18
Examination of witnesses
Sir William Cash and the Earl of Kinnoull.
Q103 The Chair: Welcome back to this public session of the House of Lords Select Committee on European Affairs, where we continue our inquiry into the issue of dynamic alignment. For this second session, we are delighted to welcome as our witnesses two great experts on the whole issue of parliamentary scrutiny: Sir William Cash, former Chair of the House of Commons European Scrutiny Committee, and the Earl of Kinnoull, former Chair of the House of Lords European Affairs Committee and currently convener of the Cross-Bench peers and, to some extent, my boss. Welcome to both of you.
This is a public session. It is being broadcast. There will be a transcript produced and you will be provided with a draft to correct any errors and omissions you may find. We aim to wrap up by 1 pm, so we will need to be as concise as we reasonably can with the questions and the answers to fit in all of the business.
I will start us off, if I may, with a question to both of you, which is whether Parliament’s experience of EU scrutiny when we were a member state is relevant to our consideration of possible scrutiny arrangements of dynamic alignment. Is there anything that we did then that we should carry forward or reintroduce, or do we need to scrap all of that and start anew? Perhaps I could start with Lord Kinnoull, if I may.
The Earl of Kinnoull: Thank you very much, and thank you very much, all, for having me here, and what an interesting question to start with. Of course, the system that we developed for scrutiny, which was developed over 40 years, is still with us because there is a sift going on still, thanks to the withdrawal agreement and the Windsor framework.
That system was felt not only by Parliament but also by the European Commission to be a good system, as we, certainly in the House of Lords, and in Sir William’s committee as well, were felt to be trying to improve the legislative proposals that were coming along. It is a good system and it quietened down a bit. At the peak, we had 25 members of staff involved in the system in the various committees. There were six sub-committees and one main committee, plus, of course, from time to time, each of the committees had special advisers, so there could be nearly 30 members of staff working on it. A lot of resource was thrown at it and it was widely respected.
One of the things that we will be missing, however, is a scrutiny reserve resolution, and that has been replaced by the letter, which I am sure we will come on to. I do feel that building something back up along the lines that we had before, if we have these three dynamically aligned deals, would be extremely important. It would not be just us who benefited, but the EU as well. We really did, in a dispassionate, House of Lords way, give good advice on how you might improve the legislative proposals that were before the EU structure.
Sir William Cash: For me, the question in itself simply poses a much deeper question, because we are not in the same place that we were. I was on the committee myself for 40 years, and I was chair for nearly 15. During that time, a huge amount happened, including our leaving the European Union.
The constitutional difference, if I may say, has not really been examined much in the proceedings that I have seen. The House of Commons Foreign Affairs Committee did quite a good job in asking some relevant questions but not the fundamental constitutional question, and the same applies to other committees as well.
It seems to me that, basically, it is apples and pears. I seem to remember that in Through the Looking-Glass the Queen and Alice had a conversation. She said, “One can’t believe impossible things”, to which the Queen said, “Sometimes, I’ve believed as many as six impossible things before breakfast”, and we are rather in that context. It is apples and pears. We are not dealing now with the situation that we were in before, and that is a very important part of this.
Finally, just to be succinct on this, the truth is that the EU has not changed and will not change. Therefore, the presumption that the decisions that are made in this evolving, what I call EU amoeba situation, which is the way I describe dynamic alignment, which will be an onward increasing, ever intrusive element affecting the United Kingdom and its voters and people, is determined by the EU laws that are ultimately made in the Council of Ministers, behind closed doors, by majority vote and without a transcript. In a nutshell, I do not really see how it is going to be possible to make dynamic alignment work within the framework of the United Kingdom’s constitutional arrangements.
On the question of decision-shaping, the reality is that there is really no means whereby you can properly influence what goes on. In fact, in the common understanding, which is its own document, the European Commission’s recommendation regarding these negotiations is that, “Neither agreement should give the United Kingdom the right to participate in the Union’s decision-making”. There is much more that goes on to that, and I have produced a paper, which I am happy to supply to the committee, on these questions, although I do not think we have time to go into it.
I recognise Lord Barrow here. He and I have had a lot of discussions over the years, and all I can say is I do not think that the European Commission has, as you can see, any intention of changing its own position.
The Chair: Thank you. Perhaps we can explore the issue further with Baroness Ashton.
Q104 Baroness Ashton of Upholland: Thank you, both, for being here. As an aside, I chaired three councils and sat on the European Council. I do not remember any votes in my time, so it has changed if the situation now is that they are voting in the councils.
However, you both know far better than I the traditional way that things have been done—the depositing of EU documents, legislative proposals, memorandums and so on. As Sir William has said, the challenge of decision-shaping is a different one. It is a different one because, as we were hearing in our previous session, there is an opportunity to influence through the working group system, which those of you who know Brussels well will know is really important, but not, of itself, the most important.
There will be issues of how far that process is going to be where the nuts and bolts and decisions are really taken about what kind of dynamic alignment we are discussing and the implications for industry, agriculture and so on.
I wonder if you could cast your minds back to your roles as chairs and think through what we might do to try to engage with this process most effectively. Are there things—tricks of the trade, if you like—from your experience that you think, “Well, in order to try to gain some traction as Parliament in terms of the whole question of decision-shaping, what you could do would be this”? Are there any thoughts?
Sir William Cash: I do not really think there is a way. I am sorry. I do not want to sound too negative, but the constitutional arrangements are what they are. I said already that I do not think the EU has any intention of changing. In fact, it said it will not. All the discussion I heard before on the joint committee and all the rest of it is all decided, again, in a completely closed environment, and the democratic element in all this is completely missing. That is really the problem.
I can only say that I was confronted with the legislation around the withdrawal agreement. It was 17 October 2019. I woke up at about 4 am and started drafting two clauses, one of which was Section 38 on parliamentary sovereignty. The other one was a review of EU legislation during the implementation period.
I just mention this without going into great detail. It is a good idea to look at this. It was unopposed in both Houses and it did go through. It was Section 29 around review of EU legislation. It provided for the European Scrutiny Select Committee itself to be able to publish a report in respect of any legislation that would enable us to give an opinion as to whether it raised a matter of vital national interest. We would then go into a session of evidence-taking and so forth.
At the end of the day, a Minister of the Crown would have to move a motion and must—not might—within a period of 14 days make arrangements for the whole matter of the matter of vital national interest to be debated and voted on by the House of Commons, so there was a veto potential in there, although, of course, when a Government have a massive majority, you can forget it because they will pass whatever they want.
For practical purposes, in the context of dynamic alignment, to jump forward a bit to some other questions, this is a matter to be looked at quite seriously because our constitutional arrangements are based on an unwritten constitution, on the principle of legality, where the Supreme Court will make decisions about interpretation but have to bear in mind whether the laws in question are clear and unambiguous.
On that footing, basically, I am afraid that the idea that, somehow or other, there is wriggle room or a way round all this is, as I said earlier, rather an impossible dream from a constitutional point of view from within the framework. If we change our constitution, that is another story, but we already have a constitution. I do not call this a reset. I call it a re-constitutional arrangement. It is a different thing altogether. It is also very important and vital in respect of the referendum and also the integrity of decision-making in the House of Commons as the mother of Parliaments.
The Earl of Kinnoull: In terms of what decision-shaping means, I am having a little difficulty in really understanding it, as is everyone, probably, because it really surfaced for the first time in the Swiss arrangements. I am sure that the Swiss, who you have already met, have some interesting views on what it means.
If you look back at how we sought to influence things—I am looking at Lord Barrow—the influencing was not being done just by people sitting in this building. It was being done by the very substantial number of people who we had in Brussels, who were going to lots of meetings. Sometimes, what one was trying to do was to shape things so that they were beneficial to Britain. Quite often, what one was trying to do was to just clear things up, a bit like the House of Lords does with straight legislation.
If you are going to build a bit of scrutiny machinery, it includes a substantial piece of Foreign Office machinery in Brussels, and includes two substantial pieces of machinery here that can do the parliamentary scrutiny. After 40 years of polishing it up, the system we came up with here is understood by Whitehall. Yes, occasionally, the EMs were poor quality, but you could usually sort that out. There were lots of things that one needed to do.
There was another thing. Quite apart from what was going on in this building and in Brussels, there were the COSAC meetings. We used to have, of course, a substantial number of people who would go to a COSAC meeting, where you could talk to other people about particularly difficult files. One thing we have lost access to in all of this is the reasoned opinion procedure, which is not used that often, but, for the really hot files, it is very important. I am looking at Baroness Ashton nodding there. I am not going to lecture you on the procedure, but it is something that we would need to try to replicate in the decision-shaping mechanism, so that, in some way, we are influencing whether a particular thing should go down that procedure, if we have a reasonable set of arguments.
If we are going to build something good and strong here, the scrutiny reserve resolution was the written foundation here before. At the moment, the written foundation is that you are up to number three in terms of the letters. A proper resolution of both Houses would be needed to be the platform on which the parliamentary bit was being built, and that will make us more influential. This is official. When we intervene with the Commission and with people in Brussels, they will see that it is an official thing of the whole of Parliament, not just some committee firing from the hip. It is important to move away from letters and back to scrutiny reserves. I will probably leave it there on that question.
The Chair: Thank you very much. Of course, we are seeking to get our minds around not just how we scrutinise what the EU is doing, but how we scrutinise what our own Government are doing in relation to the EU. That includes decision-shaping as well as the implementation afterwards. I will pass over to Lord Brennan, but I know Sir William wants to come in quickly.
Sir William Cash: I just wanted to say there is no veto. It was whittled away completely. For practical purposes, that just does not apply, unless my amendment, as expressed in Section 29, was to produce something whereby Parliament said, “No, we are not going to do any of this”, after a proper procedure.
The other thing I quickly want to say is that the abolition of the European Scrutiny Committee was not just an aberration; it was a complete disgrace. It was done within literally three minutes, with one line—“Standing Order 143 is hereby rescinded”, or words to that effect—and no debate. They knew exactly why they were doing that, if I may just put this on the record, because they really did not want us looking at what was going on.
The European Scrutiny Committee, with all its paraphernalia—and Tim knows this extremely well—was extremely efficient. We had a fantastic staff. We had Speaker’s Counsel. I will not go into it all, but it was a really streamlined operation. They literally abolished it. It had been going since 1973. Chairs were Conservative and Labour. I was on the committee all that time, and I never had any problem with the other chairs from the Labour Party or whatever. It worked as an objective analysis. It was providing proper parliamentary accountability. It dealt with all the issues in an extremely competent fashion, and it was a disgrace that it was abolished and that it was done for a deliberate reason, which is that they did not want people to know what was going on.
Q105 Lord Brennan of Canton: Lord Kinnoull, we have strayed into some of this because people have gone quite wide, but how and through what parliamentary body or bodies should Parliament scrutinise the EU law to which the UK will be committed to dynamically align? What changes might this require to the European scrutiny system as it operates at present? We have already strayed into it, but do you want to dig down a bit more on that?
The Earl of Kinnoull: I have been thinking that we have already signed up and was talking about scrutiny after that. This is a critical question. One of the things that one should go back to is the genesis of CRaG. One must remember that, at the time that CRaG was put in place, which was right at the end of a dying Parliament in the wash-up, and which meant that the UK Parliament has very little control over things when it is an international agreement, quite unlike most other Parliaments and, indeed the European Parliament, the man in the street would not have thought it was too bad, because, although this Parliament had lost the ability to scrutinise an international agreement properly, his vote for his European parliamentarian still had it.
The act of leaving the European Union meant that Parliament has been, from the man in the street’s point of view, cut out totally from the scrutiny of international agreements. Parliament has a right to draw that to the attention of the world and to try to become much more involved in new agreements. Under the way that the Swiss agreement and the Swiss constitution work, each new little thing that comes through is another international agreement and goes through its full constitutional things.
Lord Brennan of Canton: What would that look like in practice if that were to be brought into being in the UK Parliament?
The Earl of Kinnoull: It looks like a series of amendments, I suspect, to the forthcoming European Bill, in trying to restore some element of parliamentary oversight of what is going on.
Lord Brennan of Canton: Would that be the rehydration of the European Scrutiny Committee, for example, or would it be something else?
The Earl of Kinnoull: That is something else. The two committees were very much trying to look at European legislative proposals. For us, it was about 900 a year that had to be looked at by the staff, which is why we needed so many staff. There is a difference between signing up to one of the three things that we are going to sign up to—the SPS, the ETS and electricity. There is a difference between the signing-up process there, and then, once you have signed up, what happens, and I am trying to distinguish between the two. The answer that I have just been given on the process of signing up to it is that Parliament needs to have a jolly good, long, hard think about how much latitude it gives the Government.
Lord Brennan of Canton: Would some form of sifting mechanism be part of that?
The Earl of Kinnoull: Once you have signed up, the full sifting mechanism will have to take place. I do not know how many legislative proposals there will be. Even with just the bit of the Northern Ireland thing, it was 100 pieces a year or so that came through the sifting system, and so let us assume it was several hundred. You have to do that because you could not possibly look at every single one, and nor would it be right, because some of the proposals are for very small things.
Sir William Cash: Without wanting to be in complete disagreement with my noble friend, I would simply say that this is about sovereignty. That is the centrepiece. That is why Section 38 went in there. That is the basis on which people such as Lord Bingham, Lord Denning and all the great jurists have been very clear over a long period of time in relation to Parliament passing enactments and the rest.
Lord Brennan of Canton: Would I be right to say, Sir William, that, even if the evidence we took in this committee about dynamic realignment produced a widespread consensus that it would be hugely economically advantageous for the UK to do this—and I am not saying that is what we have been presented with—you would be opposed in any case to this whole procedure of dynamic realignment on constitutional grounds and on grounds of principle? Therefore, whatever evidence was presented, that would be your position, or is that unfair?
Sir William Cash: It is very difficult to disagree with that assessment, and I am not going to, for the simple reason that our constitutional arrangements are different from the other member states. Even in Norway and, for that matter, Denmark—I have been to these countries, as has Lord Kinnoull—it is a very different situation.
Lord Brennan of Canton: In fairness, that is a consistent position you have taken, and I completely understand it even if we do not agree on it.
Sir William Cash: The question is not one of economics. Harold Wilson and Edward Heath both tried to turn the tables on those who wanted to resist on the grounds of sovereignty back in the 1960s and 1970s. The answer does not lie exclusively or at all in the economic arguments.
Lord Brennan of Canton: Yes, that is understood, but that is part of what we are discussing.
Sir William Cash: Yes, but it is a fair point.
The Earl of Kinnoull: May I just speak a little bit about sovereignty, as we are there? Of course, when one looks at Norway, its matters are looked at not by the European Court of Justice, but, of course, by the EFTA Court. If you look at the Swiss deal, which is still to be voted on and so is not a deal yet, they have managed to get round the sovereignty thing in a series of quite clever ways.
The sovereignty thing is a real problem, but the Swiss have found, after 10 years of negotiations, a route through, where the European Court of Justice is going to look only at the applicability of EU law. They have found a way through and it looks as if it is going to be, potentially, a slightly bumpy ride for them, but on the ground—I have been to Switzerland twice this year already—it is very smooth. You just walk across the border and everything is going smoothly there, even though the treaty arrangements look as if they could fall into all sorts of problems. They have managed to find a way through the sovereignty issue, but I feel that even Sir William, who is very strongly consistent on this, might not feel is—
Lord Brennan of Canton: I do not want to encourage further debate on that point. I am giving it back to the Chair. Thank you.
Q106 The Chair: I just want to be clear on something, because, from what Sir William said earlier, I have the impression that, assuming we have a system of dynamic alignment—and the issue is going to be how Parliament participates in what happens under that system, not just in agreeing it in the first place, but what happens after—he was in favour of some system that would sift the changes that came through to determine which were truly important and relevant, and that the House of Commons should have some say on those measures.
Sir William Cash: Section 29 does set it out. It is there, and you can look at it. I have brought it with me, if anybody wants to look at it. It ended at the time of the implementation period’s conclusion, but the principle was there.
The real point is that sovereignty is not divisible. I remember Geoffrey Howe talking about a bundle of sticks. It is just not true. Sovereignty is sovereignty, and it means that you make your own decision through your own elected Members of Parliament, in Parliament, to make the decisions that are relevant, as you believe, for the benefit of the public as a whole. The decision to hold the referendum was a sovereign Act of Parliament too.
I do not want to go on too much about that, except to say that the sifting arrangement does not work in practice. It may do as a matter of convenience, but it does not change the basic constitutional problem.
Q107 Lord Moynihan of Chelsea: The Earl of Kinnoull made a very interesting point just now, which is that Norway and Switzerland, which are possibly the closest examples that we could look at, have found ways to preserve, from their point of view, sovereignty. Are either of you aware of any efforts in the current negotiations to preserve our sovereignty?
The Earl of Kinnoull: I am not, but I am afraid I am slightly tied up in other matters all round. I cannot believe that they are not, because the Swiss have, after 10 years, just come through with a very interesting deal. It would not be wrong if our deal was grossly different from the Swiss deal, which appears to be that, if Switzerland says, “No, we do not like this particular legislative proposal and we cannot get it through our constitutional arrangements”, there is a stand-off. The two sides have to decide what to do about the stand-off, but it does seem that, in those circumstances, Switzerland and the EU will continue to be very friendly. Every now and then, they will have a stand-off, for reasons that they probably respect in each other.
I would be very interested to see, if the Swiss agreement is finally agreed, two or three years of trading. I know that we are trying to get our SPS thing up and running next year, and the ETS the year after that, and the electricity the year after that. I am sure it will be a bit slower than we hope, for traditional reasons where the EU is concerned, but we should look very hard at where Switzerland has got to.
I am sorry to talk for so long, but Norway achieved its deal at a time when EFTA was a much bigger organisation than the EU. The trouble is that the dynamics that brought that deal about are not there today. It is very interesting, but it is not going to be helpful in showing us where to go to.
Sir William Cash: If I may, the argument could be deployed in a slightly different way by looking at what they say in the UK-EU Summit—Common Understanding. It says that there should be some involvement with the UK at an early stage, although it goes on to say that, “These rights would not extend to participation in the work of the Council or its preparatory bodies”. That is where the problem lies.
The decisions are taken in the Council of Ministers, as I said earlier, behind closed doors, by a qualified majority vote, and there is no veto. For practical purposes, whichever particular element applies—even EMS or phytosanitary and all the rest of it—you can have your arbitration procedures, but it is quite clear that the ultimate decision will involve the European Court of Justice, and that is a severe infringement of the United Kingdom’s sovereignty. That is a really serious problem, and there is no way round it.
The Chair: On the issue of veto and other matters, I pass over to Lord Elliott.
Lord Elliott of Mickle Fell: I feel I should begin by declaring an interest. Sir William gave me my first job in politics some 25 years ago, so it is great to see you here today.
Sir William Cash: And Allister Heath.
Q108 Lord Elliott of Mickle Fell: This has been touched on already, so perhaps you could add to other thoughts. Should Parliament be able to block the application in Great Britain of EU law that is otherwise due to apply under a dynamic alignment agreement? If so, should this blocking be done through some mechanism constraining the Government’s ability to agree to decisions in joint bodies with the EU or potentially constraining the application of such decisions, or should the blocking operate through the domestic scrutiny process for legislation, or both?
Sir William Cash: Like the Irishman, I would not have started here, because, for practical purposes, you would not need to block if you were not being presented with dynamic alignment—which, by the way, was well known even at the time of the Single European Act. My first sovereignty amendment was against Margaret Thatcher’s Government, when I said, “Nothing in this Act shall derogate from the sovereignty of the United Kingdom Parliament”. I was told I was not allowed to debate it in those days, but things have moved on.
The question of whether Parliament should be able to block is not really the question. Parliament must be able to block, in fact. Back in 1970, when Con O’Neill was conducting these negotiations, the White Paper had a very interesting section. Christopher Tugendhat may remember this. It said that the veto would remain for all time, because that is the way they wanted the White Paper to go through. It then went on to say something very interesting, which is that to do otherwise would undermine not only the constitution of the United Kingdom, but also the very fabric of the European community itself, because they knew that you would lose democratic control if you could not veto. That has always been the centre point of my concern.
I will not enlarge on my career, but I simply make the point that it was a bit of a mission. I can only say that I also said that I would never depart from that, because I am more interested in the decisions of the voters than in the decisions of Government.
The Earl of Kinnoull: I think yes, and let me explain why. In the Norwegian situation, if Norway says no—and ignoring whether that is the Norwegian Parliament or Government—there is a written-out dispute resolution mechanism. In the Swiss position, Swiss Parliaments can say no, and there is no written dispute resolution mechanism, but there is a dispute to resolve.
I have already said that, for me, the CRaG arrangements are highly unsatisfactory, and not how other Parliaments in liberal democracies conduct themselves with major international agreements. On top of that, I would cite the fact that we have very weak secondary legislation scrutiny arrangements. We only have our two different methods. We can never amend anything, and it is six times since the war that the Lords has said no to a secondary piece of legislation. Finally, we have lost the reasoned opinion procedure. We could club together and try to bear down on something that was going wrong.
There has to be a mechanism of constraint, as I put it, which is a bit different from saying an absolute veto, which is, I suspect, where Sir William is. There has to be a pretty strong mechanism of constraint that Parliament can exercise on things. Otherwise, we are ceding the ground for ever, I am afraid, to the executive, and I just feel that would be wrong.
Sir William Cash: I agree very much with what my noble friend has said on that. The Henry VIII procedures, which we have not examined at all today, are absolutely, critically dangerous. The late Lord Igor Judge was a good friend of mine, if I may say. Richard Gordon QC said that the Henry VIII procedures go back as long ago as the Donoughmore report in 1926. This accumulation in The Devil is in the Detail, which is Ruth Fox’s analysis of the whole of delegated legislation, is really worth reading very carefully.
My noble friend is completely right. It is hopeless. There was going to be an attempt to get an inquiry. It never took place. It is the executive which controls everything. Henry VIII clauses were described by Lord Igor Judge as something that should be relegated to the dustbin of history, and they certainly have not been. They are being increased, and they are at the centre and at the heart of this arrangement under the reset.
That is what is going to go badly wrong as well, because it is not going to be democratic at all. It is going to be forced through a system that is not justified at all, anyway, for a variety of constitutional reasons, but they will ram it through with a large majority if they can, and I can only say that there are those of us who will do whatever we can to resist it.
Q109 Lord Jackson of Peterborough: If I can briefly go back to the Earl of Kinnoull’s comments, obviously you are not in agreement with Sir William about an absolute veto. Are you positing a Parliament Act delay that obliges the Government to think again about the ramifications of a particular SI? Is that something that you think would have merit, rather than an absolute veto?
The Earl of Kinnoull: That is certainly the minimum standard, because that is, after all, pretty well what the European Parliament has. This is an area where a lot more thinking and negotiating needs to be done, and I would like to see a little bit about how things develop in Switzerland as well. If things develop in Switzerland along the time where they are having a tremendous number of disputes, because an awful lot of legislative proposals are vetoed by one or other of the Swiss entities, my feeling about what should happen would be different than if the Swiss thing bumbled along okay.
Anyway, that is why I have labelled it “mechanism of constraint”. The minimum is some sort of delay mechanism, calling for special reports, having debates and generally shining lights on things. The maximum would be where Sir William is, which is an absolute veto by Parliament.
Sir William Cash: If I may just finally say on this, for me, a veto is a very positive thing in the context of our constitutional arrangements. Otherwise, you are governed by other people, and that is not what we are supposed to be here for. We are supposed to be governing for our own people. I did say in 1986 during the Single European Act, “We shall reap the whirlwind”, if we do not get this right. It is in Hansard.
As far as I was concerned, as I stated then, the question was about who governs Britain. Is it the European Commission, is it the European Parliament, or is it going to be our own elected Parliament? That is the fundamental issue of democratic decision-making. Once you depart from that principle, I am afraid the veto becomes necessary, because there is no other way of preventing other people from passing laws against your voters’ will.
Q110 The Chair: Of course, as you said earlier, Sir William, in terms of a parliamentary as opposed to an executive veto, we should not get too carried away, because, if the Government have a majority in the House of Commons—
Sir William Cash: For the time being.
The Chair: Whichever is the Government will have a majority in the House of Commons most of the time, but would you agree, however, that some sort of mechanism that forces the Government to expose these issues on the Floor of the Chamber has a salutary effect on the executive in the first place in what and how they negotiate, because they know they are going to have to expose it in that way?
Sir William Cash: That is very consistent, if I may say, with my Section 29, which, at that time, up to the end of the implementation period, would have enabled a proper motion from the European Scrutiny Committee to end up by making a decision on the Floor of the House, but I will not go into that again.
The Chair: That is very helpful. Thank you very much indeed.
Q111 Baroness Smith of Newnham: Just as others have been expressing their links with some of the witnesses, I should perhaps say that I feel as if the tables have been turned slightly. Wearing my academic hat, I was involved some years ago in a project looking at national Parliaments and European scrutiny, where we were looking, in part, at both the then House of Lords European Scrutiny Committee and the European Scrutiny Committee of the House of Commons. I was summoned by Sir William to give evidence to that committee.
There is one thing that I am slightly worried about, and it is not on the paper here. Lord Kinnoull, you have been suggesting we might look very closely at what the Swiss are doing. One of my concerns is another aspect of democracy. We are talking here about parliamentary scrutiny, and yet something that came up when we were taking evidence from the ambassadors of Switzerland and Norway was precisely the role that Swiss voters can play. Sir William might think this is very useful, but there are all sorts of veto points where we might end up with referenda if we took a Swiss model. Can I assume that that is not something you would be advocating?
The Earl of Kinnoull: No, I would not want to fiddle around with our own internal things. We do have a problem with the devolved entities—both the Governments and the Parliaments—in bringing them along. Certainly, for things such as the Parliamentary Partnership Assembly, we were very keen indeed that they should be included. In fact, they have been included since day one. They cannot speak in things, although they do, but they can turn up and be involved in that.
Certainly, we were very keen indeed that you should have things such as staff secondments, so that there was a feeling from the devolved civil services, the devolved Governments and the devolved Parliaments that they were being brought along with various of the international things.
I would hope very much that, on each of the inter-ministerial groups, when they meet, which is not very often, there are agenda items that would allow for discussions of things along these lines. I hope that is helpful, but I am not, in any way, advocating that we end up with lots of mini-referendums or give powers of veto to anybody at all. We have our own internal arrangements constitutionally, and we must bring them along with us.
Baroness Smith of Newnham: Thank you. Do you feel that the current arrangements between the UK Parliament and the devolved Parliaments are adequate if we are going to be resetting or reconstituting our relations with the EU, or should we be looking for revisions to the way we co-operate, particularly if we are putting forward proposals in this report?
The Earl of Kinnoull: You have asked a question about the Parliaments. As I said, it is important to also remember the Governments. The Parliaments are quite weak things. There are not very many members and not many staff, and they often do not have a lot of expertise and experience in international affairs, because it is not a devolved competence. It is very important to remember that in expecting them to do too much in terms of scrutiny and things such as that.
Clearly, there will be things where there is direct scrutiny. If it was an agriculture thing that came through—and all of the Parliaments have agriculture competencies—they would be interested, but one has to respect the fact that they are bound to have resource constraints, to pre-digest lots of stuff for them, and to bring them in when it is going to be in their competence area.
Sir William Cash: I will say one thing on the scrutiny of the devolved Administrations. The last thing I did as chair of the European Scrutiny Committee was to go to Northern Ireland. I attended the first ever meeting of the committee that had been set up. I have to say that I have no confidence whatever in the Stormont brake. I could enlarge on that, but I am afraid it does not really work, as, indeed, with so many of these things. They look good on the surface, but, as I said, the road to perdition is paved with good intentions. The fact is it does not work because there is a lack of democratic decision-making by ordinary people.
I do not know whether you are interested, but I am very happy to put in these papers. I have gone to some trouble with some of them. I have stuff on a memorandum on dynamic alignment, which is a general survey of it, and also on decision-shaping, which you may find interesting. I am very happy to put that in if you would just like to look at it. It is not the Bible, but it does express what I really feel in more coherent, precise language.
The Chair: We would be very grateful. Thank you very much.
Q112 Lord Moynihan of Chelsea: Thank you, both, for coming and spending your time with us this morning. We have had a really interesting morning, and Sir William has sat through it all. Earl Kinnoull, you may have to take my word, at least pro tem, if I characterise any of it. We started off with CRaG, which we learned was somewhat limited in that it will allow scrutiny of the entry of dynamic alignment itself, but, thereafter, CRaG falls away. You have said that you find that very unsatisfactory.
The question that then comes is how we will scrutinise this going forward, post that law going. Parliamentary select committees were named by some as the best way to go forward. Sir William has implied that it will not do you any good unless you have some kind of sovereign veto. We had some very interesting input earlier about having a veto and whether it would be useful and so forth, but Sir William has implied that that is for the birds. Your phrase was the idea that somehow there will be wriggle room around this is not going to happen, and that decisions take place behind closed doors.
We did talk about the scrutiny abilities of Parliament, and there is a general agreement that it is a shame that the Commons select committee has been pushed aside and that it is very important for that to be revived if we are going to go forward with a system of dynamic alignment. There is also all this talk about a sifting committee, and we got different views as to whether that would be useful. In general, it was thought that there would have to be some form of sifting against the avalanche of rules that we are going to have.
All of that said, and whatever the view is as to how useful this or that committee or whatever is going to be, in practical terms, how should we recommend that the process of developing a system for scrutiny of dynamic alignment be put into place to be taken forward?
The Earl of Kinnoull: The first thing I would say is get going early. What one does not want to do is to sign up to an agreement and then start trying to retrofit the scrutiny process. One needs to design the scrutiny process and be able to present that as part of what the UK offer is to the people we are negotiating with. That is incredibly important, because, as I said, both of the scrutiny processes in the Commons and the Lords were widely respected in Brussels. Certainly, in the negotiations, for instance, we may well want to point out that our staff at UKRep, which is now called UKMis, would want to be included in certain meetings and things like that, so there are a whole lot of reasons for getting going early.
Secondly is the clarity point, in that the clarity of how we operate is important. At the moment, our clarity point is the latest letter from the Minister of the Cabinet Office. As I said, the scrutiny reserve resolution is a wonderfully public thing. You could mark it up and easily get in it to where Sir William is in terms of having an absolute veto in Parliament, or you could get where I would like to get to, which is, as I said, some mechanism of constraint, which would be a bit stronger from where the scrutiny reserve resolution was before. It is very important that it is a resolution of both Houses and not some sort of cosy letter that can be replaced. We are on the third letter already. It is a public thing and an expression of the will of the whole of the UK Parliament: “This is how we want things done”.
The final thing is that you need to get the resources up early. We are lucky. I am looking at one of our key resources just over there in Mr Mitchell, who is an exceptional resource for us. We need to build back the resources to be able to do this effectively. Within the Commons, of course, the resources have gone to the four winds, so it is going to be a longer process for them to build back the muscle memory of how to do this type of scrutiny—I am now talking about the scrutiny of once you are inside the machine—but I will probably leave it there.
Sir William Cash: On scrutiny reserve, it was a waste of time, frankly. I am talking about in the House of Commons. I do not know what happens in the House of Lords, but I do know what I am talking about in the House of Commons. It had no effect whatever. Things would, for example, go ultimately to the European Standing Committee. It may be of some interest to know that, between 1973 and 2020, not one single word, let alone line, of any European legislation was ever rejected or amended in the House of Commons—not even a comma—which gives you some idea.
In terms of the scrutiny process, I think I am right in saying that, in the House of Commons, whatever procedure you come up with, whether it is delegated powers or secondary legislation committees or whatever, the last time anything was ever rejected was, I believe, in 1979 and, in the House of Lords, in 2000.
In terms of the practicality of resisting the tide of European legislation, given what the “Common Understanding” says, which I have referred to already—that we are not going to be involved in the latter part of the procedures anyway—we will not be at any table. I am not encouraging people to go to a table. I am simply saying, “Face up to the facts”, which is that this legislation, which, to my mind, has no merit whatever, will end up by being rammed through Parliament through the European Partnership Bill because they have such a large majority. It will have no merit.
Q113 Lord Jackson of Peterborough: From a slightly different angle, would you agree that, during the Brexit negotiations between 2017 and 2020, there was enhanced scrutiny via the Brexit select committee? Ministers were required to attend. I know from the other side that we had to scramble quite often not just for statements in the Commons and Urgent Questions, but before Hilary Benn as chair of the Brexit select committee. If the government whips are not permitting significant time in the Commons for proper scrutiny, should there be an enhanced power to summon Ministers directly to committees such as this one to answer questions? Might that be a better way of ensuring democratic accountability and parliamentary sovereignty?
The Earl of Kinnoull: I absolutely believe that, and that is why, within the three letters, there is always a section called “ministerial appearances”. One of the very unsatisfactory things was always the flakiness of getting Ministers in front of this committee, for instance, which always led to a discussion with the Leader of the House. It went round and round, but then having a written agreement about which Ministers and how often has made the whole thing a lot smoother. It should certainly be that.
In terms of the nature of the relationship between the Lords and the Commons, I had interactions with Sir William, which I much enjoyed. I also had interactions with Hilary Benn, which I much enjoyed. The net effect of the arrival of the Hilary Benn committee, I am sure, was an increase in the amount of scrutiny during a very difficult period, and so I am in favour of that, but my new scrutiny reserve resolution would take the letter where it is today and add into it this mechanism of constraint, which I realise I have been a bit vague about, but I am probably still cogitating on what it consists of.
Sir William Cash: On the question of ministerial accountability, it is all very well having Ministers in front of you, but, in practical terms, I have even had a situation in which one Minister—I had better not mention who it is—in quite recent times, declined to appear in front of my committee about four times. I had to go to the Speaker on the Floor of the House of Commons with, effectively, an Urgent Question, and that person did appear in front of the committee eventually.
The truth is that we can have discussions. In the Brexit committee, a lot of interesting discussion took place, but, ultimately, the committees and the scrutiny process is only scrutiny; it is not legislation. It is not in fact making decisions. It is coming up with reports, and sometimes they are extremely good and a lot of diligent work goes into them, but, ultimately, the test is what is in an Act of Parliament. In our unwritten constitution, that Act of Parliament is at the zenith of the decision-making process.
In terms of the Supreme Court, in paragraph 144 of the Rwanda judgment on the immigration and asylum case of MSM, despite what everybody seems to believe, Lord Reed, the President of the Court, said that it is the duty of the court to give effect to a completely clear and unambiguous piece of legislation and dismissed the asylum seekers claim. That is the zenith of our parliamentary system. In terms of Acts of Parliament and an unwritten constitution, we are quite different to all the other countries. I would simply say that it is a very good system. I do not need to add to that.
Q114 Lord Moynihan of Chelsea: Just as a final point, if one goes to Sir William’s line of thinking and, indeed, building on what Professor Hestermeyer, a witness earlier today, told us, he described a system whereby, if Parliament is determined not to go along with a law that, under dynamic alignment, they are supposed to go along with, they end up at the ECJ. If they do not like the ECJ, they are required to break an international treaty, which I remember, in past years, was a matter of much dismay in the Commons. Is it correct, to the point that Sir William was making about parliamentary Acts, that they do not succeed unless you choose to break your international treaty?
Sir William Cash: Yes, and, furthermore, there is a complete myth about international law in relation to the United Kingdom in terms of the unwritten constitution. It is absolutely, categorically the case—and no one has ever disputed my argument on this—that we can, if necessary, override international law where the legislation is clear and unambiguous.
Interestingly, Lord Falconer, that great Member of the House of Lords, was on the Constitution Committee when we were looking at all these things, and it was unanimously agreed by everybody that we could override international law, providing it was clear and unambiguous.
The word “notwithstanding”, I have to say, is a part of all this, which I coined some years ago. Even in 1986, it was in that Sovereignty amendment which I tabled. I have to say its origins are perhaps more interesting. It goes back to the 17th century and the Indemnity and Oblivion Act, when, after the Restoration, there was a very important moment. The King insisted to have his own way with the regicides, and the word “notwithstanding” appeared seven times in that enactment. It is a completely clear way of overriding legislation that already exists, and all the Cromwellian legislation was repealed.
The Earl of Kinnoull: I would just mildly disagree with that analysis, and I am sorry for that. The thing is that, if we have gone into a dynamically aligned agreement and we refuse to then enact a particular thing, you then enter the dispute resolution mechanism.
Lord Moynihan of Chelsea: Are you saying that ends up with you at the ECJ?
The Earl of Kinnoull: The Swiss have not signed up to the ECJ.
Lord Moynihan of Chelsea: They are going to.
The Earl of Kinnoull: We do not know that yet.
Lord Moynihan of Chelsea: So we should argue strongly against doing so.
The Earl of Kinnoull: You need to enter a dispute resolution mechanism that is something that both sides can sign up to. Signing up to the ECJ to resolve a dispute would seem to me to be quite a spicy thing to do in what we plan to be doing.
Q115 The Chair: Is it not the case that, so far in the things that we have been negotiating, reversion to the ECJ would be to determine points of European law, not whether the two sides had a political disagreement about whether something should be implemented?
The Earl of Kinnoull: If we disagree with the arbitration committee, then it goes on to the ECJ.
The Chair: As the Earl of Kinnoull is saying, it depends on what we write in the agreement in the first place.
Sir William Cash: The basic point, surely, is that EU lawmaking itself in the Council of Ministers is absolute. They do it without a veto, and there will be no change in that. On the other side, when it comes to arbitrations and the like, if you involve the ECJ as an EU lawmaker, which used to be Section 3 of the European Communities Act 1972, which gave complete carte blanche, even over constitutions—cases such as Costa v ENEL and Internationale Handelsgesellschaft gave priority over constitutions of all the member states—that is all gone. We have abolished the supremacy of EU law in the Retained EU Law (Revocation and Reform) Act 2023 and its method of interpretation.
If I may say, we are talking not at variance, but the legislation that has already been passed puts us in a completely different place, and it would be at least honest of the Government to say, “We are going to tear up all the things that obstruct the making of EU law and its complete and total domination over our sovereignty”.
If they could say that, at least there would be a straightforward argument. I am not encouraging them to do so, because I know that they dare not, but the reality is that that is what the underlying problem really is all about. We have left. We have repealed the 1972 Act. We have abolished EU law. We have abolished the supremacy of EU law. The question is what they are going to do about it, and that is really what we are discussing today.
The Chair: On that note, I would like to thank our witnesses, the Earl of Kinnoull and Sir William Cash, for a really interesting and most informative session. We are enormously grateful to you for sparing us the time. You greatly aided our deliberations. With that, I bring the public session to a close.
