United Kingdom’s Withdrawal from the European Union

Debate between William Cash and Richard Bacon

Friday 29th March 2019 Commons Chamber

[Sir William Cash]

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

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

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

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

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

[Sir William Cash]

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

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

EU Exit Day Amendment

Debate between William Cash and Richard Bacon

Wednesday 27th March 2019 Commons Chamber

[Mr Richard Bacon]

I never knew we were going to have such a treat this evening, so it is a great pleasure to have the opportunity to ask my hon. Friend a question. It so happens that I have a copy of the European Union (Withdrawal) Act 2018 with me. It does say in schedule 7—[Interruption.] Actually, Mr Speaker, it was completely by chance, because I had no idea that my hon. Friend was going to dilate on this matter. I heard the hon. Member for Brent North (Barry Gardiner) saying, first of all, the word “deviation” as if this were some sort of BBC panel show. Then I heard him, from a sedentary position, saying that he had no idea what my hon. Friend was talking about. It turns out that schedule 7(14) states very clearly:

“A statutory instrument containing regulations under section 20(4)”—

for the benefit of the hon. Member for Brent North, that is the section of the Act by which exit day is changed, so it is hardly a deviation—

“may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

It occurs to me—I invite my hon. Friend to agree with me—that my hon. Friend is doing an enormous service to this House.

[Sir William Cash]

I am extremely indebted to my very good and very close hon. Friend. I am so glad that he has made that point, because I am simply trying to do what I have always tried to do, which is to get past all the fog and ask the central question, which bears on the issue of the sovereignty of this House in relation to that European Union (Referendum) Act 2015, which gave the right to the British people.

The 2018 Act, to which my hon. Friend refers, is the moment in time when we made that decision in this House. Even my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) voted for the Third Reading of that Act. This was, therefore, a decision taken by this Parliament. So forget the fact that these indicative votes going on at the moment, which I regard as a parliamentary bag of liquorice allsorts, are an obfuscation of the fundamental issues. The draft regulations published a few days ago are not in accordance with the 2018 Act, since they do not change exit day to a particular date. Instead, they purport to change exit day to two different dates—the point Lord Pannick referred to—depending on whether the House does or does not pass a resolution that satisfies the European Council decision. I emphasise the words “does not satisfy the European Council decision”, Mr Speaker.

I have raised this matter repeatedly. We have been supplicating the EU. We have given in to the EU. My European Scrutiny Committee last March published a very good report in which we pointed out that we should not accept the terms of reference dictated to us by the European Union. That is where it all went wrong. It went wrong when the European Union (Withdrawal) Act was overtaken by the Chequers agreement, in a pre-planned operation inside No. 10 driven by the Prime Minister and her advisers, the effect of which was to undermine the repeal of the 1972 Act. I say “pre-planned” because the 2018 Act received Royal Assent on 26 June and within 10 days the Chequers proposals had come forward, which morphed into the withdrawal agreement and article 4, the effect of which is to make us subjugated to the rule making of the European Union. That is what went on and it was done deliberately. It was going on while we were actually passing the withdrawal Act itself. I would describe it as a monstrous deceit on the British people.

I will go further. The course taken by the Government in seeking to pre-empt the affirmative resolution has definitely contaminated the lawfulness of their actions. It has, at a minimum, created serious doubts about the legal situation. I draw attention, for those who would be interested, to the views of the retired Lord Justice of Appeal, Sir Richard Aikens, who is entirely clear on this question.

I wrote a letter to the Prime Minister yesterday. I have not yet had a reply. She has not, in fact, answered my question about the ministerial code, which I have asked twice. As far as I am concerned, this statutory instrument should be voted down. I invite the Attorney General to explain whether, as a matter of fact—irrespective of whether he is prepared to disclose his advice, which I think he should publish—the Prime Minister did consult him, as required under the ministerial code.