people afraid of what is going on. Furthermore, we have not heard any good argument from the Government as to why Parliament is suddenly being excluded in this way.
It is bizarre now to take this stance of “The lady doth protest too much” and, “Oh, we all believe in parliamentary sovereignty.” In actual fact, what we see is a complete undermining of the sovereignty of this Parliament. We also see an undermining of the sovereignty of the other three Parliaments in the United Kingdom. The devolved Governments are being undermined. They also will have no influence over the future relationship. They are also having to face delegated powers being taken from them, so that the Government can legislate on devolved areas even without the involvement of devolved Ministers. Twenty years after devolution, this is seen as an absolute power grab and an absolute attack on the devolved Parliaments of the United Kingdom.
In amendment 9, we specifically talk about an economic impact assessment. There has not been one since 2018—and that was on the Chequers agreement. Frankly, having read the Chequers agreement, which many Members on the Government Benches, including the Prime Minister, did not support, I can say that it was a complete cake-and-eat-it agreement. Frankly, it was never an agreement; it was just a wish list that had no chance of happening. There has been no economic impact assessment since then, and certainly no economic impact assessment of what this Bill will do.
We have heard all the representatives of Northern Ireland coming together across the divide of the communities to ask for regular economic impact assessments on what this Bill does to Northern Ireland. As someone from a coastal, west of Scotland constituency, let me point out that we will be looking across at Northern Ireland, which will be sitting in the single market. Fishermen in my constituency are talking about losing their businesses or having to register in Northern Ireland to try to compete. Our farmers will face delays at ports and may face tariffs. They will certainly face huge bureaucracy that farmers in Northern Ireland will not face. I have two big just-in-time industries in my constituency: aerospace and pharmaceuticals. How are we going to keep those industries, let alone attract other businesses? They will look at Ayrshire and they will look at Northern Ireland; one is in the single market and one is not. I am sorry, but the idea that the economic assessment that was done on the Chequers deal would count for this deal and this Bill is frankly complete nonsense.
When this Government talk about their precious Union, it is important that they respect the devolved Governments, who are being given no locus in the future relationship. The fact that the Scottish Parliament will be voting on withholding a legislative consent motion for this legislation was dismissed as irrelevant by the Prime Minister himself at the Dispatch Box before Christmas. If it is so important to Members on the Tory Benches to preserve their precious Union, may I suggest that it is a bit like a marriage? Imagine turning around and saying to the missus, “Tough, I won’t give you a divorce”, “Tough, I don’t want to listen to you”, or “Shut up, because I’m in charge.” Imagine saying things like, “Yeah, give me half your wages” and “You can’t leave me, because I bought a big 4x4 and now we have an overdraft.” That is what the relationship looks like from Scotland.
As the former Prime Minister and the Attorney General both pointed out, it is not possible to maintain a union of nations that is not voluntary and that countries do not wish to be a part of. That has repeatedly been put forward as a Brexit argument. You will not keep Scotland in your precious Union with the utter disrespect that is being shown for her Government, her people and how her people voted. The Scottish National party is the party that people voted for, so repeatedly saying that the people of Scotland “don’t want this” and “don’t want that” is nonsense. If Government Members believe in democracy, they should be respecting not just the Scottish Government, but the Scottish Parliament. They cannot ride roughshod with delegated powers over the devolved Governments of Northern Ireland, Wales and Scotland. It will certainly not protect their precious Union.
Sir William Cash
The hon. Member for Bristol West (Thangam Debbonaire) said, “What is this sovereignty?” It is terribly simple; it is the ability to make our own laws in our own Parliament, in accordance with the electoral decisions taken by the people in line with a manifesto and with their constitutional arrangements, which have been in place for many generations. It is this for which people fought and died in world wars. The very simple reality is that sovereignty is about whether or not we can govern ourselves.
My rebellion against the Maastricht treaty was based on the simple proposition that that treaty created European government. In 1971, we entered into arrangements—then enacted through the European Communities Act 1972—on the basis of a White Paper that said we would never give up the veto under any circumstances, and furthermore that to do so would be not only against our own national interest, but contrary to the fabric of the European Community itself. Believe it or not, it was understood in Government circles at that time that the veto enabled us to retain the actuality and reality of the ability to make our own laws. Gradually, over the next 30 or 40 years, that veto was whittled away to extinction, and the processes that I have to deal with day in, day out in the European Scrutiny Committee—and have been doing so since I first went on the Committee in 1985—have demonstrated to me that, in fact, we have not been governing ourselves. That is why I entered into opposition to the Maastricht treaty and then to Nice, Amsterdam and ultimately Lisbon. The reality of what has been happening is that the individuals who sit on these green Benches have simply had their ability to make the laws that they are entitled to make on behalf of the people who vote for them reduced to rubble.
In return, we have been faced with an increasingly dysfunctional European Union that did not work in the interests of the British people, and that is why we got the result we did in the referendum. It was the people who voted. Interestingly, when the decision was taken to hold the referendum, it was decided by six to one in the House of Commons. We voluntarily agreed that we would abdicate our right as Members of Parliament and let the people of this country make that decision on their own behalf. All the resistance we have seen over the past three years from the Opposition Benches and from a number of our recalcitrant colleagues, many of whom are no longer in the House, was based on a complete failure to understand that the decisions that were taken in that referendum were authorised by Parliament and, indeed, by themselves.
Section 1 of the European Union (Withdrawal) Act 2018—I did the first draft of the Bill, which was accepted by the Government—said that the European Communities Act 1972 would be repealed on exit day. That is now in fact implementation period day, but for practical purposes it comes to the same thing. The Opposition religiously—or irreligiously, depending on how one cares to put it—decided that they would oppose that Bill in principle, as they did on Second Reading and on Third Reading. Every single Conservative, even my recalcitrant colleagues—even Kenneth Clarke—voted for the withdrawal Act on Third Reading, but the Opposition denied not only the sovereignty that was being restored by the repeal of the ’72 Act but the democracy that went with it. That is a fundamental issue. They destroyed their credibility with the British people, and I believe that the ordinary man in the street—the people who voted in the last general election—understood that.
I have already made the point that European laws are made behind closed doors by a majority vote. Nobody can say that the decisions that were taken, which we had to accept because we had no alternative, were laws made by our elected representatives. I have never heard such trash coming from a Front Bench as the suggestion that the fact that these people happen to be elected Members of Parliament in the Council of Ministers conferred upon them some form of democratic right to decide.
Sir Iain Duncan Smith
My hon. Friend is making absolutely the right case about sovereignty. I mentioned Van Gend en Loos and Costa v. ENEL. The point about those two cases is that they were judicial statements. One was about direct effect and the other was about the whole idea that European law had supremacy. They were never voted on in this House. Nobody agreed to them. Nobody said, “This is what we wanted.” That led to something quite interesting—the imposition of the extension of welfare payments to EU migrants who came here was the result of a judicial review of something that we had never voted for, and it cost us a lot of money.
Sir William Cash
That is a very good point. Those cases happened before we came into the European Union, and they invade the very concept of the constitutionality of this country and of other countries too, because they say that we are obliged to obey not just any law, not just all laws, but even constitutional laws. That is the point. It is an utter invasion. It is a complete and total destruction of the decision of people through the ballot box in general elections. That is the problem. Sovereignty and democracy are intertwined at the heart of our constitutional system. The hon. Member for Bristol West ought to reflect on the rather absurd propositions in her speech, because she cannot prove a single point that she made.
Mr Paterson
A key function of Members sent here—the earlier Parliaments were in Shropshire, of course; it is a regrettable tendency that we have had them in Westminster for the last few hundred years—is that we pass supply, vote funds and are responsible for moneys raised from our constituents. “No taxation without representation” is fundamental. The current rules are in complete breach of that. It is worth reading the National Audit Office report which says that between 2005 and 2015, the EU demanded £642 million back because of the unsatisfactory manner in which the last Labour Government introduced CAP reform. There was absolutely nothing that a single Member of Parliament could do by voting here to stop that money being demanded from the UK Government.
Sir William Cash
In conclusion, I will simply say that I entirely endorse what my right hon. Friend has said, as indeed I endorse what my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) said. The bottom line is that our passing of the withdrawal Act, in conjunction with the general election that we have just won, gives us back the opportunity to make laws on behalf of the people of this country in a democratic, constitutional arrangement of such importance that I believe it will go down as a historic moment when the Bill’s Third Reading is passed tomorrow.
Stephen Farry
I rise primarily to address amendment 35 in my name and its intersection with clause 38. I do not intend to press it to a Division, but I want to highlight some of the issues that arise from it.
More generally, on the point of parliamentary sovereignty, I want to make a couple of comments, as other Members have, about the irony with respect to the level of delegated powers that the Bill will create, as well as the lack of scrutiny of the future relationship, which is of particular importance to us in Northern Ireland but also, of course, for all colleagues across the United Kingdom. The Northern Ireland/Ireland protocol, which is of such importance to us in Northern Ireland and has almost bedevilled the process of Brexit for many years, was only in effect programmed for two hours today. Many of the Northern Ireland voices were not properly articulated on that.
The concern of my amendment is the rights protections under the Good Friday agreement. The Good Friday agreement is, of course, an international agreement, but its implementation in domestic law falls to the UK Government. The agreement sets out a comprehensive set of rights, including the political participation of women, the right to freely choose one’s residence, freedom from sectarian harassment, a statutory equality duty and, perhaps most significantly, the requirement for the incorporation of the European convention on human rights into UK domestic law.
Most of the debate in Northern Ireland and beyond around Brexit, as it pertains to our situation, has focused on issues around borders, including the business community, the economy, trade and what the future holds in that regard. But people are also deeply concerned about rights issues, for a whole range of reasons. Article 2(1) of the protocol on Northern Ireland/Ireland provides a commitment that there will be
“no diminution of rights, safeguards or equality of opportunity”.
That is very much welcome, but we have seen a gradual weakening of the level of commitment to rights protections since the original draft of the joint report in December 2017. The European Union is very clear that it falls to the United Kingdom Government to ensure that the rights under the Good Friday agreement are protected as part of the future relationship.
The specific concern that I am trying to raise through amendment 35 is that there seems to be an inconsistency between section 7A of the European Union (Withdrawal) Act 2018 and clause 38 of the Bill, which is the focus of this section of our debate. Clause 38 stresses parliamentary sovereignty notwithstanding section 7A, which is used to give some degree of reassurance that there will not be any threat to rights, but there is the potential that section 7A could be overridden in some shape or form. There are several reasons why we have some concern in this respect. First, not all Good Friday agreement rights relate to the European convention itself; some are broader than what the convention contains. Some of the proposed legislative commitments apply only to Northern Ireland Departments and public bodies, and do not extend as far as the UK Government themselves, and in that there may well be some potential danger.
There are also concerns about whether the UK Government have, to date, fully respected some of the rights under the Good Friday agreement. As Members will appreciate, identity is a very complex issue across these islands, but it has been managed to date through a number of different forms—for example, the common travel area; more recently, the Good Friday agreement; and hitherto, of course, the joint membership of the European Union by the United Kingdom and the Republic of Ireland. Up until now, both jurisdictions have moved in tandem on issues involving the European Union, including on matters such as the Schengen agreement, which the Republic of Ireland has also opted out of. We are now faced with the fact that, for the first time ever, we are going to see the UK and Ireland move in different directions in terms of the European Union. That may well throw up a whole range of issues, challenges and anomalies that will need to be managed successfully.
Brexit strips away a lot of those protections, and perhaps does create a certain degree of risk. If I may, I will take one example in that regard. Members may well be aware of the Emma DeSouza case regarding immigration. It drew attention to the fact that the UK Government have not reflected in UK domestic law, particularly in relation to revision of the British Nationality Act 1981, the right of someone born and resident in Northern Ireland to identify solely as Irish, and to have Irish citizenship. What the law currently says is that anyone born in Northern Ireland is, by birth, automatically British, and to many that goes against both the letter and the spirit of the Good Friday agreement.
As long as that case, and indeed other situations, go unresolved there is a latent fear of these anomalies persisting and, indeed, potentially growing, particularly if there is greater divergence between the UK and the rest of the European Union, including the Republic of Ireland in particular. That has implications for what is a very complex situation, which has been managed by the Good Friday agreement—on a faltering basis over the past 20 years, but none the less managed—and we may well be in very difficult and rocky territory. It is important that the Government reflect on some of the fears that are being expressed in Northern Ireland. Although I am not going to press the amendment today, I think it is important that the Government reflect on the matter.