European Union (Withdrawal) (No. 5) Bill

Debate between William Cash and Peter Grant

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 3rd April 2019 Commons Chamber

[Sir William Cash]

That is a very good question, because it may well be after exit day—on my proposals. That is the point. I am proposing amendments intended to provide that democratic element, which is needed by the people of Northern Ireland, Scotland and Wales.

[Peter Grant (Glenrothes) (SNP)]

I am grateful to the hon. Gentleman for being so clear about what is in Scotland’s best interest. Will he remind us as to whether he supported the need for a legislative consent motion or for the consent of the Scottish Parliament before the European Union Referendum Bill was passed, before the article 50 Act was passed or before last year’s great repeal Bill, all of which he supported? It seems to me that he supported an awful lot of EU-related legislation that has been extremely damaging to Scotland, not caring a jot as to what the Scottish Parliament or the other devolved institutions thought about it. Why is it that he now suddenly wants to invoke the right of the Scottish Parliament to be consulted, given that he and his party have trampled over that right ever since the Brexit referendum was thought of?

[Sir William Cash]

I want to make some trouble. The people of Wales, Scotland and Northern Ireland might well have strong interest in the extent to which they are involved in this process. My amendment is a means to provide them with that opportunity. I will not contradict what the hon. Gentleman says. Under our constitutional settlement, there is a Scottish Parliament, a Northern Ireland Assembly and a National Assembly for Wales, so I would have thought that they will be extremely interested to know whether they were being cut out of the process prescribed in the Bill. It is not my fault that the Government made proposals and had all the joint committees that the various leaders of the devolved Assemblies complained that they had not been properly involved in. I am giving them a chance to be involved. He may be right about the legislative consent point, but I am right to think that in relation to this crazy Bill it would at least be useful for the people of Northern Ireland, Scotland and Wales to be able to make their contributions in their devolved legislatures. I think that point is worth making, and I therefore intend to press amendment 6 to a vote. Of all the amendments I tabled, that is the one that I want to move most.

Legislating for the Withdrawal Agreement

Debate between William Cash and Peter Grant

Monday 10th September 2018 Commons Chamber

[Sir William Cash]

That is completely true. I am very concerned about the suggestion that the Chequers proposals somehow or other end up creating more certainty—it is just not the case.

[Peter Grant]

When I was in the Netherlands with the Exiting the European Union Committee a few months ago, we had the opportunity to meet members of the Dutch Parliament’s equivalent committee. Halfway through that meeting, we had to stop because the Dutch Members were called to a vote. The Dutch Parliament had an absolute, binding vote on how its fisheries Minister would conduct himself or herself at an EU Fisheries Council vote later that week. The equivalent process in the United Kingdom is that the European Scrutiny Committee expresses a view, and then the Minister ignores it and does what he or she likes, and nobody can touch a Minister as a result. Is not it the case that the reason why so much EU legislation appears to be done over the heads of the people in the United Kingdom is because it is done over the heads of those in this Parliament? Other EU countries have much better parliamentary oversight of what their Ministers are up to than the United Kingdom.

[Sir William Cash]

I am bound to say that the system in this House involved much more transparency. For example, we do not have decisions taken by Parliaments that are determined by proportional representation. We do not have a system under which there are no transcripts of the proceedings. In this House, the Bills that go through Parliament set out all the provisions, and all legislation is subject to amendment by both Houses. Everything is printed. Hansard is available. Proceedings are filmed and shown on the parliamentary channel. People know where and how decisions are taken. The proposed joint committee will be no more than a consultative operation, and that does not mean that anything will come out of it.

A letter from the Secretary of State was put before my Committee on 5 September—more or less as we sat down that morning—regarding the discussions that we were going to have with Mr Olly Robbins and the Secretary of State. The letter says that there will be a

“working assumption that we would continue with the current model for providing written evidence to the committees through Explanatory Memoranda”.

My Committee is quite clear that that will not be anything like early enough. We want to know that we are going to get an explanatory memorandum at a very early stage. With regard to the scrutiny of the EU’s legislative proposals during the proposed joint committee procedure, the Secretary of State goes on to say:

“we will work closely with Parliament to agree upon a scrutiny system which, in the first instance, facilitates Parliament’s role in scrutinising EU proposals that may affect the UK during the implementation period.”

There is nothing, of course, about the fact that the process will go on afterwards. This is a pig in poke. We do not know what the scrutiny system will be, but we are being asked to approve it. Today’s debate is just a foretaste of what is to come. Working closely with Parliament to agree a scrutiny system but not actually telling us how the joint committee will work in practice is absolutely fundamental in this debate.

In the letter, the Secretary of State goes on to say:

“Given the way the EU’s legislative process works, most Council directives and regulations which will come into force during the implementation period have already been agreed or are being negotiated now, while the UK is still a Member State.”

Now, I know that the Minister referred to that point in her opening statement but, unfortunately, this does not deal with changes to the rulebook.

Let us suppose that it is the case that the 27 member states—with us not even at the table—will be able to make changes themselves and then effectively impose them on us, and that we are going to have a committee system. That system has not yet been agreed with us, and the details of it are extremely obscure but involve no more than consultation. If that is the case, when the negotiation of treaty obligations has been completed and we have entered into international obligations, which is what this will amount to, how on earth are we supposed to accept it when we—or the Committee or Committees scrutinising those questions—are then told, “Oh, this has all been agreed by international obligation behind closed doors”? We will have accepted the fact that that something will happen, but we will not actually be in a position to do anything about it at all. We are not merely buying a pig in a poke; we are also being bound and shackled by European law, and I have not even touched on the question of the arbitration arrangement.

Although I am in favour of arbitration in principle, the real question is whether it will be subject to European Court of Justice interpretation. I do not have time to go into all that today, but I simply put it on the table that that is a really serious problem. I know that the matter is currently under discussion, but it looks very much as if we will be buying into a reshackling of our Parliament and our businesses. The certainty that is being offered would be absolutely catastrophic if, in fact, the process went wrong and rules were imposed on us. That is what I am most concerned about in this context.

As for the parliamentary lock, the Prime Minister herself, in a pamphlet published by Politeia in 2007, was very explicit about the failures of the European system of oversight in the UK Parliament. Anyone can read it for themselves. All I am saying is that it is absolutely catastrophic. I have been on the European Scrutiny Committee for 33 years, and not once in all that time—and certainly not at any time before that—has Parliament ever overturned an EU decision that has been taken in the Council of Ministers. What confidence could we possibly have that that would ever happen, particularly as the Prime Minister said herself in her pamphlet that parliamentary sovereignty in this context was a fiction?

It is all very well to fall back on the concept that under our constitution we have the power to overturn legislative arrangements by Act of Parliament—that no Parliament can bind its successors and the rest of it. However, if, in practice, as with the European Communities Act in the first place, we voluntarily agree that we are going to accept what is being done, that situation is made worse by the context—a referendum in which the British people agreed by common consent that we will leave the European Union, with the Government accepting that; and the fact that the European Union Referendum Act 2015 was passed by Members of the House of Commons by six to one and the withdrawal Act was passed by 499 to 120, or whatever it was. It is crystal clear that we should be in control of making of our own legislation on our own terms, not supplicants to the European Union.

What this is all about is that we are supplicants to the European Union, and I put that to the Secretary of State and Mr Olly Robbins. We are going to the European Union and saying, “What is it that you are prepared to give us?” And that is just not good enough. I say that because, apart from anything else, under this White Paper, the scrutiny process—during the implementation period and even afterwards—leaves us extremely exposed. That is the problem. It leaves us in a position whereby we are effectively engaging in a form of legal re-entry into the European Communities Act 1972. I do not believe—I have to say this in all candour—that the Government did not know that. I believe that they did know it, unequivocally, before the repeal of the ’72 Act was passed via the withdrawal Act’s Royal Assent. No one is going to kid me that the White Paper, which was produced 14 days later, did not get written in anticipation that we were going to repeal the ’72 Act through section 1 of the withdrawal Act at the end of June but then end up undermining that repeal within a matter of 14 days. I find that absolutely extraordinary. It was Chequers that did it. Up until Chequers, I was 100% behind the Government. Chequers ended up undermining the basis of the collective responsibility, as I understand it, of members of the Cabinet, because they did not know about that either.

I come back to the simple point: this is an unacceptable arrangement. We do not know how the joint committee will operate. We have no confidence whatever that it is going to be more than a mere consultation, and what is COREPER going to be doing about all this in the meantime?

There is much more that I could say, but others want to speak. I regard this as a very, very serious breach of trust. I am afraid that that is the basis on which I approach this debate. I think that a lot of people outside—the punters; the real people of this country—know and understand this. We decided on 23 June 2016 that we would leave the European Union. We did not agree that we were going to come back with some form of legal re-entry to satisfy the whims of the European Union, and particularly the country that dominates it most—namely, Germany.

--- Later in debate ---

[Sir William Cash]

Of course, there is a simple reason for that. First, Germany calls all the shots in the European Union; and secondly, it hides behind the euro currency and therefore has an enormous trade advantage, as Mr Trump has identified. That is demonstrated by Office for National Statistics figures that show that we run a deficit with the EU27 member states of about £80 billion, and Germany has a surplus of £104 billion a year.

[Peter Grant]

An alternative explanation might be that Germany has had a succession of Governments who actually believe in investing in the long-term stability and sustainability of its economy, whereas the United Kingdom, for decades, has not had Governments with the ambition, the imagination or the long-term vision to do so.

In answer to a question from an Opposition Member about the 65 trade deals that we are currently party to, thanks to our membership of the European Union, the Minister suggested that the European Union has already agreed that all those 65 deals will be extended to a non-EU member after we have left. Well, the European Union might have agreed to do that. However, it does not have the right to do it unilaterally, because every one of those 65 deals has got somebody on the other side of the table, so the second signatories to all those 65 deals will have to be asked if they agree as well. Some of them will agree, but if any one of the 65 says no, we are immediately in a worse bidding position than we are as part of the European Union. Anyone who suggests that we can replicate all those 65 trade deals by March 2019 or December 2020, or at any time when most of us are still active in politics, is being wildly optimistic. It is almost as ridiculous as suggesting that these negotiations will be the easiest trade deals in history and it will be all done and dusted within six months.

We hear all the platitudes from the Government. The latest buzzword is “broadly”. It used to be that EU nationals living in the UK would have “approximately” the same rights as they currently have; now they are to have “broadly” the same rights as they currently have. I do not want them to have broadly the same rights; I want them to have exactly the same rights. In fact, I want them to have at least the same rights, because in some areas they should have more rights than they have just now. The Minister did not give way when I wanted to ask a question earlier, so I hope that her colleague will tell us explicitly, without any prevarication, what the Government mean when they continue to say “broadly” the same rights. Will he give us the specific areas in which EU citizens currently living in the UK will have fewer rights after we leave the EU than they have just now? These people are entitled to know which of their rights they will lose that are being hidden behind the word “broadly”, which the Government have started using all the time.

There has been mention of the question of the Irish border. Like other speakers, I find it astonishing that the only way that some people, including a growing number on the Government’s hard Brexit side, can reconcile what is happening is just to pretend that the problem does not exist. We are told that people are using false concerns about the Irish border to play out some kind of clandestine political agenda.

I remind Members about a couple of things that this Government willingly signed up to in December last year, as part of the joint report with the European Union—namely, that the United Kingdom will accept in all regards that the Republic of Ireland will continue to be a full and integral member of the European Union for as long as the Republic of Ireland wants to and that the United Kingdom will accept that the Republic of Ireland will and must comply with all aspects of European Union law. The United Kingdom has already committed itself to accepting that the Republic of Ireland is bound by European law as it applies to the enforcement or the observance of the European Union’s external borders.

The Republic of Ireland would love to get an agreement endorsed by the rest of the European Union that allows the border to be kept as it is now. The Republic of Ireland does not have the option of doing what so many Government Members blithely suggest, which is to sweep aside EU border legislation unilaterally, by keeping an open and uncontrolled border, contrary to European law and contrary to the commitments that this Government have already made. Let us have no more of this nonsense of trying to blame the Republic of Ireland for a mess that has been wholly created by the UK Government. Let us have no more of this nonsense of saying that somehow the European Union is usurping British sovereignty over Northern Ireland by trying to force a backstop agreement that the Government do not want.

As I said in an earlier intervention, the UK Government undertook in December last year to bring forward specific proposals for a solution to the question of the Irish border that would comply with all the requirements of Ireland’s continued membership of the European Union and with all the requirements of the Good Friday agreement and the peace process. In the intervening period since December 2017, the UK Government have utterly failed to live up to that promise. That was why the European Union brought forward a solution that I do not think it thinks is particularly good, but it was a desperate attempt to get the UK Government to put their money where their mouth is and bring forward one of the specific sets of proposals that they had willingly promised to produce as a basis for discussion.

Again, let us have no more of this nonsense of claiming that somehow there is a conspiracy between the Irish Government and the EU to take Northern Ireland away from Britain against the wishes of the people of Northern Ireland. The European Union will support the Republic of Ireland because the Republic of Ireland is a member of the European Union, in exactly the same way as the European Union would support the UK in a trade dispute, border dispute or customs dispute with any non-EU member if we asked it to.

I am asking the Minister who sums up to confirm in terms that the UK Government still respect absolutely and unreservedly the sovereignty of the Republic of Ireland and its position as a full and integral member of the European Union, because too much of what we have heard being supported by Conservative Members appears to undermine that position.

Let us not forget that the people of Northern Ireland have spoken twice on this issue. When they spoke in 2016, they said, “We want to stay in the European Union.” When they spoke in the referendum on the Good Friday agreement—which did not bring peace to Northern Ireland, let us not forget, but it certainly brought peace a lot closer than it was before—the agreement reached at that point was that nobody could take Northern Ireland out of the United Kingdom against the wishes of the people of Northern Ireland and that nobody could force Northern Ireland to stay in the United Kingdom against the wishes of the people of Northern Ireland. How on earth is it within the spirit of that agreement for anyone to take Northern Ireland out of the European Union against the wishes of the people of Northern Ireland, especially when it is becoming increasingly clear that it is difficult, if not impossible, to deliver the kind of Brexit the Prime Minister is obsessed with without having to go back on some of the promises that have saved so many lives on both sides of the Irish border over the past number of years?

The Irish border question cannot be easily solved if Northern Ireland is out of the EU and the Republic is in. It can be very substantially solved within the terms of the question that was on the referendum ballot paper if the Prime Minister is prepared to see sense, listen to sense and listen to the businesses and so on that the right hon. Member for Carshalton and Wallington was accused of not supporting. Those businesses are saying to us, “Why in the name of goodness are we coming out of the customs union and the single market?” Customs union membership makes the solution to the Irish border question so much easier and so much more achievable. If that was the only benefit of being in the customs union, I would say to the Government that they should at least think about it.

People did not vote to leave the single market or the customs union. They voted to leave the European Union. [Interruption.] I still have a photograph of the ballot paper at home, if Members want to see it; it does not say anything about the single market or the customs union. We do not really know how many of the 17 million people who voted to leave wanted us to leave the customs union and how many wanted us to stay in it. How does the Minister think Members should vote on the deal, assuming a deal is brought back, if they want to respect the wish of the majority—the majority being the 16 million who wanted to stay in the whole package and the unknown but undoubtedly significant number who wanted us to leave the European Union but not the customs union and the single market? Which option is the Minister saying we should support? Should we vote for a proposal from the Government that will involve us leaving the customs union and the single market on a rotten deal, or should we vote for a proposal that says we will leave the single market and the customs union on no deal at all? That is not a choice that respects the sovereignty of the people or, indeed, the alleged sovereignty of Parliament.

If the Minister is as confident as she appeared that the deal brought before the House will be one that we can all enthusiastically get behind, why do the Government not commit to make that vote a proper, meaningful vote, with alternatives for those who do not want the Prime Minister’s deal because it is too destructive and who do not want no deal? If the Government are so confident that we will accept the deal anyway, why not offer to put a third option to Parliament, which is to let the people decide? If we cannot agree what the people really meant about leaving the customs union, borders in Ireland, passport queues at Brussels and all the rest of it, why not ask them again what they really meant?

European Union (Withdrawal) Bill

Debate between William Cash and Peter Grant

3rd reading: House of Commons & Report stage: Second Day: House of Commons
Wednesday 17th January 2018 Commons Chamber

[Peter Grant]

As I said, I have been disappointed in the performance of the official Opposition up until now. I think we are seeing some signs of cohesion, and quite a number of speakers have been very firm in favouring the single market, as indeed we have heard across the House.

I do not want to point out mistakes that have been made in the past or score political points. There is a time and a place for that. The situation that we will face within the next couple of hours is so important and could have such devastating consequences for all our constituents that how about, just for a couple of hours, we forget the mistakes that each other has made and look at the catastrophic mistake that we may be about to make if we allow the Bill to go through without amendment 59 or something similar being passed? This may be the last chance we have to keep ourselves away from the cliff edge. I say to all those in this House, regardless of their party allegiance, who know that the single market and the customs union is where we have to be, please come through the Lobby with us tonight to vote to make sure that that happens.

[Sir William Cash]

The European Scrutiny Committee, of which I have the honour to be Chairman, has been holding inquiries into the fundamental constitutional implications of the Bill, including clause 5. As is now shown on its website, I have had correspondence with the Prime Minister on its behalf since December. The provisions I refer to would empower the courts, for the first time in our Westminster-based legislative history, to disapply Acts of Parliament. This is no theoretical matter. Indeed, we are advised that such disapplication is likely to apply to a whole range of enactments, including those relating to equality, terrorism, data protection and many other matters.

I raised this massive constitutional issue, as I regard it, in Committee on 14 and 21 November, including by reference to the authoritative statements made by the late Lord Chief Justice Bingham in chapter 12 of his book on the rule of law and the sovereignty of Parliament. Let us bear in mind that he is one of the most authoritative judges in recent generations. He says:

“We live in a society dedicated to the rule of law; in which Parliament has power, subject to limited, self-imposed restraints, to legislate as it wishes; in which Parliament may therefore legislate in a way which infringes the rule of law;”—

I repeat, “infringes the rule of law”—

“and in which the judges, consistently with their constitutional duty to administer justice according to the laws and usages of the realm, cannot fail”—

I repeat, “cannot fail”—

“to give effect to such legislation if it is clearly and unambiguously expressed.”

In that book, he publicly criticised the attitude of Baroness Hale, who is now President of the Supreme Court, and Lord Hope of Craighead for suggesting that the courts have constitutional authority as against an Act of Parliament.

Lord Bingham also specifically approved the analysis of what he described as the “magisterial” authority of Professor Goldsworthy, whom he quoted as follows:

“the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it… What is at stake is the location of ultimate decision-making authority… If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe on unwritten rights, they would be claiming that ultimate authority for themselves.”

He went on to state that they—the judges—would then be transferring the rights of Parliament to themselves as judges. He says:

“It would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum.”

That is the basic principle.

Members of this House and the House of Lords, including former Law Lords and members of the Supreme Court, are themselves deeply concerned about—