This is the first of what will be a series of pieces from European Scrutiny Committee Chair Sir Bill Cash analysing amendments to the EU Withdrawal Bill as Brexit enters this crunch stage
The European Union (Withdrawal) Bill, which repeals the European Communities Act 1972, is coming to a crunch. That 1972 Act of Parliament gives all the European treaties, regulations and laws introduced relentlessly over a period of 45 years dominance over British domestic law. The repeal of the 1972 Act is about who governs this country and means leaving all EU law.
Under the EU Treaties, including the Lisbon Treaty, we had the lawful right to leave the EU. The decision to leave was overwhelmingly endorsed by a combination of democratic consent inside and outside Parliament. The referendum was authorised by a Sovereign Act of Parliament with a majority of six to one in the elected House of Commons.
On 23rd June 2016, 17.4 million voted Leave – the biggest democratic mandate any Government has had in the history of the UK. The referendum turnout was 72%, the biggest in the UK since 1992.
The decision to trigger Article 50 was passed by 498 votes to 114. Then, at the 2017 General Election, 85% of the vote went to parties accepting the referendum. Recent polls show that 65% of people don’t want a second referendum. This leads to one simple conclusion and one simple message: any attempt to stop Brexit is in defiance of our democracy.
Against this background, let us fast-forward to the first day of the Report Stage debate on the Withdrawal Bill in the House of Lords last week. Lord Kerr of Kinlochard tabled an amendment that advocates making the repeal of the European Communities Act 1972 conditional on a minister laying a report before Parliament which outlines the steps taken to negotiate a customs union as part of the framework for a future UK-EU relationship. The word ‘conditional’ makes this a legal obligation.
During the debate on his amendment last Wednesday (18th April) Lord Kerr alleged that: “no one can argue that [the country] voted knowingly to leave the customs union with the EU.” This does not stand up to any sort of rational scrutiny. David Cameron and other Government ministers clearly stated that leaving the EU would necessarily involve leaving the Customs Union. The Leave campaign advocated an independent UK trade policy which is impossible from within “the” or “a” Customs Union.
On top of this, the 2017 Conservative Manifesto committed to leaving the Customs Union and instead seeking a Free Trade Agreement with the EU. The Customs Union issue is inseparable from leaving the EU. Lord Lawson was right in saying that Lord Kerr’s claim “is complete nonsense, with great respect to the noble Lord”. Lord Lawson mentioned the Alice in Wonderland character of the debate and he was right.
In the exchange between Humpty Dumpty and Alice we read:
‘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.’
The very concept of an unelected body seeking to be “master” in this context is an insult to our democracy.
And what happened at the end of the debate? By a majority of 123, the unelected chamber threw down the gauntlet to the elected House of Commons and to the democratic will of the British people. The majority of peers who voted for the amendment include 83 Liberal Democrat peers (whose representation in the elected House of Commons is a mere 12) and a number of Crossbenchers who come from the never-elected ivory towers of the Civil Service, the world of diplomacy and the judiciary. If this outcome were to be endorsed in the Commons, despite the inadequacy of the drafting of the amendment itself, it would be a constitutional travesty and a breach of the will of the people.
We heard on Radio 4’s Today programme on 19th April from the Shadow Secretary of State for Exiting the EU, Sir Keir Starmer, that the Labour Party will support this amendment in the Commons. The very thought that Conservative MPs could possibly cast their votes in Parliament in favour of such unprincipled manoeuvrings (which is the only way that this amendment could go through) and on such a manifestly unarguable case, is bad enough itself.
But, contrary to the suggestion of some, there is no comparison with the Maastricht rebellion at any point of the political compass. That rebellion was for a referendum. That rebellion was for the principle of self-government and against a treaty creating European government. There was no manifesto nor even a White Paper.
If Conservative MPs were to cast their votes in favour of Lord Kerr’s amendment, it would raise massive questions of credibility and integrity – seeing that they themselves voted for the Referendum Act and the triggering of Article 50. They should remember that, for many of them, people voted to Leave in their own constituencies.
Conservative MPs were elected in the General Election on a manifesto to accept the referendum result, and then voted to repeal the 1972 Act on the Third Reading of the Withdrawal Bill. They must vote against this amendment.