Sir William Cash MP – Brexit conference All Souls College, Oxford Friday 9 September
Brexit does not just mean Brexit. Brexit means repeal of the European Communities Act 1972. This is as axiomatic as it is fundamental. The vote to leave the European Union followed from the enactment of the European Union Referendum Act 2015 whereby Parliament deliberately and expressly gave the British people the right to decide the question as to whether to remain in or to leave the European Union. This decision is not only binding in a political sense but also, by virtue of the application and outcome of that enactment, is binding in a constitutional and legal sense. I say this because the voluntary enactment of the European Communities Act 1972, as clearly expressed by Lord Bridge in the Factortame case of 1991, which took us into the then European Community, now the European Union, was specifically put on the line by the question laid down in the Referendum Act of 2015. This question was crystal clear – ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’ The British people decided to leave and the only way in which that vote to leave can be implemented is to repeal that 1972 Act. What Parliament did voluntarily in 1972, we can reverse by repeal of that 1972 Act. We can and must. The brevity and simplicity of that Act is a good template for its future repeal.
There can be no negotiation overs sovereignty and en0ether German or any other combination of Member States, nor any other country or institution has or can be allowed a veto over our decision to leave the European Union, nor can any conditions be imposed on that decision. Sovereignty lies at the heart of leaving the European Union. In his authoritative and seminal book, The Rule of Law, the late Lord Bingham in Chapter 12 entitled ‘The Rule of Law and the Sovereignty of Parliament’ makes it absolutely clear that if the UK Parliament tells the courts to act in a express way, exercising its legislative authority, the courts would obey that Act of Parliament. This is our democratic system of parliamentary government, that the courts obey our Acts of Parliament because they are based on the votes of the Members of Parliament who are acting as their representatives and by their consent in General Elections. This has been our constitutional system of government for centuries. We are the only member state of the European Union without a written constitution. Lord Bingham was at pains, most remarkably and unusually in such a public way – which makes its own point – to publicly disagree with the observations of his colleagues Lord Hope of Craighead and Baroness Hale of Richmond in the case of the Hunting Act 2004. They had suggested a greater pre-eminence for judicial rulings in their own right, claiming authority from the common law as against Acts of Parliament. As Lord Bingham stated, it has been “convincingly shown that 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. Judges did not by themselves establish the principle and they cannot, by themselves change it.” He added that “the British people have not repelled the extraneous power of the Papacy in spiritual matters and the pretensions of Royal Power in Temporal in order to subject themselves to the unchallengeable rulings of unelected judges.”
Indeed, Lord Bingham would have had in mind the Act of Supremacy of 1534 which unilaterally repudiated the foreign jurisdiction of the Papacy over our Canon law.
Lord Denning, only three years after the 1972 Act, in Macarthy’s Ltd. vs Smith stated that “If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament.” Some weeks before the Referendum result on 23rd June, I optimistically drafted a short six-clause framework Bill to provide for the repeal of the European Communities Act. This was to indicate the principles which I believe we need to address and which of course, being a Government Bill, would have to be drafted by parliamentary Counsel. It provides in Clauses 1 and 2 for our withdrawal from the European Union and the repeal of the 1972 Act and then provides for all EU law to be transposed into UK law, within exclusively Westminster jurisdiction. It then deals with rulings of the European Court of Justice which would cease to apply, and of course repeal of sections 2 and 3 of the 1972 Act. It denounces the European Treaties and provides for a staggered series of commencement provisions because the process of repeal by Statutory Instruments would take time, as negotiations proceed. It may be necessary to incorporate a Henry VIII clause, similar to section 2(2) of the 1972 Act and extending this procedure within the Bill, in order to precipitate and accelerate the process. Henry VIII clauses were used to implement EU law imposed on the United Kingdom so I do not really understand why anyone should object to the same procedure in principle generally being applied to reversing that imposition. We may look back to Henry VIII with some disquiet in his treatment of women but he certainly knew how to getting on with the business of governing Britain.
Since 1972, we have inherited a corpus of European Community and European Union law by virtue of a succession of Treaties which we have implemented in our Parliament. The Single European Act (on which I put down an amendment to preserve our sovereignty and which I was not, at that time, even allowed to have selected for debate), was then followed by Maastricht (on which I and others rebelled), likewise with Nice, Amsterdam, and then Lisbon. Incidentally, the Conservative Party was for the first time completely united in opposing Lisbon. In the meantime, I put forward as subsequently did others a whole series of amendments and Bills to provide for referendums on the European Union, including the Maastricht Referendum Campaign in 1993. To transfer by Act of Parliament the consent of the British people was the only way of transcending the collusion between the front benches of the main political parties.
We have therefore been deeply entangled in the project of European integration by a series of Acts of Parliament. This has been achieved by the imposition by such enactments at Westminster of a vast array of Regulations, Directives and other instruments, all of which are binding upon us by our own voluntary decision in 1972, enforceable by the European Court of Justice by virtue of section 3 of the 1972 Act. All this must now be repealed. Following this, apart from necessary preliminary discussions which are already taking place and must continue despite Mr. Juncker (rather than formal negotiations), we will then sit down together with the other member states and the EU institutions and work out mutual cooperation on all policy areas which will benefit all the electorates of Europe, most of whom are deeply disillusioned with the EU at grassroots level. These will include of course reforms on trade, security, defence and NATO and other matters such as fishing, energy, financial services, enterprise and small businesses, and so on.
As I suggested to the Secretary of State for Brexit in his statement on Monday this week, I trust that this will be done as soon as reasonably possible. I would hope that the Government through Parliamentary Counsel comes forward with a Government Bill to achieve this in the near future in order to demonstrate to the European Union and to the British electorate and the Supreme Court that Parliament intends to get on with this business. It may be that threats of obstruction in the House of Commons, particularly from the SNP and in the House of Lords may give rise to difficulties. However, the House of Lords needs to be mindful of the Parliament Act 1911 and recalcitrant members of the House of Commons will need to be aware of the views of their constituents and Associations, particularly in the melee of the scramble for seats of the Boundary Review which will be announced on Monday next week. We should also recall that the House of Commons as a whole, except for the SNP, passed the Third Reading of the European Union Referendum Act 2015. Because of the timetable in the Act of 1911, we need to get on with the presentation of the Bill. Of course the House of Commons on Third Reading passed the European Referendum Act, except for the SNP who voted against. Time will tell but time is also of the essence. For example, it is legally impossible for the UK to both remain in the Single Market and to repeal the 1972 Act or for the UK to formally enter into bilateral international trade agreements whilst we remain members of the European Union which will only cease when the 1972 Act is repealed. We will continue to trade into the Single Market but not be in the Single Market. Other major economic powers such as the United States, China, Japan, Australia and others already do so. It is imperative to understand that repeal means repeal and that all UK law inheriting some former EU laws which are politically acceptable to us will then become part of Westminster jurisdiction and will be adjudicated by our own Supreme Court and not the European Court of Justice. There will be provisions of the current acquis communautaire which we are content to continue to apply to the UK within Westminster United Kingdom jurisdiction. These will include EU directives transposed into UK law by subordinate legislation under section 2(2) of the 1972 Act. One can think of examples such as roaming charges and other EU legislation which we will want to retain. I expect there will be a reversion by our courts to the pre-1972 means of judicial interpretation of statutes. This will be a judicial exercise in relation to pre-repeal precedents which will give rise to judicial consultation.
In principle, legislative provision continuing previous EU legislation but within the framework of Westminster jurisdiction is achievable and more than likely necessary. This is because the entire corpus of EU law currently in our statute book may well be unachievable before the repeal of the ECA 1972. However, we must not delay. The Competence Review has already required the legal advisors in all Government departments to assess the impact of EU laws on policy. Therefore, much of the work has already been done. Indeed, I recall from my reading of Jolowicz in his historical introduction to Roman Law that Justinian around 530 AD, with a dedicated bevy of lawyers, reduced 3 million lines of legislation to 150,000, which shows that with political will it can be done. Incidentally, on another historical note, not only did India in the 1940s transpose all its pre-existing Empire law into Indian law but even,
so I understand, the US Congress in 1789 did the same regarding English law. There is nothing new under the sun.
This Repeal Act is not only a constitutional act but has profound consequences for our future prosperity, for free trade, for reducing the burden of overregulation and for avoiding the prescriptive nature of laws and jurisdiction which we have found burdensome including the unintended application of the Charter of Fundamental Rights.
As my mutual exchange with the Prime Minister on the G20 summit statement on Wednesday indicated, if we want free trade and with the rest of world based on our own bilateral trade policies and trade negotiations, we need to repeal the 1972 Act in order to regain for ourselves the current EU and European Commission legislative control over our trade policies. This, as Liam Fox made very clear yesterday in the House will provide the means to build on his informal trade discussions/negotiations but under our Westminster legislative jurisdiction after repeal. Meanwhile, the Transatlantic Trade and Investment Partnership (TTIP) and the Comprehensive Trade and Economic Agreement (CETA) are facing likely failure and probably will not be ratified because for a variety of reasons, partly political in the run up to the French and German elections and partly because they are mixed competence agreements requiring unanimous ratification which seems improbable. It seems to me that it is better for us to accelerate the whole process ahead of French and German elections because their own electorates will be putting pressure on their Governments for fear of losing jobs in their export markets to the UK which would be severely damaged by an attempt by such country’s governments to impose tariffs or trade restrictions on the UK which are so vital to their own job markets. We need to make this clear to those countries by whatever means, including social media. What is at stake for their own voters?
The message therefore is the sooner we get on with the repeal process the better, not only because of sovereignty and giving effect to the people’s vote to leave but also because of practical economic and commercial imperatives. We must address the issue of timing and the chicken and egg. Repeal must be the catalyst in conjunction with Article 50. Article 50 cannot be sensibly be invoked until the Supreme Court has made its ruling on the Mishcon de Reya case, which I expect to be in favour of the Government’s legal advice that Article 50 is a matter of prerogative and not for a vote in Parliament and despite the House of Lords EU Constitution Committee’s dismal report on this subject. I expect the Supreme Court to fast track an appeal from the Divisional Court.
The Foreign Minister of Slovakia who is currently the Foreign minister of the Presidency of the European Union stated to a European national parliamentary conference of Chairmen of the 27 EU affairs committees which I attended on 10th July that “the negotiations will be complex but not necessarily difficult”. But we can make no progress with any negotiations if the European Commission in the shape of Mr Juncker gets its way. He is insisting that we have no right whilst we are members of the EU until repeal to engage in even informal trade discussions. His utterances are political nonsense and must be ignored, not only by us but also by all others worldwide, including EU member states. He has already contaminated the debate in the United States and Australia. Everyone stands to gain by commencing informal negotiations in advance of the repeal. They want and need to trade with us and vice versa and nothing should stand in the way.
Some general issues which will need to be addressed:
• Until Brexit day EU laws will apply to the UK including free movement of persons. It would not be possible to prevent entry into the UK.
• In order to deport an EU citizen or their dependents prior to Brexit day, the conditions laid out in EU law must be complied with, otherwise the deportation would be contrary to EU law and risk court proceedings – either from the individual concerned, or infringement proceedings from the Commission and/or another Member State.
• Citizens of other EU Member States and their dependents may have acquired rights under UK law as at Brexit day which would enable them to stay in the UK.
• (i) The extent of those acquired rights, (ii) the date from which they have been acquired (the “cut off date”), and (iii) any proof that would be required to vindicate such rights, will depend on any UK legislation governing the terms of UK withdrawal from the EU, which will reflect the terms of any agreement reached with the continuing Member States.
• However, to the extent that UK Brexit legislation does not cover these points, they will be determined by the UK Courts applying existing domestic legislation (such as the Human Rights Act) and/or applying common law.
• EU citizens and their dependents who find themselves in the UK but who do not benefit from having acquired rights would be subject to deportation in accordance with the current UK immigration law.
These general issues also include current EU legislation which gives the EU institutions a specific role for example in adopting EU subordinate legislation and gives the Commission a coordinating, reviewing or supervisory role. In many of these instances, we could deal with these provisions by general disapplication. There is also some current EU legislation which involves EU agencies such as the European Medicines Agency or Europol. In such cases, we could continue EU legislation but within UK domestic law, if it was our policy to do so on the basis of parallel Westminster policy and jurisdiction. The founding documents of some agencies already provide for participation by third countries.
There is also the question of current EU legislation which involves coordination and reciprocal arrangements with other Member States which may need to be continued after repeal. These could even be achieved within arrangements under Article 50 or even by some separate agreement or convention. These are all matters which parliamentary Counsel will need to consider in relation to the Repeal Bill.
There are also the EU Directives which have already been transposed into UK law which would continue within Westminster jurisdiction under a clause in the Repeal Bill which I believe must deem all EU law to be Westminster law and then gradually repealed under Statutory Instruments where it is policy to do so. Subordinate legislation will lapse once section 2(2) of the European Communities Act 1972 is repealed, so it will be necessary to continue that legislation for the time being under the Repeal Bill but provide for its amendment or repeal in due course.
Judgements of the European Court of Justice will no longer apply to the United Kingdom after repeal but some of the pre-Repeal judgements as a matter of policy, for example, in relation to employment law, social law and related matters, may require Westminster legislation to bring them within our Westminster and Supreme Court jurisdiction.
Turning to Article 50, I would offer to the following observations about the Mishcon de Reya proceedings now in the Administrative Court for a declaration that an Act of Parliament is a constitutional precondition of invoking Article 50. They argue that Article 50 needs to be endorsed by an Act of Parliament. The argument being presented by The Lord Pannick QC, that most distinguished Fellow of All Souls, is that it would be illegal for the Government to trigger Article 50 solely on the principle of Prerogative.
In my view and that of many senior lawyers, giving notice under Article 50 is an act of prerogative as the Prime Minister clearly stated on Wednesday on legal advice. The leading case is the Fire Brigades Union case of 1995 in which Lord Browne-Wilkinson stated “It would be most surprising if prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament as expressed in a statute.” The argument being raised by Lord Pannick QC through the solicitors Mishcon de Reya is based on an interpretation of the European Communities Act 1972 which claims that the Act prevents withdrawal from the EU. This is not what the 1972 Act prescribes. The long title of that Act states “An Act to make provision in connection with the enlargement of the European Communities to include the UK”. The words “in connection with” are vital. The Act does not provide for the UK’s accession to the EU. This arises by virtue of the prerogative and international law. The Act provides the means through which the law of the European Union is implemented into our law. It does not prohibit withdrawal from the EU expressly or by implication. As respects the Treaties, to which we have acceded, these will need to be denounced by and under the Repeal Bill.
Furthermore, to suggest that a further Act of Parliament is needed to trigger Article 50 would frustrate the purposes of the European Union Referendum Act 2015 which, some moments go, I demonstrated was a sovereign Act as understood and debated in Parliament, conferring on the UK voters rather than their MPs as elected representatives the decision as to whether to remain in or to leave the EU. If, as claimed, Parliament were to be required to approve the result of the Referendum because of the 1972 Act, this would change the basis on which the public thought they were casting their votes. This would amount to an unlawful frustration of the will of Parliament as set out in the European Union Referendum Act 2015. The Administrative Court and thereafter on a fast track the Supreme Court will need to tread very carefully because it cannot tell Parliament what to do, as was so clearly stated by Lord Bingham in his book, The Rule of Law. If the Administrative Court or the Supreme Court sought to do this, it would be trespassing into the “exclusive cognizance” of Parliament, which is constitutionally out of order under the Bill of Rights 1689.
Parliament, not the courts, determines its own procedures and there is no convention or case law to the contrary. I have serious concerns about Article 50 in its own right however because of the extent to which it gives the European Parliament an overriding power of consent to the negotiations and also the degree to which, by qualified majority vote, other member states could and probably will seek to impose conditions on our withdrawal which would be unacceptable. Article 50 is triggered by our giving notice in accordance with our own constitutional requirements which as I have indicated, is an exercise of our prerogative. There is no set time or notice to be given. Notice by the Government triggers a two year guillotine within which the negotiations of the arrangements for withdrawal i.e. the Article 50 agreement must be completed. The withdrawing member state is automatically regarded to have left the European Union, unless the period of 2 years is extended by our own agreement and that of the European Council which must act unanimously. The Council must agree the Article 50 agreement by a majority of 20 of the 27 Member States, representing 65% of their population, although it does not need ratification by the individual remaining Member States. It must also be agreed by the European Parliament. It is of course possible that the members of the European Parliament will be expected to follow the directions of their party political leaders but this is an uncertain risk.
As part of the Article 50 agreement, the issue of acquired rights of citizens of other Member states residing in the UK and UK citizens residing in other member states is a matter which could easily become part of the Article 50 discussions. The Government wants to be generous to EU citizens and the Secretary of State is confident that this can be delivered on a reciprocal basis as a top priority. It would be important to settle this question before Brexit, because otherwise the UK courts could be left having to interpret the laws that make up the current UK doctrine of acquired or vested rights under the Vienna Convention, the Interpretation Act and so on.
I notice that there has been some recent commentary by the former Legal Advisor to the Council of Ministers, Jean Claude Piris and by others in evidence to the House of Lords that revocation of Article 50 is a possibility and the United Kingdom could change its mind and halt the withdrawal process. Such an argument is politically and legally unacceptable for it repudiates both the sovereignty of Parliament and the will of the people. Article 50 is in danger of taking us deep into the enigmas of Through the Looking Glass and Alice in Wonderland. From Alice in Wonderland, we recall –
"Alice laughed: "There's no use trying," she said; "one can't believe impossible things." "I daresay you haven't had much practice," said the Queen. "When I was younger, I always did it for half an hour a day. Why, sometimes I've believed as many as six impossible things before breakfast."
In Through the Looking Glass, we have an even better example –
"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean - neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master - that's all."
What is clear is that the will of the British people as authorised by a sovereign Act of Parliament is not to be trifled with, nor is our centuries-old tradition of parliamentary self-government.
For these reasons alone, we should get on with the Repeal Bill as soon as reasonably possible