Criminal Legal Aid
Dominic Grieve Excerpts(6 years ago)
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Lucy Frazer
My hon. Friend makes an extremely important point, which is at the very heart of this debate. The old system is not supported by the Bar. It did not want that system. The new scheme is an improvement, so the answer to my hon. Friend’s question is that the Labour party is simply playing politics with an honourable and important profession.
Mr Dominic Grieve (Beaconsfield) (Con)
As the Minister knows, there is a continuing funding crisis at the Bar. The reality is that at some point the Government are going to have to face up to the very great difficulties facing the justice system. That is not the fault of my right hon. Friend the Lord Chancellor; it is the situation he inherited. I have to say that I am in complete sympathy with the stance that my hon. and learned Friend is taking this evening. The scheme was wanted by the Bar and it is clearly an improvement on the previous system. Granted there are very great difficulties with funds, but it seems entirely reasonable for the Government to proceed with it.
Lucy Frazer
I thank my right hon. and learned Friend for his intervention and recognition that this scheme was wanted. I hope I have conveyed that the Lord Chancellor and I recognise that where there are difficulties in the criminal justice system we will seek to ensure that we have the best possible criminal justice system and legal system. The scheme, which we are voting on today, is the right scheme going forward. The proposal that it should be revoked and annulled is disadvantageous to the Bar and is simply politics.
Worboys Case and the Parole Board
Dominic Grieve Excerpts(6 years, 2 months ago)
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Mr Gauke
The point about victims is very important. The right hon. Lady will be aware that Dame Glenys Stacey undertook an immediate review of the facts in this case. There is clearly a lot to learn about how victims are treated. In this particular case, the fact that victims were receiving information from the media rather than being contacted directly is not something that we want to see repeated. She is absolutely right to raise that point.
On the MOJ’s position, as I set out in my statement, there is much more that we can do to ensure that information on things like sentencing remarks should be provided as part of the dossier consistently and as a matter of course. Clearly, there were failures in this regard. That is partly why my position in bringing a judicial review was weaker than that of the victims, because they were able to make these arguments in a way that was not open to me. We need to find ways in which we can make improvements across the system. I stress that the national probation service was clear that it did not think that Worboys should be released.
Mr Dominic Grieve (Beaconsfield) (Con)
First, may I say to my right hon. Friend that the criticisms of him for not bringing the judicial review are entirely misplaced? He was in no position to do it. Indeed, it is likely that had he chosen to do it, it would have failed, and having failed, it would have prevented anybody else, within the time limit, from going ahead and bringing such a judicial review.
On the wider issue, my right hon. Friend may agree that the problem we have—those of us who have attended meetings of the Parole Board as observers can see this—is that the workload has grown exponentially with the rise in indeterminate sentences. I really do wonder whether we now have a proper process in place for dealing with this kind of case where there is public concern as to when the moment of release is finally determined. May I urge him, in carrying out his review, to consider that he may want to come back to Parliament to have this issue debated to determine what Parliament thinks should be the appropriate way of proceeding, because this is now a quasi-judicial process with immense consequences for victims, but also of course for those who are incarcerated and are seeking to be released?
Several hon. Members rose—
European Union (Withdrawal) Bill
Dominic Grieve ExcerptsWednesday 13th December 2017
(6 years, 5 months ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 13 December 2017 - (13 Dec 2017)
Mr Dominic Grieve (Beaconsfield) (Con)
The right hon. Lady might agree with me that what causes more consternation overseas among those observing what is going on are the signs that we as a Parliament and as a Government seem from time to time to completely lose our marbles and get involved in polemical arguments that are far removed from the actual matters that we are supposed to be discussing.
Yvette Cooper
The right hon. and learned Gentleman is exactly right, and I will defer to him to set out his amendment and describe its impact. The idea that we should make a confidence issue out of every single adjustment to the Brexit process or to the withdrawal Bill is just nonsense.
If we have a Bill before Parliament, it has to be possible for Members of Parliament to table amendments to it and to vote on them. In a hung Parliament, that is even more the case. The Prime Minister asked for a mandate to do all this her own way, but she did not get it. She got a hung Parliament. That puts even more responsibility on us all to work together to find something that will build consensus across Parliament and across the country. In a hung Parliament, the Government sometimes lose votes because Parliament has to do its job to build the right kind of consensus and to get the right kind of outcome.
In the end, this is all about Parliament and democracy. Each and every one of us has a responsibility to our constituents not to hand over, share or give up our authority and our sovereignty, but to exercise our responsibility to get the very best deal. For centuries, Members of Parliament have fought tooth and nail to defend democracy and the powers of Parliament against Executive power. We cannot be the generation that just rips that up and hands over all the power to the Executive. We have a responsibility—now more than ever, given the gravity of the decisions before us—to use that power responsibly and to try to build consensus. To be honest, if the Government cannot build a broader consensus in Parliament, there is no chance of their building a broader consensus in the country, and if they cannot do that, we will end up with everybody rowing over the Brexit deal for a generation to come. For the sake of all of us who want to get back to discussing our schools, our hospitals and all the other issues that face our Parliament, I urge Ministers to accept either amendment 7 or new clause 3, and to start trying to build a consensus that can get us a sustainable Brexit deal.
Matthew Pennycook
I will make some progress, I am afraid, because a number of hon. Members wish to speak. Perhaps my hon. Friend the Member for Vauxhall (Kate Hoey) will do so.
New clause 66 would ensure that there is a vote on a motion, not just in the event of a withdrawal agreement being concluded, but, crucially, when no such deal has been concluded, should that be the case. That outcome appears less likely following the agreement the Government reached last week and the clarification that the default position in the event of no deal will be regulatory alignment, but it remains a possibility, and Parliament must have a say.
As I have said, there are many, many ways of ensuring that Parliament has a meaningful vote. Amendment 7, tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve), is very well drafted. I do not think that it is deficient. We would definitely support it and we would not press new clause 66 if he pressed it to a vote.
Matthew Pennycook
I am very, very pleased to hear that. We will support the right hon. and learned Gentleman and the amendment in that eventuality.
I will conclude by saying that, subject to the kind of constraint that would be put in place if amendment 7 were incorporated into the Bill, we remain of the view that the power to appoint an exit day for the purposes of the Bill should be placed in the hands of Parliament, not Ministers, and also that the flexibility inherent in clause 14 with regard to exit day should be retained, because it is essential to finalising in some scenarios a withdrawal agreement and any transitional arrangements that need to be agreed to. We need only look at the mess last week to justify the need for such flexibility. As such, we believe that amendments 381 and 382 tabled by the Government with the aim of putting a specified exit date, and indeed time, in the Bill are an ill-conceived and unnecessary gimmick and on that basis we intend to oppose them if they are pushed to a vote.
This whole debate is about whether right hon. and hon. Members are content for Parliament to be a spectator, a passive observer, of one of the most important decisions that has faced our country in generations. Parliament must have a grip on the process, which is why we have tabled our amendments and new clauses.
Mr Grieve
I am most grateful to have the opportunity to participate in this debate and to follow the hon. Member for Greenwich and Woolwich (Matthew Pennycook). I agreed with virtually every word that he said.
In speaking to amendment 7, in the name of my hon. Friends, myself and other hon. Members, I am conscious that it has taken on a life of its own. When the Committee stage of the Bill started, it was my intention—and I hope one that I have observed and honoured throughout—to try to approach the amendments that I tabled in the spirit in which they are intended, which is to try to improve difficult legislation while entirely recognising the many challenges that the Government face. Brexit is full of risk and full of complexity—legal and otherwise—and the Government are entitled to my support, wherever possible, to carry Brexit out as smoothly as they can and with the least impact on the well-being of the citizens of our country. That has been my aim throughout.
I very much regret that—as often tends to happen in these matters—while some sessions in Committee have led to sensible amendment and the Government considering matters, or going away to look again and making some helpful suggestions, in the case of amendment 7 we seem to have run out of road. What happens in those circumstances, I regret to say, is that all rational discourse starts to evaporate. The purpose of the amendment, the nature of it, is entirely lost in a confrontation in which it is suggested that the underlying purpose is the sabotage of the will of the people, which it most manifestly is not. That is then followed by a hurling of public abuse; large numbers of people telling one that one is a traitor; and, I regret to say, some of one’s hon. and right hon. Friends saying slightly startling things. My right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith), for example, said that I am grandstanding, when I do not remember ever having suggested such a thing to him about the way that he has expressed his views on Europe at any time in his career—including, I might add, when I tried to be a loyal member of his team when he was leader of my own party.
Mr Baron
My right hon. and learned Friend will know that I have never participated in any of that sort of language. May I gently put it to him that amendment 7 leaves open at least the possibility that, given that the EU does not want any member to leave and that there is therefore no incentive for it to negotiate a good deal that would be acceptable to this Parliament, we could find ourselves in a permanent state of limbo, deadlocked in unproductive negotiations?
Mr Grieve
I note what my hon. Friend has said and I am very grateful to him for the way in which he put it, but I happen to disagree with him. If he listens to me he will understand why I think that I am right on that point.
The consequence is that we completely lose sight of what the key issues are, and if I may say so before I move on, that matters a lot, because in the course of this, we also lose sight of the fact that we are the Parliament of a deeply divided country on this issue. When I go and lecture to sixth-formers occasionally and talk to them, I point out that the parliamentary process is not just about the imposition of the will of the majority on the minority; it is the process by which we obtain consent for what the majority chooses to do.
The difficulty with this referendum is that, having invoked the public will, which, I regret to say, is not entirely tempered in its expressions of view by some of the courtesies that we extend to each other here, we run the risk of losing sight of the fact that 48% of the electorate did not wish for the policy that we are currently pursuing and have deep concerns about, not trying to reverse it, but the extent to which it will have an adverse impact on their well-being, and request us as a Parliament to pay as much attention to what they are saying as we undoubtedly have to do to those who voted in the referendum and said that they wanted to leave. The most worrying aspect of the debate, as it has progressed, is how we become polarised and so fixated on ends that we fail completely to look at means. We look at the top of the mountain, but not at where we are going to put our foot next. As a consequence, we run serious risks of badly letting them down—all of them, collectively—by enacting bad legislation and taking very foolish decisions.
Of course, when this confrontation comes along, the negotiations immediately stop, the conversation ceases, the Government’s steamroller is invoked, and the atmosphere can suddenly get really quite unpleasant; and I regret it. As a consequence—I will come back to this in a moment—I have to tell my hon. Friends on the Treasury Bench that I think they have lost a series of opportunities in the dialogue we have had on this to come to a sensible outcome. With that, I turn to the issue that is, in truth, under debate.
Paul Farrelly
Is not the advantage of the right hon. and learned Gentleman’s very helpful amendment that it would give certainty? It would nail down, in black and white, what we have agreed and would place a legal responsibility on the Government. We would then avoid a situation whereby what people think has been agreed simply becomes a statement of intent within a matter of hours and days.
Mr Grieve
I agree with the hon. Gentleman. I hope that I will be able to develop some of those points in a moment.
As was rightly said by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), the Government had a notion when this debate started that it was possible to pull out of the European Union by use of the royal prerogative. Fortunately, time, common sense, debate and a small amount of judicial intervention has pointed out that that is not possible. As a consequence, my hon. Friends on the Treasury Bench have correctly begun to understand that in fact there has to be a proper process. I appreciate the points that have been made about a meaningful vote and how we can actually get that in the context of Brexit; it is a real, live issue. Nevertheless, I greatly welcome the written ministerial statement, which sets out what appears to be a constitutionally tenable process for Parliament approving or considering the deal by motion, and then moving on to implement the deal by primary legislation.
Of course, the Government know that they must proceed by primary legislation because, in view of the comments during the Miller case, it is blindingly apparent that there must be a serious risk of legal uncertainty if anything other than a statute were to be used to take us out of the EU at the end. That is the last thing that my right hon. Friends on the Treasury Bench should want, because that will cause even more trouble and difficulty than they already have in the challenges they have to face.
Mr Rees-Mogg
I hope that my right hon. and learned Friend will forgive me if I appear pedantic, but does not this Bill and the enactment of article 50 take us out of the European Union at the end, whereas the withdrawal agreement and implementation Bill legislate for the consequences?
Mr Grieve
Yes. If, indeed, we were leaving with nothing further to do, that might be a good point. But it seems to be a pretty universal view, even on the Government Benches—although this perhaps does not apply to my hon. Friend—that simply leaving to jump off the top of the tower block is not the best thing to do. Therefore, there will need to be primary legislation to implement the undoubted new constitutional order that we will have after 29 March 2019.
Alex Chalk (Cheltenham) (Con)
Will my right hon. and learned Friend give way?
Mr Grieve
May I just make a tiny bit more progress?
As the Government’s position has shifted, they have come up with a written ministerial statement, which seems accurately to reflect the right direction of travel. But the difficulty is that clause 9 is entirely incompatible with what the Government have set out.
Sir Oliver Letwin
I happen to agree with my right hon. and learned Friend that it would be undesirable for us to leave without an agreement. Indeed, I think that the Government agree with that. But I will go back to the point made by my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) a moment ago. Does my right hon. and learned Friend agree that, in the event that it were not possible to reach a further agreement, it would then be the case that the actions of Parliament already taken—including in triggering article 50—would constitute a proper answer to the Supreme Court’s point that Parliament, and Parliament alone, can remove us from the EU?
Mr Grieve
Yes, I think I agree with my right hon. Friend that the action of Parliament in triggering article 50 would do that. But it is not, I think, the intention of the Government to do any such thing, and never has been. Indeed, if it is the intention of the Government to do such a thing, I hope very much that they will tell me as soon as possible, because I think I might be withdrawing my support from them.
Mr Jonathan Djanogly (Huntingdon) (Con)
Is not the point that, everything else being equal, even if nothing else happens, article 50 has been triggered so we are leaving the European Union on a set date, unless 27 other countries decide to extend the date? Therefore, this argument is about the UK’s internal process. It is not a question of the EU or anyone else holding things up.
Mr Grieve
There are a series of processes. I do not wish to get too diverted from my main point. We are intending, and will require, a further statute in order to achieve what the Government have set out. I hope very much that we do not leave with a no deal on anything, because we would not be able to fly off to Rome on the day after, we would have no security co-operation and we would, indeed, be mired in complete and utter chaos.
The reality is that clause 9 is incompatible with the programme that the Government have set out. At the time that clause 9 was inserted, I think that the Government had not yet fully worked out the implications of how withdrawal had to take place.
Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)
Will the right hon. and learned Gentleman give way?
Mr Grieve
In a moment. I do not wish to take up too much of the Committee’s time.
My point brings me to the specifics of clause 9, which is an extraordinary and wide power to remove us from the EU by statutory instrument, and moreover—this is the most telling point—to ask the House to give the Government effectively a blank cheque to draft statutory instruments to achieve something when at the moment we do not know what that is.
Mr Jenkin
I am listening very carefully, but clause 9 is not about implementing our leaving the European Union; it is about implementing a withdrawal agreement. My right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) did not vote for article 50, but my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) did. That is when he voted to leave the European Union and that is decided, so he is incorrect to say that clause 9 is deciding when or how we leave the European Union.
Mr Grieve
If I may say so, I think my hon. Friend has misunderstood what I said. The fact is that clause 9 provides a power, exercisable once this Bill comes into force before exit day, to implement something when we do not at present know what that is. Therefore, it is a very strange thing to ask Parliament to sign off.
Angus Brendan MacNeil
Is not the supreme irony the fact that clause 9 is actually the child of article 50 of the Lisbon treaty, which the Government are now supporting? This provision is the Lisbon treaty timetable. It is not in any way trying to give power or control back to this House to amend that in any way or to ensure that the UK leaves the European Union at the time that is fortuitous. The UK is just accepting what is in the Lisbon treaty and the Government have welded themselves to that very idea.
Mr Grieve
The hon. Gentleman makes a good point.
Ultimately, the centre of this point is that we are being asked to give the Government a power that can be exercised on something, but we do not know what that something is. Logically, the moment to make the statutory instruments to enact our withdrawal would come when we have this further statute—whatever it happens to be called—and have debated it in this House. We will then have structured the powers conferred by statutory instrument to achieve what Parliament wants and thinks is necessary to carry out withdrawal. That is the point, and pre-empting matters in this fashion is odd. Indeed, it is so odd that I heard one Minister—I will not reveal who—informally saying that they questioned whether the clause 9 power was in fact still needed, in view of how the Government were progressing this matter.
Mr Grieve
In a moment.
On my key issue and what I was trying to tease out in tabling amendment 7, I could, I suppose, have simply said that I will not support clause 9. Indeed, if my amendment is not accepted, I am afraid I shall be voting against clause 9 this evening—I have no option—but rather than do that, the purpose of my amendment is to try to explore what it is that the Government want clause 9 to do that, in fact, we should not be doing when we enact the legislation at the end.
It is for the Government, in those circumstances, to explain themselves; it is not for Parliament simply to roll over and accept something because the Government say that that is what we should do. Indeed, if we all get told that we must support the Government out of loyalty because to do otherwise would undermine the Prime Minister—I think that is cuckoo, for the reasons given by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper)—we need to know why.
Last week, I engaged in a whole series of dialogues with the Government, trying to understand what was bothering them. At one point, I thought we might be getting to the point where we would reach an agreement that some power might be needed in the Bill before we came to the final Bill, although I will come back to that in a moment. It started to dawn on me that one possibility was that this power might be exercisable, but only provided it could not be used to bring anything into force—we might lay some statutory instruments, but they could not be brought into force in any way until the end statute had been passed.
That is where I thought we might be—and then everything closed down, and I am none the wiser why the Government need this power, except that I note that a journalist who seemed to have been speaking to a briefing was told it might be required to effect the registration of EU citizens. I thought to myself, “I thought we were going to have an immigration Act to do that.” So I am still at this moment—this afternoon—absolutely at sea about why this power is needed. If the Government cannot make a case for this power, it should not be here.
Even at this stage, I say to my right hon. and hon. Friends on the Treasury Bench, if they accept this amendment, which is absolutely central and necessary to ensuring that a power of this scope cannot be abused in a way that the House should not tolerate, and if they want to come back on Report and tidy it up because there is some adjustment or some caveat they want to put in, I will of course listen to what they want to say—my job is not to make their lives more difficult—but I am not prepared to sign away such an extensive power, when it appears to be contrary to the Government’s stated policy on how Brexit will be carried out and, in fact, surrenders without any good reason the control of this House over how the Government conduct Brexit.
John Redwood (Wokingham) (Con)
If my right hon. and learned Friend’s version of what our vote would be were to prevail, rather than the Government’s version, what would happen if, close to our leaving date, Parliament voted against any agreement there might have been and against no deal?
Mr Grieve
Ultimately, as my right hon. Friend knows, this Parliament is sovereign, although its sovereignty does not extend to concluding agreements with other parties in international relations that the Government do not wish to adhere to or sign up to. I have no idea what the circumstances are going to be in 12 months’ time. I agree entirely with the hon. Member for Greenwich and Woolwich: we are dealing with a whole series of hypothetical questions. I get a bit fed up when I keep on being asked, “What is it? Surely, it is a choice between the deal on offer and no deal.” I do not know. There is no way that any of us can know, and that is why the process matters so much. If we get the process right, we will answer correctly each question as and when it arises. Far from that hurting or damaging the Government, it will enhance their power. To come back to the point I made in an intervention, it will convey an impression of purpose and method to our EU partners in negotiation, whereas, at the moment, the major thing that has been undermining our negotiations is the impression of chaos in our procedure and our aims.
Sir William Cash
I am extremely intrigued by the line that my right hon. and learned Friend has taken, with which I largely agree in relation not to the substance, but to the deficiencies he now seems to have accepted could, in some shape or other, be tidied up, as he put it, on Report if we were to get to that unfortunate situation. I simply ask him: is he able to elucidate how his amendment would actually work in practice?
Mr Grieve
I have been pleading with the Government throughout the past four weeks, pointing out to them that this is a really important amendment, and asking them please to respond to it. I have asked them what alternative they might have that could persuade me that they had a working proposal that should command the approval of the House and my own approval. I have been doing that repeatedly, and I was striving to achieve those things last week, but the blunt reality is—I am sorry to have to say this to the Committee—that I have been left in the lurch as a Back Bencher trying to improve this legislation, because silence has fallen. There has simply not been a credible explanation. The last explanation was, “Here is your written ministerial statement. That ought to be enough for you. In loyalty, you should now support the Government.” However, that does not answer the question.
Anna Soubry
Has my right hon. and learned Friend also looked at this issue: does he think that, should the Government decide that the best deal is the European Free Trade Association—we would effectively be Norway—some right hon. and hon. Government Members have worked out that, without his amendment or the new clause moved by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), this country would become like Norway and go straight into EFTA, without this Parliament having a say on whether that is what leave meant?
Mr Grieve
It would indeed be a remarkable outcome. Certainly, I think that Parliament ought to have a say. Those reasons highlight the difficulty of clause 9. There are other difficulties with the Bill, but clause 9 really has it.
I want to bring my remarks to an end, and I simply say that I do want the Government to listen. The opportunity is here for them to accept the amendment and then to come back on Report and explain themselves further or to tidy the amendment up, and I will listen and try constructively to help them if, indeed, any of this power is needed, but I am not prepared to sign off clause 9 in its present form.
The one merit of amendment 7—I tailored it very carefully and I tried quite deliberately to avoid the no-deal scenario, which is a very legitimate issue, but it is not what I went for—is that I wanted to make sure that these powers could not be used to pre-empt a statute that we should probably be considering this time next year. It is plainly wrong, and if it is to be departed from, the Government have to provide a credible reason for it.
Alex Chalk
May I ask my right hon. and learned Friend about a point I am struggling with and that others may be struggling with, too? On the one hand, given that the Government have conceded that there will need to be a statute to implement any agreement, it is difficult, for me at any rate, to see what the point is of clause 9, and Parliament should not legislate in vain. That is point one. On the other hand is the key point not that we will get a vote on that statute, so does this really matter? That is the part I am struggling with, and I would very much welcome my right hon. and learned Friend’s views.
Mr Grieve
I think that this does matter. If I understand the reason why the Government want this power, it is that, at the time when we may be considering the next statute, they will also be pushing through this House statutory instruments setting up structures for our departure from the EU that may be, or that we might consider to be, at variance with what we need in the fresh statute that we are considering. I think that that is a form of constitutional chaos, actually. I cannot see how it produces any clarity at all. For that reason—a reason of good process—this is a mistaken course of action, particularly because it is not necessary.
We have heard the argument, “We’re going to run out of time in leaving the EU.” I simply repeat what I have said previously. I realise that this is hugely objected to by some of my right hon. and hon. Friends because they are so fixated on getting us out. The article 50 mechanism provides for a sensible structure to enable us to leave smoothly, yet for reasons that I do not understand, the aim of some of my right hon. and hon. Friends seems to be to mess it up as much as possible. There is the famous amendment 381, for example, which we are going to come back to next week and which I have already indicated I will not support under any circumstances whatsoever. If we actually stick to a sensible process, I say to my hon. Friend the Member for Cheltenham (Alex Chalk), then we will get the right answers. As I say, if the Government are to justify keeping clause 9, they have to provide us with chapter and verse—and they simply have not done so. I have asked, and I have not had it.
In those circumstances, the only proper course of action—I say this with the greatest reluctance—is that I am going to have to vote for my amendment, and, if necessary, if it is not passed, I will vote against clause 9, because without my amendment, clause 9 becomes a really very worrying tool of Executive power that does not appear to have any reasonable presence in this legislation. Apart from on HS2, I do not think that I have ever rebelled against the Government in my 20 and a half years in this House. I do find it quite entertaining that some who criticise me for speaking my mind on this matter are individuals who appear to have exercised the luxury of rebellion on many, many occasions. But that said, there is a time for everybody to stand up and be counted. As Churchill said, “He is good party man—he puts the party before himself and the country before his party.” And that is what I intend to do.
Several hon. Members rose—
Sir Oliver Letwin
I think that is a very possible eventuality, which takes us back to our earlier discussion. I certainly agree that if, upon a resolution, the House refused to accept the withdrawal agreement suggested by the Government and agreed by the EU, it is very likely that the Government would go back and try to renegotiate it, and it is very possible that they would succeed in doing so. I do not deny any of that. My point is that amendment 7 would not force that result, because all it would do is, under certain circumstances, stop certain kinds of orders being issued under this Bill.
Mr Grieve
I picked this amendment with some care, precisely because I wanted to avoid the suggestion that by tabling it I was trying to sabotage Brexit. I was trying to prevent the potentially abusive use of a power in clause 9 when the Government were saying that they were going to do something different. That was the purpose behind the amendment. It was also, if I might say so, to prod the Government into responding, which I very much regret they have failed to do.
Sir Oliver Letwin
I am delighted by my right hon. and learned Friend’s intervention, because I agree that he has succeeded in doing that. He has not created the so-called meaningful vote that the right hon. Member for Leeds Central and the Opposition want. He has instead pointed out an issue with the use of the order-making power in this Bill. The question is: is it a good amendment in those terms? We have accepted that it is not a question of creating or not creating a meaningful vote, to use the term used by the right hon. Member for Leeds Central, but just a question of trying to get the Bill into good order—a pursuit in which my right hon. and learned Friend the Member for Beaconsfield and I have joined on many occasions during Committee proceedings. However, I think that on this particular occasion, this particular amendment is not a particularly good way of doing that. I will explain why I think that is the case, and I hope that the Government will instead come forward with another way of achieving the same effect.
It is a very odd situation indeed to have an amendment to what will become a section of an Act that refers to another piece of primary legislation as the basis for an order-making power in the first piece of legislation. In fact I think it is virtually unprecedented.
Mr Grieve
The Bill is unprecedented, because it is asking us, in the light of what the Government themselves say they are going to do, to sanction a power that undermines a further statute that the Government intend to pass, which should be the source of power for removing us from the EU.
Sir Oliver Letwin
Now I am beginning rather to agree with my right hon. and learned Friend. Therefore, my suggestion is that if that is the purpose of his amendment, it would be far better that it come back as a Government amendment on Report that achieves that effect in a different way and directly, without the gross inelegance of referring to another piece of legislation. It should mainly limit the power in clause 9 to things that are urgent and immediate, and perhaps even specify what sorts of things they might be.
As a matter of fact, I rather share my right hon. and learned Friend’s inclination to believe that clause 9 in its present form came forward before the Government were clear about the need for the implementation and withdrawal Bill, and that Ministers and officials have so far been quite hard pressed to identify exactly which powers are required in clause 9 under the new dispensation of that forthcoming Bill. The Government therefore have a good opportunity to promise from the Dispatch Box today that they will come back on Report with an amendment that is correctly phrased in such a way as to limit the order-making power in clause 9. That would avoid the possibility—this is the point that I want to make to my right hon. and learned Friend and other hon. Friends—of suggesting that we are in any way creating a launch pad for the efforts of the right hon. Member for Leeds Central and Opposition Front Benchers to create what they call a meaningful vote, which is in fact an ability to trigger us not leaving.
Mr Grieve
There will undoubtedly be an opportunity at the end of this process, if this House were so minded, to reject a deal. I have to say—my right hon. Friend may agree with me—that ultimately the House could bring this Government down, if it had to or wanted to do so. That is our constitutional ability.
My right hon. Friend’s main point does not find favour with me, because the only way we will get something sensible on Report is by getting amendment 7 on the statute book and on the face of the Bill. I asked repeatedly for an engagement along precisely the lines that my right hon. Friend has identified, and it was consistently rejected. That is why I will vote for amendment 7, and if I may say so, I would encourage him to do likewise.
Sir Oliver Letwin
I am surprised by that, because my right hon. and learned Friend has a long and distinguished record of voting for good law. I do not think that this is good law, for the reasons I have identified. I think it really would be better if we had a correct amendment at a later stage of proceedings.
Mr Grieve
I am most grateful to my right hon. Friend for giving way again. In a sense, he unmasks my strategy. I have spent the whole time trying to be sotto voce about this, trying to get some common sense into the Government, which I have been unable to do. It is for that reason that, I very much regret, there really is no alternative to amendment 7. It may be inelegant—although I do not think it is—but it does the business. It would stop the Government doing something that they should not be doing. I could not agree with him more that clause 9 could be removed entirely. It would very sensible if the Government were to do that, but if I had suggested that they would have been upset with me, and it would have made the relationship and the negotiation even harder. In the spirit of conciliation I avoided that brutality and came up with something different.
Sir Oliver Letwin
Speaking personally, I do not think there would be anything very brutal about the Government deciding on Report that it would be sensible to not have clause 9 in the Bill, given that there will now be a separate piece of legislation to achieve the same effect.
Mr Vaizey
I bow to my right hon. and learned Friend’s wisdom and experience on that point. I am a consensus merchant and simply thought there might be a way forward, but I totally understand that votes might have to be exercised tonight in order to stiffen the Government’s backbone to provide a solution. But nevertheless it has always been the case proposed by my right hon. and learned Friend the Member for Beaconsfield that the Government will have an opportunity on Report potentially to alter his amendment.
Mr Vaizey
If they can justify it, of course.
The second part of my remarks, which will be as brief as possible because so much time has been taken up, is about amendment 300, standing in my name, which has the largest number of signatories of any amendment to this Bill. I am astonished that only four of them are Conservatives, but I think that reflects the standing in which I am held in my own party; I could not even persuade the leader of the rebel alliance, my right hon. and learned Friend the Member for Beaconsfield, to sign my Euratom amendment, and I really do not want my right hon. Friend the Member for West Dorset to talk about bad law when he comes to look at it.
The point of the amendment is simply to put the issue of Euratom under parliamentary scrutiny, and I note the comments made by the hon. Member for Central Ayrshire (Dr Whitford) in her excellent speech about the importance of Euratom in our medical life, and her own real experience at the chalkface in her extraordinary work. So Euratom is not an esoteric issue; it affects us all. It has been debated in the House before and I shall not spend a lot of time talking about how extraordinarily successful our nuclear industry is. My own personal interest comes from the fact that although Culham is not in my constituency, many of my constituents work there, and it depends on Euratom. I thank the Government for last week’s announcement of £86 million of investment in Culham for two new centres of excellence for the testing of components and for fuel storage; that is a real vote of confidence in Culham.
The point, of course, about Euratom is that nobody voted to leave it. Euratom was not in the European Union Referendum Act 2015, and was not on the ballot; it falls under a separate treaty. So the British people did not have a chance to have a referendum on our membership of Euratom.
The reason we are leaving Euratom is technical. Legal advice, which we have not seen, deems Euratom to be inextricably linked to the European Union and therefore an article 50 notice would be defective if it did not include Euratom. However, the mood of the Government and, I think, the House is that we are leaving Euratom on a technicality, not because we object to being governed by Euratom. There is no mood among the general population to leave Euratom as far as I am aware, and I think that only one hon. Member has managed to stand up and say that there is a plausible reason to leave it.
Mr Vaizey
The implications of leaving Euratom, some of which have already been identified by the hon. Member for Central Ayrshire, also extend to our nuclear industry, which provides 20% of this country’s energy. At the moment, we simply cannot move nuclear material around unless we are members of Euratom. So when we leave Euratom, we will have to have, in effect, a Euratom-style arrangement to allow us to move goods around. “Goods” can mean a variety of things. We imagine highly radioactive canisters being moved in special trains at the dead of night, but the movement of goods also involves mundane things such as heat pumps, motors, spares and other components, all of which, because they are part of the civil nuclear ecosystem, have to be moved under the terms of these treaties.
Euratom covers not only objects but the freedom of movement of people. We depend on our membership of Euratom for a nuclear power industry, for our medical industry—isotopes have been mentioned—and for the Joint European Torus at Culham, where Britain has done extraordinarily well. Huge advantages have been made in robotics and other sciences, and there are £500 million-worth of contracts already in ITER, the successor to Culham, thanks to the expertise we have built up here.
Let me make it clear that, throughout this process of our technical move to leave Euratom, Ministers have been absolutely brilliant in engaging with me and other hon. Members who share my concerns and have similar interests. They have bent over backwards to do what they can to accommodate our concerns. Looking forward, we need Ministers to give us clarity on a number of issues. We need nuclear co-operation agreements with other countries—the United States, Canada, Australia, Japan and possibly the European Union as well—and they need to be in place by March 2019. These agreements can be complex, and they can depend on the legislation in other legislatures. For example, the US Congress would have to pass a new nuclear co-operation agreement with us. We will also need a new safeguards regime, and this will come in through the Nuclear Safeguards Bill as a contingency, although I understand that the Government might want Euratom to continue to cover the safeguarding role.
Dominic Raab
I thank my hon. Friend for the constructive way she makes her point. Of course, until we have the withdrawal agreement, we will not know precisely the nature of the technical—
Dominic Raab
May I at least give the answer before my right hon. and learned Friend jumps in?
That is why the agility that clause 9 gives us is important. I do not mean to correct my hon. Friend the Member for Eddisbury (Antoinette Sandbach) in a lawyerly way, but it is not quite right to say that clause 9 can legislate for anything in the context of departing the EU. It relates only to the withdrawal agreement, and I think she said it related to withdrawing from the EU.
Another illustration of what clause 9 could be used for is the spelling out of the technical detail of how ongoing UK cases at the European Court of Justice should be handled, and how the UK courts should treat resulting judgments. Some of that might be done under this Bill, and some under the withdrawal agreement, but we will need to clarify things such as the types of cases that would be in scope and the precise procedural points in terms of whether a case could be considered to be pending, among others. Without that clarification, how such cases should be treated might not be clear. We would run the risk of legal uncertainty, as well as uncertainty for the individuals involved in those cases.
I do not want to make too much of that before my right hon. and learned Friend the Member for Beaconsfield jumps in. He is quite right—he has made this point before, and he may want to hear me out before I take his intervention—that, in 2016, there were 23 preliminary references from UK courts and just one infraction case against the UK. So we do not expect this issue to affect large numbers. None the less, for those affected, it is still important to get this right.
Mr Grieve
I want to understand this, because it is rather important. We are going to enact a withdrawal agreement Bill—I think that is what it is called. I would expect that to have statutory instrument powers—the very statutory instrument powers we can consider in relation to the scope of the withdrawal agreement when deciding what we then enact by secondary legislation to take us out. I begin to wonder whether, in fact, it is the Government’s intention not to have any statutory instruments made under that agreement at all, but to seek to make them entirely through the mechanism of clause 9 before we have had the opportunity of considering what we actually want. That is why clause 9 is, I have to say to my hon. Friend, so mischievous. While I would be prepared to listen to some great exception, abandoning the normal legislative process in this way seems to be utterly undesirable, so I would press my hon. Friend on what is going to happen with this withdrawal agreement Bill. Are we going to have secondary legislation under it?
Dominic Raab
I thank my right hon. and learned Friend. I should just say to my hon. Friend the Member for Eddisbury that I will come on to talk about the restraints on the exercise of clause 9 later. However, in relation to my right hon. and learned Friend’s point, if we waited for the withdrawal agreement Bill not just to be introduced after the withdrawal agreement has been signed but to be fully enacted—if we waited for it to complete its full passage—we would not have time to deal with the volume of technical secondary legislation that we need to put through.
Dominic Raab
From my experience, I must say that I think that is a rather rose-tinted perspective on EU negotiations. I should also say that the same arguments were made about my right hon. Friend the Prime Minister going into the phase 1 negotiations, yet we are on the cusp of formal ratification of the joint report dealing with the first phase issues. The Prime Minister has made some difficult compromises and shown flexibility precisely to get the deal that I think my right hon. and learned Friend welcomes—I also welcome it—even though we were on different sides during the referendum campaign.
I turn to new clauses 3 and 75, which attempt to remove clause 9 wholesale from the Bill. They would undermine one of the important strategic objectives of the Bill, which is to provide the legal means to implement the withdrawal agreement thoroughly in domestic law. I hope I have explained the important, albeit residual, role that clause 9 stands to play in light of the separate primary legislation covering the withdrawal agreement. To remove clause 9 would increase the legal uncertainty, and I hope that the new clauses will not be pressed.
I want to spend a little bit of time focusing on amendments 7, 47 and 355 and new clause 68, but particularly on amendment 7 in the name of my right hon. and learned Friend the Member for Beaconsfield. May I say at the outset that I do not think he has any ulterior motive in tabling the amendment? I have had a number of constructive conversations with him, and I look forward to more in the future. By dint of that, I hope he accepts that I have followed through on every assurance I have given him, and that I have not failed to live up to the undertakings I have given him. It is in that spirit that we on both sides of the debate need to proceed as the Bill goes through the House.
Amendments 7 and 355 call for a separate statute to be enacted approving the withdrawal agreement before the powers in clause 9 can be used. There are a number of problems with doing so. My right hon. Friend the Member for West Dorset (Sir Oliver Letwin) mentioned the constitutional issue, and I agree with him about that. From a practical point of view, however, the crucial problem is the effect that amendment 7 would have in significantly curtailing the timely advantage that we will gain from clause 9. One of the key benefits of the clause is the ability to start to use it reasonably swiftly after the withdrawal agreement has been reached.
To add an unnecessary Bill to the parliamentary agenda—in addition to Parliament’s meaningful vote, as set out in today’s written ministerial statement, and on top of the new withdrawal agreement and implementation Bill—would be restrictive enough. However, to make the first use of the powers in clause 9 wait until the additional legislation has fully passed through Parliament would unduly compress the time we will have to prepare the legislative groundwork, and would risk greater uncertainty. With the greatest respect in the world, I am afraid that is why the amendment tabled by my right hon. and learned Friend the Member for Beaconsfield is defective.
Dominic Raab
If I may, I will finish my comments on this amendment, and I will then let my right hon. and learned Friend critique them in the round. I suspect such a critique is coming.
In rare and exceptional cases, we may need to exercise the powers in clause 9 to pass statutory instruments before the final enactment of the primary legislation, which will be on the date of exit. Let me give an illustration of why it may be necessary for operational changes to be in put in place before that point. An example is where specific statutory authority is needed for a monitoring body to supervise the implementation of the terms of the agreement on citizens’ rights, if that cannot be done in advance under other primary legislation. Such a body would need to be set up beforehand so that it was ready to operate on day one, but we may not know its precise content and contours until relatively late on in the negotiations.
Yes, the potential scope for reliance on clause 9 has been reduced by the Government’s commitment to primary legislation to implement the withdrawal agreement and the implementation period, but it is still important to retain it. The fetter imposed by amendment 7 would risk materially damaging responsible preparations for exit, including in sensitive areas such as citizens’ rights. I know that that is not the intention of my right hon. and learned Friend, to whom I am very happy to give way.
Mr Grieve
I am again most grateful to my hon. Friend for giving way. He will know—I touched on this in my comments—that when this issue was first raised, I suggested that one possibility might be to allow statutory instruments to be laid and voted on by this House prior to the enactment of the further statute, but not allow them to be brought into force until that further statute had been enacted. That would allow the House to stop the statutory process if it was not happy with it. As I understand it, the further statute has to be enacted before the date we leave, because without it we do not have the powers to pull out. In those circumstances, I find it impossible to understand why my suggestion might not solve his problem. I think he will agree that that is where our dialogue stopped. If he actually wants to do something even before that, I have to say to him that, as a matter of principle, I object.
Dominic Raab
My right hon. and learned Friend is right about almost everything; the only point he is not right about is that I think he will find that my suggestion to him was the appropriate way to deal with that. I will come on to give him precisely the assurance he is asking for, although we have not had a chance to get it on to the face of the Bill. I would argue that a political assurance, which I will give him on top of the others that have been given, ought adequately to address his concerns.
With the genuine and material risk of my right hon. and learned Friend’s amendment in mind, I hope I can go further, bridge the gap and reassure hon. Members, and assuage any residual concerns they may have about the operation of clause 9 in practice. I want to provide three very clear assurances to the House.
First, secondary legislation passed under clause 9 will either be affirmative or considered by the Committee established under the amendment tabled by my hon. Friend the Member for Broxbourne. Secondly, the Government are committed to publishing such statutory instruments in draft as far as possible, as early as possible, to facilitate maximum scrutiny, which is another point we have discussed.
Thirdly, we expect that the vast majority of statutory instruments enacted under clause 9 will not come into force until exit day, when the withdrawal agreement comes into force. But I can give my right hon. and learned Friend the Member for Beaconsfield, and the Committee, the concrete assurance that, following the timeframe set out in today’s written ministerial statement, none of the SIs introduced under clause 9 will come into effect until Parliament has voted on the final deal. I hope that that provides important reassurance and is sufficient for hon. Members to withdraw their amendments.
That approach has two advantages. First, it retains our ability to use clause 9 in time to fully implement the withdrawal agreement. It also squarely addresses the concern, fairly and honestly reflected in amendment 7, that there should be a meaningful vote—the critical point made by my right hon. and learned Friend—and that we should not bring new law implementing the withdrawal agreement into effect if Parliament votes that agreement down.
Mr Jenkin
The right hon. Lady knows as well as I do that the intention is to try to conclude an agreement by October 2018, but, again, there is no guarantee of that fact, in which case the resolution will be tabled soon after 2018. May I just point out that amendment 7, proposed by my right hon. and learned Friend the Member for Beaconsfield, is trying to create a meaningful vote by turning this resolution of both Houses into a statute?
Mr Jenkin
Yes, a statute has been promised, but not as a means of second-guessing the negotiations. At what stage in the passage of the statute does my right hon. and learned Friend expect the Government to use that moment and say, “Oh, well, they haven’t agreed with this bit of the agreement; we’ll have to go back.” Is it during the passage of the statute that the negotiations would have to continue? Making this decision a statute does not alter the discussion about a meaningful vote.
Mr Grieve
I am most grateful to my hon. Friend for giving way. I think that he may misunderstand the position. The House will have an opportunity, at the time that it is asked to move a motion approving the deal, to express its view, but it will also have an opportunity to express its view during the passage of the statute. Both those are necessary pre-conditions constitutionally for our leaving the European Union. I cannot help that; that is just how it is. Let me reiterate: the purpose of my amendment is to prevent the powers in clause 9 being used until this key statute has been enacted. That is the purpose.
Mr Grieve
While I was briefly out of the Chamber, an announcement was made of a Government concession, but I have to say, it is too late. I am sorry, but you cannot treat the House in this fashion. My hon. Friend the Member for Eddisbury (Antoinette Sandbach) may agree with me that the best way of getting progress in this area is by moving amendment 7 and thereafter we can co-operate with the Government in trying to achieve its aim.
Stephen Kinnock
I rise to support amendment 7, tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve). I have listened with great interest to all the excellent speeches and interventions by right hon. and hon. Members this afternoon and, for me, three key themes have emerged. First, there is real disagreement about the meaning of “meaningful”. Secondly, there is confusion about the terms of article 50. Thirdly, there is an issue of trust.
On the first point, it is crystal clear that this vote cannot be meaningful if it is binary. It has to be taken on the basis of us having an opportunity to instruct the Government to extend article 50 if necessary. On the second point, article 50 clearly gives the Government the opportunity to seek an extension of the period, and there is no reason whatever why the EU27 would reject that request. It is enshrined in the treaties, and for that to have meaning, they would clearly have to listen to our request. Why on earth would they not accept that request if it was in our mutual interest to do so?
European Union (Withdrawal) Bill
Dominic Grieve ExcerptsTuesday 21st November 2017
(6 years, 6 months ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 21 November 2017 - (21 Nov 2017)
Mr Dominic Grieve (Beaconsfield) (Con)
It is a great pleasure to follow the hon. Member for Nottingham East (Mr Leslie). If I may say so, I do not take the view of my right hon. Friend the Member for Broxtowe (Anna Soubry) in her description of new clause 16. It seems to me that in tabling it for consideration by the Committee the hon. Gentleman has accurately sought to stimulate an extremely important debate on the consequences of getting rid of the charter.
I sometimes feel that there is perhaps a failure of some Members to look at what has been happening in our society and country over a 40-year period. On the whole, western democracies have tended in that time to develop the idea of rights. I know that for some Members that appears to be anathema—it makes them choke over the cornflakes—but it is a development that I have always welcomed and that, it seems to me, has delivered substantial benefits for all members of our society, particularly the most vulnerable.
In this country we have had a long debate about how we reconcile rights with the doctrine of parliamentary sovereignty. Indeed, in 1997 the Labour Government sought to craft—extremely ingeniously, I thought, which is why I was very supportive of it at the time—the legislation that would become the Human Rights Act in an effort to achieve that reconciliation. I think most people in this House would argue that that Act has worked very well by preserving parliamentary sovereignty for primary legislation, enabling secondary legislation to be struck down if incompatible and with the mechanism of a declaration of incompatibility when required.
The truth is that because of our membership of the European Union there are some things that many of us would regard as rights but which fall outside the scope of the Human Rights Act and the European convention, and those things have developed over the same period I mentioned as a result of our European Union membership. I appreciate that that leads to double choking over the cornflakes, because not only have those rights come from what some people might regard as a tainted source—although I am blowed if I can think why: it is just another international treaty—but on top of that is the fact that once in place the charter has no regard for our parliamentary sovereignty. It has the capacity to trump our domestic laws if there is an incompatibility between our domestically enacted laws and the principles of, or anything that has come from, the charter. That is part of the supremacy of EU law to which we have all been subject.
All that should not make us ignore the benefits that the charter of fundamental rights has conferred. Whatever we may think as we talk about parliamentary sovereignty, I venture the suggestion that if one goes out into the street and asks people whether they think that equality law, which is largely EU-derived, has been of value to this country, most people would give a resounding note of approval. I am sure they would do the same with respect to the recent Benkharbouche case in relation to the disapplication of the State Immunity Act 1978 for the purposes of enabling an employment case to be brought against an embassy that had mistreated one of its employees. Of course, as has been cited, the Secretary of State for Exiting the European Union has availed himself of the provisions of the charter and the rights that the EU has conferred in relation to questions of data privacy and the way data is handled.
Mr Lammy
Is the right hon. and learned Gentleman also aware of the simple rights that many of us will have used on behalf of a parent, such as the right to wheelchair accessibility at our airports? There are also rights that came up in the course of the youth justice review I did for the Government, to do with making courts child-friendly so that, for example, they do not intimidate a young woman having to relay a terrible case of sexual assault. Such rights did not exist in British law but now exist as a result of the charter. For that reason, we ought to give due respect to our European friends for giving us the charter.
Mr Grieve
I place great respect on the fact that, for all the faults I can sometimes identify, when the European Union was established its founding fathers wished it to be based on principles not only of the rule of law, but of a vision of human society of which I have no difficulty approving.
Mr Grieve
I will just make a little progress.
I do not have any problem with that vision at all. It worries me that, in the course of this debate on Brexit and our departure from the European Union, in this massive upheaval of venom about the EU that I have experienced personally in the past week, which seems to have no relation to reality at all and troubles me very much, we seem to be at risk of losing sight of these aspects of real progress within our society as a result of our EU membership. They are overlooked.
Sir William Cash
I have listened to my right hon. and learned Friend with great care and interest. Will he explain why the matters to which he and the right hon. Member for Tottenham (Mr Lammy) have just referred could not be enacted? In fact, they often are enacted; I referred to the Protection of Children Act 1978, the International Development (Gender Equality) Act 2014 and so forth. Does he not understand that it is terribly important to remember that implicit in the charter—as a distinguished lawyer, he knows this—is the power of the European Court to disapply Supreme Court enactments? The Factortame case was a good example of that in respect of the Merchant Shipping Act 1988.
Mr Grieve
I thought Factortame would come along at some point in this debate. My hon. Friend is of course right about that. I know that he has spent most of his career in this House agonising over the issue of the loss or diminution of parliamentary sovereignty. That is not a matter to be neglected, and if he will wait just a moment I shall come to that point.
As I said, by raising the points he has through tabling new clause 16, the hon. Member for Nottingham East has done the right thing, because we need to focus on what is going to happen after we have left the EU. Of course my hon. Friend the Member for Stone (Sir William Cash) is correct: the laws that we have enacted, as at the date of exit, as a consequence of our EU membership and the requirement for us to adhere to the charter, will remain in place, but it is interesting that they will thereafter be wholly unprotected. For example, they will not even enjoy the special protection that we crafted in the Human Rights Act for other areas deemed to be of importance.
One solution may be that, in due course, we ought to think carefully about whether there are other categories of rights additional to the European convention on human rights—heaven knows we have been here before—that ought to enjoy the sort of protection that the Human Rights Act affords other rights. That might well be the way forward. I agree with my hon. Friend that it is slightly strange that, in leaving the EU for national sovereignty reasons, we should then say that we will continue to entrench certain categories of rights protected in the charter and give them a status even higher than, for example, prohibiting torture under the ECHR. That might strike people as rather odd. On that basis, I am forced to conclude that, if we are leaving the EU, as we intend to do, the sort of entrenchment that has previously existed is not sustainable. We will have to come back to this House to consider how we move forward, but, in saying that, I think that this is a very big issue indeed.
It worries me that, when we leave in March 2019, there will be a hiatus. There will be a gap where areas of law that matter to people are not protected in any way at all. It is no surprise, therefore, that non-governmental organisations have been bombarding MPs with their anxiety. I think that that anxiety is misplaced, because I cannot believe that any Member on the Treasury Front Bench intends to diminish existing rights. However, we are in danger from two things. One is sclerosis—that the rights development will cease. Secondly, because those rights do not enjoy any form of special status—many, not necessarily all, should certainly do so—there will be occasions when we nibble away at them and then discover that they have been lost. For that reason, it is a really urgent issue for consideration by this House, preferably before or shortly after we leave.
Victoria Prentis
My right hon. and learned Friend and former pupil master is making a speech with his characteristic intellectual honesty. Nothing passes him by. In that spirit, does he agree that the charter is not really the solution to incorporating the rights that so many of us want to see incorporated, such as the new views of sexuality and children’s rights? Possibly the way forward is not to vote for this new clause, but to continue to put pressure on those on the Treasury Bench to ensure that those rights are protected in a modern and suitable way for the current world.
Mr Grieve
My hon. Friend makes a good point. As has been pointed out, this new clause just asks for a report, which means it is trying to concentrate minds on an issue. In our debate last week, one point that I made on my new clause 55, which is still hanging over the Treasury Bench like the sword of Damocles, is that there may be some ways in which we can provide—even now as we leave, as a temporary measure before we can return to the issue—some greater reassurance on the protection of key rights in the fields of equality. I strongly recommend that my hon and right hon. Friends pay some attention to that, because the issue will not go away. If we do not seek to act on it, the idea of a modern Conservative party starts to fray at the edges, and I do not wish my party to gain a reputation for ignoring these key issues.
Catherine West (Hornsey and Wood Green) (Lab)
Might I use as an example very cash-strapped services, which might not naturally wish to be extending the rights and the costs of services? For example, in the aged care sector, a couple who traditionally had to be split up due to the needs of one or other of them can, under European rights, remain as a couple. We can imagine that, in a time of cash-strapped services, that sort of right might not necessarily fall into the lap of service users.
Mr Grieve
The hon. Lady makes a valid point, but it is worth bearing in mind that that is covered by the Human Rights Act and the ECHR, so let us not get too worried. We must also face up to the fact that some socio-economic rights that require levels of cost and economic policy decisions are legitimate areas in which Parliament and Government can say that, however ideal they might be, a balance must be struck. That is why I am always careful—this probably marks me out as a Conservative—about the infinite extension of rights, because thereby we dilute their importance. That is very important to bear in mind.
Mr Harper
My right hon. and learned Friend raised the issue of the extension of rights. Is not one of the problems with the charter and its interpretation by the courts that, because it is a very general set of rights, it can be extended by courts? Unlike with the ECHR and the Human Rights Act, it is not just about declaring incompatibility, but about striking down Acts of this Parliament too. This does not get the balance right, which he accepts is very important.
Mr Grieve
That of course was one of the great anxieties when the charter was enacted. Indeed, it is the reason for the UK’s so-called opt-out, but it is not an opt-out because, in so far as the charter reflects general principles of EU law, we are bound by it. One example, which my right hon. Friend will remember, was the case of Chester and McGeoch and prisoner voting rights. There was an attempt to invoke EU law as a tool in order to force the UK Government to bring in prisoner voting, at least in relation to European elections. I think that it is fair to say that it caused much disquiet in government as to the possibility that that might be the outcome of the court case. Indeed, I went to argue the court case as Attorney General on the Government’s behalf in our Supreme Court. Invoking EU law was used as a tool, but it did not lead to that outcome.
Looking back over the history of the charter, I do not think that some of the fears that were expressed—that it would be used for an expansionist purpose by the European Court of Justice in Luxembourg—have been proved to be correct. In any event, we are leaving the jurisdiction of the Court of Justice of the European Union, unless we have to stay in it for transitional purposes. When we are gone it will be our own Supreme Court, in which I have enormous confidence, that will carry out that interpretation. I do not want to labour this point much further. I simply want to say that there is a really important issue for us to debate. It is about what happens to the sorts of rights that have come to us through the charter and through the EU. The matter cannot be ignored. In the short term—the sword of Damocles moment again—the Government must think about it before the Bill has finished going through this House.
Sir Oliver Letwin (West Dorset) (Con)
I just want to make sure that I understand what my right hon. and learned Friend is suggesting. Are there some items in the charter which are not going to be retained through the retention principles of the Bill, but which should be retained in the form effectively of becoming an amendment to the HRA, so that they are subject to the HRA’s protections?
Mr Grieve
That could be a solution, but even if we do not have time to move to that and to have the necessary debate—as we highlighted in the question about the statutory instrument powers that the Government are taking to change law—some comfort and reassurance might be provided with the fact that there are some categories of EU-derived law that could do with at least the assurance that they would require primary legislation to change them. That might go some way to providing reassurance to some of the perfectly worthy organisations that have been writing to us that there is no malevolent intent towards this important area in which rights have developed.
Mary Creagh
The general principles of European law do not cover the principles of environmental law. That was made clear to us in terms from the Dispatch Box last week. The charter does guarantee those environmental rights. Does the right hon. and learned Gentleman agree that environmental principles are one area in which this Bill is deficient and in which our rights will be lost?
Sir Oliver Letwin
I just want to follow what my right hon. and learned Friend was saying a moment ago, because it seemed to be a very useful suggestion. Is he saying that, as part of what he and I sometimes call the triage process, certain items that are classed as rights could be subject to primary legislation in full for amendment, whereas others, which are important but not rights, might be subject to the affirmative procedure and others, which are technical, will be left over for the negative procedure?
Charlie Elphicke
My right hon. and learned Friend is making a typically thoughtful and deeply considered speech. On a point of clarification, would it be right to say that there are, effectively, three different categories in the charter of fundamental rights? There are those rights that, as I indicated earlier, do not make a lot of sense in transposition, such as the right to petition the European Parliament. There are those rights that are already covered by the Human Rights Act, such as the right to life and the right to property. However, there is a third category of rights, such as that in article 41, that are not covered by our own jurisprudence and legal system, and they might usefully be so in due course.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
Some of these rights are going to be incorporated in different statutes. For example, there is going to be an environment Act, which will create a new regulator and, we hope, protect those rights. Is the present proposal not a very broad brush, which is ill fitted to dealing with these rather detailed matters? Can my right and learned hon. Friend give us some reassurance that Supreme Court judges will not be left dealing with more legal uncertainty, rather than less, because they will have to adjudicate between two different rights regimes—one that is directly applicable from our own statute, and the other where they may have to declare an incompatibility with European convention rights? How will that diminish legal uncertainty, which is what Supreme Court judges are looking for?
Mr Grieve
If I understand my hon. Friend’s question, it goes to the point I made a moment ago, which was that it ought to be possible to consider whether some of these rights should be incorporated in a Bill of Rights that provides equivalent protection to that currently provided in the Human Rights Act. I think it is possible to distinguish between what matters and what does not. I am not suggesting that all environmental law would have to enjoy that protection, but I think it is possible, and an exercise that this House and the Government will have to carry out—the pressure will build for this—to give this issue some consideration. Equally, the House may decide that it is not concerned about some categories of rights and that it just wants to stick to things such as equality, data privacy and children’s rights. We will need to debate that.
Mr Grieve
No, I do not think it will create uncertainty, any more than the Human Rights Act has created uncertainty. I have to say to my hon. Friend that I do not think that that is an issue. However, as I say, I do accept that it will take time to draft and debate these things, and it is not in this current forum that we will be able to achieve that.
Mr Rees-Mogg
On the point my right hon. and learned Friend is making, I think I am in complete agreement with him. It is right for this place to consider, debate and legislate on these issues, because this is the right forum for doing that, rather than by implementing a whole slew of rights, which would then be entirely in the hands of the courts.
Mr Grieve
Yes, and there we are in agreement. It is inevitable and regrettable that we face this situation, but that is why simply to convert the charter, which, in any case, has lots in it that is unconvertible, and to say that it should maintain entrenched rights, seems to me, in the light of what we are debating in the context of Brexit, to be an impossibility. That is not something that commends itself to me.
Let me now move to a slightly narrower issue. We have to accept that, in the course of what we are doing, we are going through a complex period of transition. Forget about the transitional arrangements we may be negotiating with our EU partners—the truth is that we are creating a whole category of transitional law. By the concept of retained EU law, we are doing some very strange things indeed with our ordinary legal principles.
Clause 5(2) allows EU law to have priority over domestic law in certain circumstances. In fact, it allows for the possibility of UK law enacted prior to exit day being quashed for incompatibility with EU law that is retained on exit day. I simply make the point that, leaving aside our EU membership, which of course will have ceased, this is an utterly unique development in our legal system—it has never happened before. We are about to create a species of domestic or semi-domestic law—I would not quite describe it as feral law—which will have the unique quality of being able to override our own laws. Clause 6(3) will also allow CJEU judgments given before exit day to be binding, but not on our Supreme Court—a matter that my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) and I have been worrying about quite a lot in the course of the passage of this legislation.
So although the CJEU will rightly lose jurisdiction, it and EU law will keep a special status. However, that is intended to be only temporary, although how temporary is speculative, and I of course note clause 5(3), which says that this law can be modified and still retain this special status, as long as the modification, I assume, is not so dramatic or drastic that it is made explicit that it should lose it. That is different from replacement. That, I suspect, is because the Government know very well that this situation may continue for decades to come.
Yet, in the middle of that, the charter is removed. Leaving aside the other issues concerning the charter, which I have touched on, and which I do not want to go back over, that creates an unusual circumstance. EU law was always intended to be purposive, and one of the purposes is to give effect to the fundamental principles under which the EU is supposed to operate. Yet we are removing the benchmark under which this law is supposed to operate, because the charter will no longer be there, although, interestingly—I think this is an acknowledgment by the Government of the problem they have—they have then, in the next clauses, essentially allowed the charter and general principles of EU law to continue to be used for the purposes of interpretation.
It is very unclear how all this, in practice, is going to work out. That is why I tabled my two principal amendments. Amendment 8 would allow the retention of the charter. It provides an easy route to ensuring that this legal framework is retained, but for the reasons we have just been debating, there are serious issues surrounding it, which is why I think it is probably wrong to pursue it.
However, there is then the question in schedule 1 of what we do with general principles of EU law. What they are is totally undefined, but I assume—I have to assume—that if the Government are content to articulate the existence of general principles, they have done enough research to establish to their own satisfaction that general principles do exist—they are the result of court judgments interpreting the law and, indeed, the fundamental principles in the charter, but not the ones that are going to disappear on the day we leave.
John Redwood (Wokingham) (Con)
Is not the important point about clause 5 that any future Act of this Parliament takes supremacy, so if there is a muddle or a problem, this Parliament can sort it out definitively? I should have thought that that would deal with the interests of all parties concerned.
Mr Grieve
My right hon. Friend almost makes my case for me. He is absolutely right that, in so far as we want to depart from anything, this House, once we have left the EU, can do what it likes, and as regards anything we enact thereafter, the supremacy of EU law is entirely removed. We can do exactly what we please, except, I am afraid, in so far as we may find ourselves still locked into trying to maintain comity with the EU when the penny drops about the economic consequences of not having it. However, I will refrain from straying too far into that area.
So the question is: is there some merit in keeping the right to bring a challenge using general principles of EU law? I would have thought that there is. I tried to work through in my mind the importance of this. First, we may have retained EU law that is deficient, defective or does not operate properly, or a court might be forced to conclude that it operates in a capricious or even unfair manner, or is disproportionate. At the moment, the only remedy for the court, unless it can bring in the Human Rights Act, will be to apply the law and somebody points out to a Minister that that law is working very badly.
Sir Oliver Letwin
I am delighted, though not surprised, that my right hon. and learned Friend and I are thinking alike on this, as we have thought alike on many of these issues. Does he think, in that case, that his amendment 10 ought to be recast when, as I hope, it appears as a Government amendment on Report, so as not to remove paragraph 3 but to say, instead of “general principles”, “retained general principles”, with similar consequential adjustments?
Mr Grieve
I am grateful to my right hon. Friend for his intervention. As I have said on many previous occasions, whatever merits I may have as a lawyer, I am not a parliamentary draftsman. On top of that, I gently point out that, in an effort to get my amendments in early, they were, in the usual way, drafted with a wet towel around my head at about 30 minutes past midnight on the night before Second Reading. I am therefore quite sure that they are all capable of substantial improvement. Indeed, in my experience, it is very unusual for an amendment ever to be accepted just like that, apart from when it adds a comma, particularly in Committee.
Yes, of course there are different ways in which this can be approached. Indeed, my hon. and learned Friend the Solicitor General, with whom I have had an opportunity for a bit of a chat—I shall look forward to talking to him further about this—has made it clear that he thinks I have been a bit too draconian in deleting paragraphs 1, 2 and 3. On the other hand, there are some other things in paragraphs 1, 2 and 3 that I find rather concerning. However, I shall confine myself to paragraph 3 for the moment.
Mr Kenneth Clarke
On whether the drafting is entirely right, so far, as far as I am aware, the Government have had absolutely no answer to the extremely clear case that my right hon. and learned Friend has made about the proper way to protect these cases in future. The obvious thing is for the Government to accept these amendments today, because they can come back on Report and start correcting and redrafting amendments to which I am sure that he will be wholly receptive. What I would not welcome is some vague assurances from Front Benchers that they will think about it and then might come back with something on Report. The drafting can be corrected later; the points that he is making need to be confirmed today.
Mr Grieve
My right hon. and learned Friend makes a very good point. He highlights the difficulty faced by all Back Benchers, particularly Government Back Benchers, in presenting amendments—namely, the extent to which they should accept assurances from Front Benchers. That largely depends on how detailed the assurance is—whether it is woolly and vague or has some specificity to it. My judgment on whether I might press amendment 10 to the vote will depend on how specific Front Benchers can be in providing an assurance that they recognise that, even if there may be areas that remain to be debated, there is a core issue that must be addressed about the ability to bring a right of action in domestic law based on a failure to comply with a general principle of EU law when it concerns the operation of retained EU law.
Furthermore, because retained EU law has supremacy over domestic law, it must be possible that there might be instances in which our domestic law would have to be altered. The Government cannot then argue that that is an extraordinary thing to do, because they have themselves drafted this Bill in a way that allows for the possibility of UK domestic law being quashed. That will, I hope, be for a temporary period. Nevertheless, I am unable to understand how, during that temporary period, we can end up with a situation where the Government are perfectly happy to allow for the supremacy of EU law but remove the very principles that moderate it, ensure that it cannot be abused, and, in those areas that were within EU competence, provide a framework under which the Government are undertaking to operate unless or until they repeal the bits of retained EU legislation that they are bringing into our law.
Mr Grieve
Before my hon. Friend intervenes, let me say this to him. The big argument against EU law is that it was either created by “this foreign body” or it was inflicted on us and we had to enact it in order to comply with our international legal obligations. In those circumstances, it is a bit odd if we start arguing that, in view of where it comes from, the possibility of, for example, knocking it on the head because it does not comply with its own general principles should be entirely abandoned.
Sir William Cash
I hope that my right hon. and learned Friend will not go down the rabbit hole suggested by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), which is that we should accept this incongruous proposal when in fact it involves a fundamental principle of constitutional supremacy. I am sure that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) understands that. He is identifying a number of questions, and I entirely encourage him to continue to do so. I suggest, however, that it would be very unwise indeed to follow the advice of my right hon. and learned Friend the Member for Rushcliffe as regards the Government accepting these amendments for the time being.
Mr Grieve
I understand my hon. Friend’s point. However, the purpose of this Bill, as I understand it, is to put together a package that enables a smooth transition from our presence within the European Union to our presence outside of it. That, of necessity, requires adjustments to the purity of his thinking about parliamentary sovereignty, which the Government have been required to acknowledge in the way that they have drafted this Bill. In those circumstances, it does not seem to be pushing the boundaries very much further, nor should it be seen as some treasonable article, for us to consider whether the general principles of EU law ought not to be capable of being invoked when they are probably the very thing that has, over the years, prevented the EU from turning into an even worse tyranny, as my hon. Friend would see it. [Interruption.] Well, I have to say, having listened to him, that that is usually the impression that has come across. He sees it as tyrannical because it is not moderated by the doctrine of our parliamentary sovereignty. I simply make that point; I do not wish to labour it.
Mr Rees-Mogg
Is there not an important change once we have left the European Union in that the European Court of Justice would not accept the jurisdiction of the European Court of Human Rights because it would not accept that a higher court could intervene in any of its rulings? It therefore needed protections within its own system that within our system are provided by the European Court of Human Rights and the application of that in domestic law.
Mr Grieve
My hon. Friend makes an interesting point. I slightly question the extent to which we have had clear evidence of that, although I know that there has been a reluctance on the part of the European Court of Justice to accept any higher authority, despite the intention of the parties that it should become subordinate, ultimately, to the ECHR. He is right that one reason why the charter came into being was to secure compliance. I think it is rather more of a hypothetical than an actual state of affairs, although such a problem might exist in future. In any event, I do not think we are dealing here just with matters covered by the ECHR, for the very reasons that were discussed earlier in relation to new clause 16, which was tabled by the hon. Member for Nottingham East. I simply say to my right hon. and hon. Friends that the issue has to be addressed.
As I said earlier, I recognise that my amendment is not as good as it might be, and could be improved on. If the Government can give me an assurance that is adequate and goes beyond vagueness, I will be content not to press amendment 10 a vote. The issue is not going to go away, however, and when one is in this sort of dialogue with the Government, one does not want to be soft-soaped off. If that happens, there will be a road crash when we come to Report, in which I will be unable to support the Government on a whole series of matters. I hope that those things can be resolved by consensus.
I have spoken for quite long enough, but I have explained why I think that, on the important issue that we are debating today, the best solution in the interim is to use something along the lines of amendment 10 to ensure that general principles of EU law can continue to be invoked. Of course, as the transition goes on, I assume that so much EU law may disappear, but I venture the suggestion that it will continue to be relevant for some time to come.
May I, finally, touch briefly on the three other amendments —297, 298 and 299—that I have tabled? They are very simple, and they concern the use in clause 5 of the words
“any enactment or rule of law”.
I simply say that nobody I have spoken to understands why the words “rule of law” appear in the Bill. Ultimately, a rule of law is a rule of the common law; and in so far as a rule of the common law is displaced by statute, that rule will be displaced, of itself, by the courts. It does not require to be spelled out in legislation. I draw some comfort, on that, from the fact that a very distinguished lawyer who previously worked in this building shares my view that the inclusion of those words is incomprehensible. I do not think that that is a matter that I would necessarily put to the vote, if I was required to do so, but I hope that the Government might be able to provide a positive response on it. I am grateful to the Committee for listening.
Paul Blomfield (Sheffield Central) (Lab)
It is a genuine pleasure to follow the right hon. and learned Member for Beaconsfield (Mr Grieve), who made his case extremely well and very convincingly—it is supported by many hon. Members on both sides of Committee.
I rise to speak to amendment 46, which is designed to ensure that we keep the charter of fundamental rights in EU retained law; amendment 335, which would maintain the principles of the Francovich ruling after exit day for pre-Brexit cases; amendments 285, 286 and 287, which make provision for existing arrangements to continue during a transitional period; and, finally, amendment 336, which makes provision for retaining existing principles of EU law within domestic law until the end of the transitional arrangements.
Paul Blomfield
If the Prime Minister’s words are to be taken at face value—we continue to operate during the transition practically as if we were still part of the membership—new principles would apply during the transitional period, although not after it had ended.
Mr Grieve
The hon. Gentleman has touched on an important point. If we are going into a transitional period retaining the architecture of EU law, or the vast majority of it for that period, to try to leave at the end of the transition and go back to the status of retained EU law on the date on which we moved into transition would be utterly unrealistic. It would have to be from the date on which we moved from transition to final departure.
Paul Blomfield
I thank the right hon. and learned Gentleman, who has made the point much more effectively than I did. That is absolutely right.
Briefly, Francovich raises some important issues of accountability. Surely there is oversight by Government, because I would expect them to accept that the right to damages should be available in cases where the breach of Community law took place before exit day, and indeed before the end of a transitional period, but discovery only took place afterwards. I am therefore seeking clarification from Ministers on that point, and I hope that they accept what hon. Members are seeking to do in amendments on Francovich.
We are pleased to support new clauses 16, 78 and 79, as well as amendments 297, 298, 299, 8,10,101,105 and 62 and the consequential amendments 126 ,127,129,140, 141, 302 and 9—just for clarity. In conclusion, I return to amendment 46, because we need some honesty from the Government. The House has not authorised the Government to use Brexit as a vehicle to deplete human rights in this country. If the Government want to reduce rights and protections, they should say so and we can debate it. What is not acceptable is to pretend that the Bill provides for the transfer of rights and protections when it clearly does not.
Dominic Raab
I will give way shortly to the hon. and learned Lady, because I know she supports some of the amendments.
I turn now to amendments 297, 298 and 299, tabled my right hon. and learned Friend the Member for Beaconsfield, and to amendments 285 and 286, tabled by the leader of the Labour party, the right hon. Member for Islington North (Jeremy Corbyn). My right hon. and learned Friend the Member for Beaconsfield wishes to remove any reference to “any rule of law”, which is a reference in the Bill to common law rules in relation to provisions addressing supremacy of EU law. In effect, his amendments—at least as I have understood them, and I stand to be corrected—would allow EU law to continue to trump the common law after the date of exit. However, this would undermine both of the key strategic objectives of the Bill. It would mean in relation to common law rules articulated after exit day that retained EU law trumps them, undermining the UK’s basic constitutional hierarchy that we are seeking to restore and affirm.
Dominic Raab
Allow me to make the point and then I will give way, because there are two sides to my right hon. and learned Friend’s amendment.
Paradoxically, with respect to the relationship between retained EU law and common law rules made up until exit day, my right hon. and learned Friend’s amendment would skew the clear and certain snapshot the Bill will take, because retained EU law would no longer supersede common law rules. By removing the common law from the operation of the Bill, I am afraid the amendments would—at least on the Government’s analysis—create considerable uncertainty for business and individuals alike.
Mr Grieve
No, I want these words removed because they are completely unnecessary. To use that wonderful word that lawyers like to apply, they are otiose—they add absolutely nothing to the Bill. The common law will be adjusted according to the statutory framework in which it operates, so I say with some regret—because someone clearly came up with the idea—that it seems rather poor drafting. Others, whom I consulted because I was puzzled by this, and who have spent their lives drafting precisely this sort of legislation, seem to agree with me. I was trying to help my hon. Friend, not create some devilish plot to scupper Brexit.
Dominic Raab
I am going to make some progress, because I have been speaking for over half an hour and the Solicitor General will want to speak again to address schedule 1.
The substantive rights that individuals already benefit from in the UK when their data is processed will be retained under this Bill. As I have pointed out, the charter is not the source of rights contained within it; it was intended only to catalogue those that existed in EU law at that moment in time.
Finally, I want to address the late new clauses tabled: new clause 78, tabled by the right hon. Member for Carshalton and Wallington (Tom Brake), and new clause 79. On the impact our departure from the EU might have on equalities legislation, I again reaffirm the commitment I made on day one in Committee to my right hon. Friend the Member for Basingstoke (Mrs Miller), the Chair of the Women and Equalities Committee, when we discussed this issue at some length. I understand the intention behind this amendment and can reassure the right hon. Gentleman that there will be no reduction in the substantive equalities protections when we leave the EU. Equally, the right hon. Gentleman’s amendment presents some very real practical difficulties, not least his attempt effectively to copy and paste the procedural model used in the Human Rights Act and then put it into this Bill for the equalities purposes.
The Human Rights Act assesses compatibility according to an international instrument, the ECHR, which is not the same. There is not an equivalent that applies to the Equality Act, but I am more than happy to reaffirm the commitment I made to my right hon. Friend the Chair of the Select Committee that the Government will bring forward an amendment before Report stage that will require Ministers to make a statement before this House in the presentation of any Brexit-related primary or secondary legislation on whether and how it is consistent with the Equality Act. I hope that reassures the right hon. Gentleman that the Government are serious about addressing the issue he has rightly raised.
New clause 79 suggests a procedural device for incorporating certain EEA-related rules into UK law. This is entirely unnecessary given the wider snapshot of EU law this Bill will take at the point of exit.
I hope I have tackled, or at least have endeavoured to tackle—
Dominic Raab
As I said at the opening of my remarks, given the intention to address clause 5 in some detail and all the underlying amendments, we have split this up and the Solicitor General will address schedule 1 and all my right hon. and learned Friend’s concerns around Francovich and general principles in due course.
I hope I have tackled hon. Members’ concerns, at least in relation to clause 5 and the charter, and I urge hon. Members not to press their amendments to a vote. This Government and the ministerial team have listened, and we will continue to reflect carefully on all the arguments made today. Equally, the Government believe the exceptions to retained EU law contained in clause 5 are right as we carefully seek to separate our legal system from that of the EU, restore democratic control to this House, and do so in a way that leaves more, not less, legal certainty. I urge hon. Members to withdraw their amendments and to pass clause 5 unamended.
Sir William Cash
I agree with my hon. Friend’s general proposition, to which I would add that it is up to us to make our own laws. We can listen to the arguments, we can make the amendments and we can recognise human rights, as well as all the other things, as I did with the International Development (Gender Equality) Act 2014. I entirely agree with his sentiment for that reason.
Lord Bingham went on to say:
“We live in a society dedicated to the rule of law”—
I note the reference to that by my right hon. and learned Friend the Member for Beaconsfield—
“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; and in which the judges, consistently with their constitutional duty to administer justice according to the laws and usages of the realm, cannot fail to give effect to such legislation if it is clearly and unambiguously expressed.”
I ought to add that, in fact, Lady Hale revisited that territory, before she was made President of the Supreme Court, in a speech in Kuala Lumpur on 9 November 2016.
The Conservative party opposed Lisbon, which conferred treaty status on the charter. I say this to my right hon. and learned Friend the Member for Beaconsfield with all respect, because we get on pretty well and we have had several chats over the past few days, but I trust he will recall his opposition to the Lisbon treaty and, therefore, to the charter when he was shadow Attorney General—he followed me in that post. More specifically, I hope he will recall the evidence he gave to the European Union Committee of the House of Lords, which was cited in its report published on 9 May 2016—
Sir William Cash
I know my right hon. and learned friend knows what I am about to say, but may I finish the quotation? He said that
“the European Court of Human Rights is a very benign institution, whereas I happen to think that the European Court of Justice in Luxembourg has predatory qualities to it that could be very inimical to some of our national practices”.
I would suggest that those are in respect of the question of disapplication of Acts of Parliament.
Mr Grieve
May I gently say to my hon. Friend that although this is fascinating, we are actually talking about retained EU law which will not be subject to the jurisdiction of the Court of Justice of the European Union? I do have criticisms of the CJEU and the way it has operated at times, and I have had the pleasure, or misfortune, of appearing before it. Its teleological principles and its purposive interpretation of law have often been challenging in our national setting, although it is not a pariah court and by international standards it is a pretty good tribunal. So I stand by the points I made on that occasion, but they in no way diminish or undermine anything that I have said here this afternoon.
Sir William Cash
I simply add that I understand this with reference to the European Court in its existing situation, because not until we leave the EU are we able to avoid the jurisdiction of the European Court, so that applies at least for the next two years and probably for the two after that. God knows what they will do in the meantime. My European Scrutiny Committee has been holding meetings already on the European laws that have been proposed since the general election, but the problem is—
Mr Grieve
As I said, the drafting of amendments is quite a complex matter, and I am the first to accept that an amendment may not meet the exact needs of the Government, even if the Government were to seek to accept it. None the less, the position is very simple and I can only repeat it: amendment 10 will be put to the vote unless the Government give some satisfactory assurances that they will respond to it.
Sir William Cash
Let me conclude. I do hope that my right hon. and learned Friend will not do what he has just suggested. I say that because those measures are defective not only in the way that he has described, but in respect of paragraph 5 of schedule 1. Amendment 10 refers to paragraphs 1 to 3, but there are also difficulties in relation to paragraph 5, which I will not go into now because I have made all my remarks.
I sincerely urge my right hon. and learned Friend to listen to the arguments and to accept the fact that, for very good reasons, it would not be appropriate to press these amendments to a vote.
Robert Neill
There have been a number of powerful speeches from Members on both sides of the Committee on this important issue. I shall be as brief as I can, but I want to begin by picking up the point made by my hon. Friend the Member for Eddisbury (Antoinette Sandbach). This is what we are supposed to be doing in this House. This is about proper parliamentary scrutiny. I do not care about the views of writers of newspaper headlines. If any one of us stands up and seeks to scrutinise the Bill to improve it, we are doing our duty by our constituents. Anyone who thinks that doing so is somehow opposing either the Bill or the wishes of the electorate has precious little knowledge of—or, even worse, no respect for—our parliamentary processes.
In an endeavour to seek to improve the Bill and assist the Government, I supported a number of amendments tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and others, and I stand by that. I hope—I get the impression from the spirit of what has been said—that the Government recognise those issues and will find a means to take them forward constructively. That is in everyone’s good interests, but I want to reinforce as swiftly as possible the significance of that. The Government’s position in relation to the protection of human rights has been grossly mischaracterised by some Opposition Members. That does the debate no good. I do not believe for a second that it is the Government’s intention to diminish rights protection. Equally, it is important that we get right the way in which that is protected. I hope that my hon. and learned Friend the Solicitor General will reflect on that.
I particularly want to refer to Francovich litigation, because this is a classic case of making sure that we do not inadvertently do injustice to people as we take necessary measures in the Bill to incorporate existing European law into our own. No one has a problem with that, but it is not right to deny people the ability to seek effective remedy for a course of action that arises under retained law. The whole point of having sensible limitation Acts is to prevent people from being denied a remedy with the passage of time when they have done nothing to deserve that. We need a bit more clarity—for example, if there is a pre-existing right to a course of action that is available until the moment we leave the European Union, it ought to be possible for someone, once they have become aware of that course of action, to pursue it through our courts.
Mr Grieve
I agree entirely with my hon. Friend. While the Government have made an argument that there is a problem because of the international law aspect in such a piece of litigation going all the way to the European Court of Justice, there can be no argument that the same rules that applied when we were in the EU should apply to any such piece of litigation, even if the end-stop is our own Supreme Court. It is perfectly easy to do, and the Bill has to be altered to allow that to happen.
Robert Neill
The case that my right hon. and learned Friend makes is completely unarguable. There is no answer to that thus far from the Government, and the only answer is to change and improve the Bill. To fail to tie up that clear, apparent and recognised loose end in the Bill could have the effect, almost by negligence or a measure of inadvertence, of denying UK citizens rights they might otherwise have. That would seem to me to be almost verging on the disreputable. I do not believe that the Ministers on the Treasury Bench wish to do that for one second and I know they will want to put it right. I hope that they will make it clear that it is the Government’s intention to make sure that that lacuna is resolved.
The Solicitor General
If I may, I will move on to amendment 10, which would remove paragraphs 1 to 3 from schedule 1. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) earlier drew the attention of the Committee to these important matters, and I am grateful to him for the constructive way in which he has sought to approach this issue. First, we cannot agree to the removal of paragraph 1 because the effect would be to create huge uncertainty. How would our domestic courts approach the task of assessing challenges to the validity of converted law? That is a job that they have never had before. Who would defend those challenges? What remedies would be available to the courts? How could converted law that was found to be invalid be replaced? The amendment does not deal with any of those vital questions.
Similarly, we cannot accept that paragraph 2 should be removed from the schedule. There is no single definitive list of the general principles. They are discovered and developed by the Court of Justice of the European Union. Paragraph 2 in its current form maximises certainty by specifying a clear cut-off point and stating that a general principle needs to have been recognised by the Court before we exit. Without that, it would be completely unclear which general principles could be used as the basis for a challenge. It is not even clear whether post-exit CJEU jurisprudence could be taken into account, and so whether new principles couldbe discovered after exit. That would be completely inappropriate.
Mr Grieve
I would like gently to point out that I did not propose deleting the interpretation provision 5(2). Admittedly, it does not interpret anything because the rest is gone, but it nevertheless made it pretty clear that we were talking about retained EU law and that such law was created prior to the date of our exit.
The Solicitor General
I think that my right hon. and learned Friend has answered his own point. Without sub-paragraph (2), paragraph 5(2) becomes rather difficult to apply. I want to get to the nub of his concern, however, which is paragraph 3 of the schedule. We recognise the strength of the views that he and other Members on both sides of the Committee have expressed on this issue, many of whom have spoken this afternoon. We are listening, and we are prepared to look again at this issue to ensure that we are taking an approach that can command the support of the Committee.
Simply removing paragraph 3 in its entirety, however, is not something that we could agree to. It would result in an open-ended right of challenge based on the general principles of EU law, however they are defined, after exit. It would mean that domestic legislation, both secondary and primary, rules of law and executive action could be disapplied or quashed if found to be incompatible with those actions. Currently, the general principles apply when a member state is
“acting within the scope of EU law”,
so after exit the circumstances in which the general principles could be relied upon would not be clear.
Allowing courts to overturn Acts of Parliament, outside the context of EU law, on the basis of incompatibility with these principles would be alien to our legal system and would offend against parliamentary sovereignty.
Mr Grieve
My hon. and learned Friend raised the question of scope and when this would apply, but it seems to me that he was answering his own question, because it comes when there is a clash between the law that has been retained and has supremacy and any domestic legislation. It is precisely because the supremacy of the retained EU law is kept that it is necessary also to have the potential for the general principles to have that supremacy as well, because they are essential to the purpose of interpretation of that law.
The Solicitor General
I wanted to deal with the issue in this way, because it seems to me that the nub of the issue that my right hon. and learned Friend is concerned about is with regard to the rights of challenge relating to pre-exit causes of action. It would be possible to retain those, and in relation to executive action even after exit in areas covered by retained EU law. We can agree that there should be appropriate mechanisms for challenging the actions of the Executive. I am happy to discuss further with him what might be needed. I am also willing to discuss whether there needs to be some further route of challenge on secondary legislation.
The rights landscape is indeed complex, and we are seeking with this Bill to maximise and not remove any substantive rights that UK citizens currently enjoy. In view of my commitment to look at this again, I invite my right hon. and learned Friend not to press amendment 10 and to agree to work with us in this shared endeavour. The Government will bring forward our own amendments on Report for the purposes of clarifying paragraph 3 of schedule 1.
The Solicitor General
Let me turn to paragraph 3(1) of schedule 1 to be absolutely clear. I am interested in looking at all aspects of that provision: sub-paragraphs (1) and (2).
Mr Grieve
I am most grateful to my hon. and learned Friend, who has made a really important concession at the Dispatch Box, which I much appreciate. It clearly reflects the disquiet that has been shown across the House. I can tell him now that, in the light of that, I will not be pressing my amendment to a vote. However, it is clear from what he has said that although some of the issues that I have raised have been met, I ought to put it on record that it is also clear that the issue about whether this could be used to disapply primary legislation appears to remain an area of potential disagreement between us, which I hope we may be able to iron out. I have to say that it is a strange area of disagreement, given that elsewhere we have precisely the possibility of that happening, by virtue of keeping the supremacy of retained EU law.
The Solicitor General
As I have said, I want to ensure that the dialogue that has been opened continues. My right hon. and learned Friend knows that at all times the spirit with which he and other hon. Members have tabled amendments has been entirely understood and respected by those on the Treasury Bench. We have never sought to pillory Members for doing the job of scrutinising legislation. I have been there myself many times and can remember tabling dozens of amendments in order to probe the Government’s intentions in a Bill.
The Solicitor General
I make it clear that, in the words of both the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton, today and, previously, the Secretary of State for Exiting the European Union, we are seeking to publish such details. If there are any further concerns, we can have a continuing dialogue to ensure that the information is in a comprehensive form that seeks to address the issues raised today and elsewhere. The publication on 5 December will therefore be a meaningful event that assists everybody in greater understanding and assists greater progress on getting this process right.
On the question of general principles, I emphasise that there are good reasons to say why it would not be appropriate to incorporate the constitutional and administrative principles of the EU as free-standing principles in our law by inserting a specific right of action, or to incorporate the remedy of striking down domestic legislation based on incompatibility with EU law principles, when we are no longer a member of that institution. First, some of these principles will, indeed, cease to make sense when we have left, except for the purpose of interpreting retained EU law, whereas other principles are already, and will continue to be, reflected elsewhere in our domestic law anyway.
Mr Grieve
Has not the Solicitor General, again, just answered his own question? I appreciate that some of the general principles will evaporate because they cease to be relevant, but those that are relevant to the interpretation of retained EU law must still be relevant because they will be used as a tool and aid to interpretation. In those circumstances, why should an individual or a business be deprived of raising them as arguments for saying that, in fact, this law is supposed to be supreme, and therefore able to overcome our own domestic legislation, and ask why the general principles cannot be used to have that bit of offending domestic legislation set aside? I just do not understand the rationale.
The Solicitor General
The rationale is quite straightforward in the sense that, in seeking to achieve maximum certainty, there is danger in allowing the system to create a situation in which the law might rapidly degrade in a way that does not achieve such stability and certainty. I accept it is almost reverse logic, but there is logic in trying to make sure that we have an identifiable and pretty understandable body of retained EU law.
I give the example of the EU principle of good administration, which will not have any relevance to our UK law after exit because, of course, the bodies vested in EU agencies will be returned here and all the normal domestic rules about the exercise of such powers by public bodies will apply. Another example is the principle of subsidiarity, which does not make sense outside the concept of EU membership.
Secondly, the Bill will, of course, take a snapshot of the law as it stands at the moment we leave. Retaining a right of action based on general principles of EU law, which will of course change in the future, would lead to uncertainty for businesses and individuals about their rights and obligations if we end up in a situation where pre-exit legislation could be struck down, or where administrative decisions could be challenged, on the basis of those principles.
In other words, that is an echo of what I was just saying to my right hon. and learned Friend. This is particularly the case given the uncertainty about the way in which principles could develop or about the circumstances in which they would apply after exit. It would make no sense to bind ourselves to such an imprecise, open-ended and uncertain set of principles—it does not mitigate legal uncertainty, but increases it. It makes no sense, once we are no longer an EU member state, to bind ourselves to a set of principles that are the EU’s judge-made constitutional principles, when we have our own constitutional and common-law principles. Such an approach risks duplication and confusion.
Perhaps more fundamentally, outside the context of EU law, the ability for courts to disapply primary legislation is just inconsistent with the way our constitution works and the balance of powers that has to exist between the legislative and judicial branches.
The Solicitor General
No, I will not give way, as I need to develop my point.
For example, in 2015, in their legal challenges to the domestic legislation standardising the packaging of tobacco products, the tobacco companies reserved their right to claim Francovich damages should they succeed on the substance of their claims against the Government. I make this point because any suggestion that removing the Francovich procedure reduces access to justice for the average citizen is not reflected in the UK experience.
Mr Grieve
I am very grateful to my hon. and learned Friend. I understand everything that he is saying. He knows what I have said about Francovich damages and their disappearance being inevitable, but the point about the transition is key. I have to say to him that it is not a comfortable argument for a Law Officer of the Crown to make to suggest that just one person, or one business, being deprived of a legal right is an acceptable circumstance, because it plainly is not.
The Solicitor General
I did not say that. If that was the impression that was created, I am afraid that my right hon. and learned Friend is mistaken. What I am talking about is trying to balance out and put into context the use of this particular procedure, which needs to be done because we have not heard the other side of the argument. That is what I am seeking to do.
By contrast, all existing domestic law routes of challenge and remedies for breaches of retained EU law will remain undisturbed. For example, this provision does not affect any specific statutory rights to claim damages in respect of breaches of retained EU law—such as under the Public Contracts Regulations 2015—or the case law which applies to the interpretation of any such provisions. Nor does it affect the right to challenge the decisions of public bodies by way of judicial review. Claimants will also still be able to seek remedies through the law of tort, by establishing negligence or by a breach of statutory duty, and they will also still be able to make a claim for restitution for unlawfully levied tax or charges.
The existing right to Francovich damages is linked to EU membership and the obligations that we have as a member state to the EU at an international level. There is clearly a difference between substantive EU law, which is being kept by the Bill to prevent legal uncertainty, and the supranational procedural rules, principles and frameworks that will no longer be appropriate once we have left the EU.
Let me turn briefly to amendments 139 and 302, which take a slightly different approach. They would maintain the right to Francovich damages in domestic law, but only in relation to pre-exit causes of action. Amendment 335 would similarly maintain the right to Francovich damages in domestic law for causes of action occurring during any transitional period. The Bill sets out elsewhere—at paragraph 27 of schedule 8—that the exclusion of the right to Francovich damages would apply only in relation to claims that are brought after exit day.
I would like to assure my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan), and indeed all Members, that we will consider further whether any additional specific and more detailed transitional arrangements should be set out in regulations.
The Solicitor General
Perhaps I can forgive my right hon. and learned Friend his eagerness to hear the remarks that I was going to make. I am sure that when this debate finishes he and I will continue the dialogue that we have had for some time about these matters.
It would not be right to maintain, in general, such an open-ended right to this form of damages after exit for any and all potential pre-exit causes of action. I am concerned that we would end up with an almost indefinite trail of cases. That is not good for certainty, and it is not good for the transition we want to make.
European Union (Withdrawal) Bill
Dominic Grieve ExcerptsTuesday 14th November 2017
(6 years, 6 months ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 14 November 2017 - (14 Nov 2017)
Mr Dominic Grieve (Beaconsfield) (Con)
I am most grateful to my hon. Friend. Does he recognise that there are two different issues relating to exit day? Some of the amendments were tabled to express the fear that there might be multiple exit dates. That is very different from fixing a day. Obviously, under article 50 there is an expiry date, but, as my hon. Friend knows, article 50 itself contains provision for a possible extension of the period if that is what is needed to conclude an agreement. That is why I find the Government’s amendment so strange. It seems to me to fetter the Government, to add nothing to the strength of their negotiating position, and, in fact, potentially to create a very great problem that could be visited on us at a later stage.
Mr Baker
My right hon. and learned Friend has made his point with considerable clarity. Of course I accept that the article 50 process involves certain provisions, but I should say to him that a number of learned voices in private expressed concern about the existence of a degree of elasticity in the sunsetting of the powers in the Bill, and, for that reason, were anxious for us to fix the exit date. I should also say to him that, while he made his point with his usual clarity, other Members expressed the view that we should put beyond doubt the time and the date when we leave the European Union, and that is what our amendment does.
Mr Baker
No. I did say to my right hon. and learned Friend, and the Committee, that I was going to get on with it. If I give way to him, I will not make the progress that I need to make.
We said on Second Reading that we would listen to the concerns of the House, and our amendment delivers on that promise. Ultimately, the Government want the Bill to provide as much certainty as possible, and we are happy to consider amendments that share that goal. I hope that in the light of this the right hon. Member for Birkenhead (Frank Field) will be willing to withdraw his new clause, and hon. and right hon. Members with related amendments will withdraw them, too.
Paul Blomfield
I agree with the hon. and learned Lady. In fact, the Brexit Secretary talked about the Court in those terms yesterday.
Mr Grieve
I am listening carefully to the hon. Gentleman. Is not part of the difficulty that there is a sense of people being disingenuous about the reality of the process of Brexit? Of course it is possible that, at the end of this, despite how we pass this legislation, the Government will come back with a withdrawal agreement Bill—the statute they have promised us—that does the very thing they will not admit at the moment: keep us within the jurisdiction of the Court of Justice of the European Union during a transitional period. Would it not be better, and would it not help us in our debates on this Bill, if we had a bit of honesty and clarity from all sides about the implications of withdrawal, about how we have to go about it and about the options—sometimes the lack of options—that may be open to us?
Paul Blomfield
I very much agree with the right hon. and learned Gentleman. Otherwise, we will face the nonsense of the Government introducing new legislation effectively repealing the repeal Bill, or a key part of it.
Sir William Cash
I had actually spotted that, Dame Rosie, and I am most grateful to you for confirming that I am in order.
Let me now touch on some of the issues that arise from this continuous emphasis on the virtues of the European Court of Justice. There is the constitutional principle, which I have already explained, and there is the case law, which I have also already explained. But it goes further than that. The very great Lord Justice Bingham, in chapter 12 of his book “The Rule of Law”, describes the relationship between the courts and Parliament. He comes down unequivocally in favour of Parliament. He makes it clear that when Parliament passes a Bill such as the one that we are to enact, it will override all the laws in the European system that have shackled us so far, and also all the Court judgments, save only that we have agreed, by virtue of the retained law, to transpose some aspects of the process to which we have become used, and which we can decide what to do with at a future date.
Sir William Cash
I certainly will; I should be only too delighted. I have been waiting to hear from my right hon. and learned Friend, whom I happen to know very well, and for whom I have great respect. I shall listen to him with interest.
Mr Grieve
I do not think my hon. Friend can have it both ways. A moment ago, he was talking about direct effect. There is no doubt that if we leave the European Union, direct effect will cease on the day we go; but, as I am sure he knows, we are signed up to about 800 treaties with arbitral mechanisms that can lead to judgments affecting the United Kingdom, which we then undertake to implement, sometimes by changing our own laws. I do not quite understand why my hon. Friend has such an obsession with the Court of Justice of the European Union if its direct effect will be removed, although we will have to be subject to it during the transitional period as we are leaving.
Sir William Cash
I do not think that matter has been entirely settled, by any means. The hon. and learned Member for Edinburgh South West (Joanna Cherry) earlier referred to a lunch she was at, where it appears that she was told we were going to be subject to the European Court of Justice, and my right hon. and learned Friend has made exactly the same point.
I have to say that there are serious questions about the nature of the European Court. The problem is that the European Court is essentially not an impartial court at all. It has never discharged the function impartially, and from the early 1960s it developed a range of principles, such as those of the uniform application and effectiveness of EU law, that it then expanded of its own volition into the general principles of the supremacy and direct effect of EU law over national law. These judge-made principles had no basis in the EU treaties until the Lisbon treaty, which my right hon. and learned Friend, who was then Attorney General, opposed. The fact is that until Lisbon—
Yvette Cooper
Clearly, we need more transparency.
I want to draw my remarks to a close. My amendment gives Parliament the opportunity to indeed take back control. The hon. Member for Stone (Sir William Cash) said he wants us to debate in this House how we are governed. Well, then he should vote for my amendment, rather than concentrate power in the hands of Ministers. At a time when we have seen democratic values and democratic institutions undermined and under threat right across the world, we have an even greater responsibility to ensure that there is a proper democratic process and that we follow our obligations that come with the parliamentary Oath we took. So much of the debate we had during the referendum was about parliamentary sovereignty. What my amendment does is make that real.
Mr Grieve
It is a great pleasure to follow the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) in this debate, particularly as the matters on which I wish to touch very much concern her amendment and some of the others we have had.
I hope that the House will forgive me if I start by dealing briefly with the opening remarks of the right hon. Member for Birkenhead (Frank Field). I am sorry he is not in his place, but I hope that he will forgive me if I say that the words he articulated were ones that I could fully understand and appreciate—heaven knows I have heard them often enough from constituents and from right-thinking people who want the best for our country—but that contained simplicities. Those simplicities simply do not match the problems this House faces in disentangling us from our relationship with the European Union. This issue has bedevilled the entire debate on Brexit and remain, and it is one reason why we find ourselves where we are today.
I happen to believe that what we did last year was a great and historic error. I cannot help it, and nothing that has happened since is going to alter my view. I recognise my responsibility as a Member of Parliament to try to give effect to what the public asked for in their response to that referendum. But in doing so, I am certainly not willing to suspend my own judgment, particularly when I have to witness what I see as an extraordinarily painful process of national self-mutilation, which I am required to facilitate. I cannot escape that; that is what I feel, and I am not going to abandon it because I am ordered to do so by anybody else.
With that in mind, I have to say what the right hon. Gentleman is asking for is the desire perhaps of many people in this country, which is to go to bed at night and wake up to find that the whole thing is over and done with. Unfortunately, it is not going to be over and done with for a very long time. The problem we have in this Bill, and on which we have to focus, is how we try to take this risky, dangerous—for our economy, our national security and our national wellbeing—and difficult process to a reasonable outcome. That is the challenge we have got. In doing that, Parliament cannot simply abdicate its responsibility to the Executive. Of course the Executive have to get on with the business of the complex negotiations, but Parliament is entitled to take a check on this at every conceivable stage.
I have to say to my colleagues on the Treasury Bench that the problem is that as the difficulties have piled up—in my view, they were inevitable, predictable and predicted—the tendency has been for everybody to get more and more brittle, more and more unwilling to listen, and more and more persuaded that every suggestion that is being made is in some way a form of treason. I have to say, with the deepest regret, that this culminated last Friday with a mad amendment, which I shall come back to in a moment. It was tabled, I believe, without any collective decision making in government at all and it was accompanied by bloodcurdling threats that anybody who might stand in its way was in some way betraying the country’s destiny and mission. I am afraid that I am just not prepared to go along with that.
Paul Farrelly
I welcome the amendment tabled by the right hon. and learned Gentleman that would remove the Alice “Through the Looking-Glass” absurdity of there being different exit days for different purposes. I was an early signatory to all his amendments because they are eminently sensible. The right hon. and learned Member for Rushcliffe (Mr Clarke) described entertainingly the reasons for the remarkable metamorphosis of the Bill, from one that allowed Ministers to name an exit day or different days by regulations into one that names a day and a specific time. It was a sop to the denizens of what he called the fourth row below the Gangway. Has the right hon. and learned Member for Beaconsfield reflected on what such a fundamental change signals to our partners in the European Union about how serious we are and how carefully we have thought through this crucial process?
Mr Grieve
There is no doubt that some of the problems we have are not going to be helpful in our negotiation. Equally, it is right to say that the more we can have mature, considered and sensible debate in this House, the more we improve our ability to negotiate with our EU partners.
I have tabled a number of amendments. As with all amendments, some are multiple choice—we have to do this in this House, because it is how we go about looking at and examining legislation—and some are probing amendments. Some are, in my view, more important than others. I tabled the one that hon. Gentleman highlights because the Government did not really explain that they wanted multiple exit dates. I wanted to tease out why and to suggest that one exit date might be better because of the consequences for the use of Henry VIII powers thereafter, but there might actually be a justification for what the Government are doing. All that needs to be worked through in the legislation, and that is what I have sought to do.
I say to my right hon. and hon. Friends on the Treasury Bench that over past weeks we have had some really sensible, constructive discussions on some of the areas covered by the amendments that I have tabled. I hope very much indeed that we can achieve some degree of consensus, in which case some of the amendments, whether on triage or the way we treat retained EU law, might not be required. I do not wish to get diverted into all that; I shall come back to it in later debates. The trouble is—I repeat this—that it all gets marred by events such as those last Friday, when extraordinary amendments are suddenly magicked out of the blue that simply do not make any sense at all.
When I read the amendments and those consequential on them, which I must say I saw only this morning, I saw another problem: as has already been highlighted, one of the consequentials seemed to me to totally undermine the purpose of the main amendment, to the point where the conspiracy theorist in me made me think it was a sort of double deceit or double bluff—that it was intended in some way to give the impression to some of my right hon. and hon. Friends who really worry about this that they were being offered this tablet of stone on our departure, but it was in fact teasingly capable of being shifted. My hon. and learned Friend the Solicitor General sent me a text earlier that said that I was mistaken and that that was not the intention—that it was the very reverse.
I am not a parliamentary draftsman, and I know that there are always different ways in which an amendment to a statute can be read. I remain of the view, though, that the wording is very peculiar indeed if the intention is to exclude the possibility of playing around with the exit date, which is being offered as a talisman. I must say to my hon. and learned Friend the Solicitor General that I did naughtily begin to wonder whether in fact the parliamentary draftsman was so appalled at the folly of what the Government were doing that he had sneakily altered amendment 383 to try to offer them a lifeline in case they came to regret what they had done. I am sure that that is being very unfair to the parliamentary draftsman, whom I know always does what is requested of him or her.
Chris Bryant
The tendency of any Government, especially when they have such a major project on their hands, is always to try to manage the project and to manage Parliament. Has the right hon. and learned Gentleman discovered over recent weeks that the sad truth of the matter is that there is a consensus in the House that embraces all those on the Opposition Benches and a significant number of Government Back Benchers? It actually embraces half the Government—I can see at least three, possibly four, Ministers sitting on the Front Bench who would sign up to his amendment. Would not it be far more rational for the Government simply to calm down about this process and try to establish a consensus that can carry the country forward?
Mr Grieve
I endorse what the hon. Gentleman says. That is precisely what I wanted to start suggesting to Ministers. There are a number of key areas in this debate this afternoon. The first is the recognition, belated but nevertheless I am grateful for it, that leaving the EU requires statutory authority from this House to make it part of the rule of the law of our land. It is a very important principle. Indeed, I detect that the Government also recognise that if, at some point in the future, we get beyond transition we will probably need another statute to alter the law of our land for any final agreement that we have with our EU partners. We will have to take it in a measured way, and the Government will have to accept that Parliament, being sovereign, must, at the end of the day, have the ability to support or reject this. There is no way around that.
Of course there are the hypothetical questions, such as “Well, there might be nothing to reject because we might be falling out of the European Union with no agreement.” Indeed, yes, but we will discover that when the time comes. In the meantime, the Government must get on with their negotiation, and we can carry on scrutinising them on that. At the end, we want a statute. That statute—I think that this has been acknowledged by the Secretary of State—has got to come before we leave.
That then brings us to a critical issue in this debate. The best point made by my right hon. Friend the Secretary of State yesterday was that, whereas moving into transition is a qualified majority decision, getting an extension to article 50 requires unanimity. Therefore, the Government may be living with legitimate anxiety that there could be circumstances in which, running up to the wire, there could be difficulty implementing the whole thing by statute. I personally think that that seems inherently improbable, because, on the face of it, if our partners agree a deal with us, why would they then decide to pull the rug from under our feet in such an extraordinary fashion—I know that they talk about “perfidious Albion”, and we probably think that they are all garlic eaters—to tell us that we cannot have an extension to article 50 for the necessary two or three months to take through our statutory processes while they have to take their processes through the EU Parliament?
Angus Brendan MacNeil
Was the right hon. and learned Gentleman alarmed, as I was yesterday, when, after mentioning to the Secretary of State that the Prime Minister had asked in September for a two-year extension—six months after she had triggered article 50 —he did not seem to have a clue when the EU 27 might possibly agree to it? Some of the media think that that extension will automatically happen, but, as we speak, there is absolutely no guarantee that we will get it. Is he alarmed that the UK might indeed find itself out because of its own actions in March?
Mr Grieve
There are massive uncertainties in all this, and I do not want to pile the gloom on the Treasury Bench. All I will say is that there are great risks. I do understand that the Government have an important point on this, but if that is the case, the proper dialogue that should be taking place between those on the Treasury Bench and the House is how we craft and alter this legislation both to emphasise the statutory process to be followed and to make sure that the only circumstances in which it is not followed—clause 9 has to be used as an example—is where it would be impossible to get an article 50 extension to enable the statutory process to take place before we go. If we do that, we will start talking sense in this House, rather than the polemical nonsense that we have been talking over the past few days.
John Redwood
When Czechoslovakia decided to form two countries with two Governments—a very complicated task—it took six months planning and was implemented over a weekend. Why does my right hon. and learned Friend think that the 16 months remaining is not enough time in which to reach an agreement or to reach the sad conclusion that an agreement is not possible in the mutual interests of both sides, and to do all that in an orderly way? Surely 16 months is more than enough time to sort this out.
Mr Grieve
I cannot help it that the reality is that we entered into a partnership that now includes 27 other member states. We cannot just magic that away; they all have their interests, and they will all have to be taken into consideration at the end. As we have seen with trade agreements that are reached with the EU and other states, they take time. Indeed, my right hon. Friend and some of my other hon. Friends are, frankly, delusional in their belief of the speed with which these wonderful new trade agreements with third countries will be concluded once we leave the EU. My main anxiety on that topic is that there are 759 external treaties that come through our membership of the EU and that we are in danger of losing with amendment 381, tabled by the Government, in respect of putting a writ-in-stone date on when we have to leave. That should worry us just as much as any other aspect of leaving the EU.
Peter Kyle (Hove) (Lab)
Is not the real ludicrousness of amendment 381 that it is unenforceable and there is no punishment if that law is broken? As a former Attorney General, will the right hon. and learned Gentleman tell us the point of having a law for which—if the date is extended and the law broken—there is absolutely no consequence? The Minister will not be sent to prison for breaking it. It is a worthless political gesture.
Mr Grieve
I hope that the hon. Gentleman will forgive me, but I do not entirely agree with him. If the measure stays on the statute book, the consequence would be that at 11 pm on 29 March 2019—even if the agreements, transitional arrangements and everything else have not been worked out—we will drop out of the EU, potentially into the void that so much of this legislation is apparently designed to prevent. All the possible benefits of continuing in transition would not be available, so this actually matters very much indeed. That brings me—although I do not want to take up the Committee’s time—to the infamous amendment 381.
Amendment 381 was sprung on the House, sprung on the Conservative party and certainly sprung on me—after weeks of talking gently to my ministerial colleagues and trying to find a sensible way through, which I continue to want to do—and suddenly landed on us as a diktat. It is quite simply unacceptable because it fetters the Government’s ability to carry out this negotiation, which makes me seriously question their competence, and it disenfranchises the House from properly exercising its scrutiny role, with the potential that, in fact, is almost an invitation to running into the buffers. Although I do not happen to believe that this is what the Government want to do, it certainly appears to play into the hands of those who seem to be so eager that we should leave the EU with absolutely no agreement whatever.
I seriously worry that I go to audiences of the kind that seem to extol the virtues of some of my colleagues on this side of the House, and I am told that only a departure from the EU without any agreement at all can detoxify us of the taint of our participation. Those were the very words used to me at the Conservative party conference. All I can say is that the individuals who are saying these things are utterly misguided, do not understand how a parliamentary democracy works and do not understand how an international community operates. But, whatever their grievances may be, they are the people to whom we have to sensibly articulate an alternative approach.
I am really pleased that amendment 381 cannot be put to the vote this afternoon, because I have to say to my right hon. and hon. Friends that I will vote against it. There are absolutely no ifs, no buts and no maybes about this—no arm-twisting and nothing that can be done to me in the intervening period. It is unacceptable and I will not vote for it. I will not vote for it if I am the only person to go through the Lobby to vote against it. The sensible thing for Ministers to do is to go away, have several cups of tea, think again, continue talking to me about all the other sensible things we have been talking about and on which we are likely to reach agreement, and just focus for a moment on where there is unanimity in this House about how we should proceed.
Mr Jenkin
I will make my point and then give way.
The point is that we cannot go into the negotiations saying, “We have signed up to article 50, but we do not accept that we might have to leave after two years. We might come to you begging for a bit more time.” That will not put us in a very strong negotiating position.
Mr Grieve
I should preface my question to my hon. Friend by saying that, in my view, there is no evidence at the moment that public opinion on this issue has shifted at all since the referendum. But let us just suppose, as a hypothesis, that by the end of next year it becomes clear from opinion polls that 90% of the population believe that a mistake was made in the triggering of article 50. Does my hon. Friend seriously believe that we as a House should entirely ignore that evidence, if it were presented to us repeatedly?
Mr Jenkin
My right hon. and learned Friend is a very able barrister, and he presents his case extremely well, but we really are into hypotheticals now. [Interruption.] It was my right hon. and learned Friend who used the word “hypothesis”.
The fact is that article 50 was passed by an Act of Parliament, the European Union (Notification of Withdrawal) Act 2017, by 498 votes to 114 on Second Reading of the Bill that became that Act. All that these three amendments do is align this Bill with what the House voted for so overwhelmingly.
Mr Leslie
My proposed new clause seeks to elicit from the Government information on how they are going to deal with the issue. The Prime Minister has said that she accepts that the European Court of Justice would need to continue to have jurisdiction during a transition. However, there are problems in the Bill.
I invite hon. Members to turn to page 3 and read clause 5(1), which states:
“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.”
Therefore, under the Bill as framed, the ECJ arrangements will not apply beyond exit day. Further down on page 3, clause 6(1) and (2) similarly state that no regard will be made to the European Court after exit day.
Mr Grieve
My hon. Friend says that it is not meant to, but I cannot criticise the hon. Member for Nottingham East (Mr Leslie) for raising the issue, because we are hearing more and more about transitional arrangements. Of course, that highlights—does it not?—the fact that this Bill can do only part of the task that we have to do altogether. I think that it is right that we seek in vain to amend this Bill, because we will not able to make it do something that deals with transitional arrangements that we currently know nothing about.
Mr Grieve
My right hon. Friend raises a very important issue, and it is not just a transitional issue; it is a rule of law issue, and is about legal certainty. My right hon. Friend is absolutely to raise it, and she may agree with me that the Government are going to have to deal with this, because ultimately it is a fundamental principle of law that people should be able to have that certainty when they commence actions.
Mrs Gillan
My right hon. and learned Friend, who is also my constituency neighbour in Buckinghamshire, knows that I have been preoccupied with this for some time. Of course, there is also that principle of UK law called legitimate expectation, which is based on the principles of natural justice and fairness, and seeks to prevent authorities from abusing power, and I think that that is most important.
Essentially, this principle ensures that the rules cannot be changed halfway through the game if an individual had a reasonable expectation that they would continue. Changes to UK law can only happen prospectively—in other words, they can only apply from a point in the future onwards—and cannot be applied to the past. This means that anyone lodging court proceedings can do so knowing that the rules that applied at the time they lodged those proceedings will apply to their case. If that was not so, the law could be retrospectively changed in favour of the state.
Mrs Gillan
The hon. and learned Lady makes a valid point. I am trying to give the Government an opportunity to examine this, as I think it is very serious. I also think that no British Government would want the sort of unfairness thrown up by the anomaly that has arisen from the way the Bill is drafted.
In fact, the repeal Bill already states in paragraph 27(3) of schedule 8 that actions begun prior to Brexit, including Francovich, can continue and can rely on EU legal principles. However, I think there is an error in the Bill, in that it does not allow anyone who has commenced an action prior to the day of exit the right of a reference to the European Court, which they could have reasonably expected when lodging their claim in the court prior to Brexit.
Mr Grieve
That must be wrong as well. In the past, when we have had references to the Privy Council, for example, and a country has terminated those references, the references have continued after the date of termination until all the cases going through the system are completed. It must follow that references to the ECJ—or CJEU, perhaps, to give it its full title—must be able to continue after the date of exit.
Mrs Gillan
My right hon. and learned Friend makes the same point that I am trying to make. Likewise, the Bill does not allow anyone who has suffered harm because of an act of the state in the period prior to the day of exit the right to lodge a claim under the rules as they stood at the time they were harmed.
Mr Grieve
Is not part of the problem that this is an area of law that has quite a political—with a small “p” —aspect? In reality, this law has been entrenched when it comes from the EU, and it represents a number of areas that have been treated by some as fundamental rights.
The difficulty for the judiciary is that they will be asked to continue interpreting this law—this is the nub of it—without real political guidance as to what emphasis they should attribute to it in future in light of the emphasis it has been given in the past. It is not just any old law but something rather more complex and, for that reason, it is more sensitive to the judiciary’s interpretation.
Paul Blomfield
The right hon. and learned Gentleman is right, and that is what we seek to address with amendment 306.
I will briefly address some of the other amendments in the group. We support new clause 14, in the name of my hon. Friend the Member for Nottingham East (Mr Leslie), as it sensibly calls for a report to be laid before Parliament on the interpretation of EU law during a transitional period.
We also support amendment 137, in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry) and others, as it seeks to have UK courts pay due regard to any relevant decision of the ECJ when interpreting the new category of retained EU law.
Amendments 202 and 384, in the name of the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), would allow matters pending on exit day to be referred to the ECJ, which is clearly common sense, and we are pleased to support the amendments. We also support amendments 203, 353 and 354, in the right hon. Gentleman’s name, on the definitions of EU retained law. Amendment 357, tabled by the hon. Member for Bromley and Chislehurst (Robert Neill), raises important issues, and I look forward to the Minister’s clarification. We support amendment 358, which would help with the interpretation of EU retained law.
I end on the same note on which I began by urging the Government to accept amendment 278 and its consequential amendments and, in doing so, to put aside their obsession with the ECJ so that we can secure the effective transitional deal with the EU that they, we, business and trade unions want to achieve.
Dominic Raab
First, let me thank my right hon. Friend, the Chair of the Women and Equalities Committee, for her intervention and for highlighting this important issue constructively. I have looked carefully at the report of her Committee and had discussions with the Equalities Ministers on the points she has made, so today I can give her the reassurance, and tell the House, that we have commissioned work to be done on an amendment that the Government will table before Report. It will require Ministers to make a statement before the House in the presentation of any Brexit-related primary or secondary legislation on whether and how it is consistent with the Equality Act 2010. I hope that gives her the reassurance she needs that the Government are serious about addressing the legitimate point she has raised.
The point I was making before my right hon. Friend’s intervention was that once the UK leaves the EU, the domestic courts will not be able to refer cases to the ECJ. Clause 6 also provides that domestic courts and tribunals will not be bound by or required to have regard to ECJ decisions made after Brexit.
Dominic Raab
May I just finish this point, because I am at risk of answering the question before my right hon. and learned Friend puts it? As I say, UK courts will instead be able to take those post-exit judgments into account when making their decisions, if they consider it appropriate to do so, as they can, of course, with judgments of courts from other jurisdictions—common law, around the Commonwealth and elsewhere.
Mr Grieve
A number of different points feature in all this, but there is one point about the legal certainty, which was raised earlier. It is one thing to be able to take a case to the Supreme Court, but under a previously set up regime people could take it as a reference to the ECJ. Have the Government considered the propriety issues on removing that right for a case that is current? There is an issue to address there. The Government may be able to provide precedent and justification for what they are doing, but the issue troubles me. This strikes me as an odd way of going about things simply for the sake of trying to get rid of the ECJ in one fell swoop, which I think will be rather difficult in any case for other reasons.
Dominic Raab
I hope that I can give my right hon. and learned Friend some reassurance as the Committee makes progress. Some of what he says relates to clause 5 as much as to clause 6, but let me have a go at addressing it today. We may well return to it next week.
Dominic Raab
I am not quite sure that I understand my right hon. Friend’s forensic point. It is a feature of the common law that UK courts already take into account and consider principles and precedents from other jurisdictions, but they do so with full autonomy as to how they might apply it, where they have discretion under the normal canons of interpretation. We are effectively seeking to apply the same basic principles, through this Bill, to retained EU law and the interpretation of it.
Dominic Raab
I am going to make some progress, as I have given way once. I want to turn to some other amendments; otherwise, I will not give them the attention that they rightly deserve. I turn to amendment 357 in the name of the Chair of the Select Committee on Justice.
Dominic Raab
My right hon. and learned Friend is very tempting, but not at this moment.
I understand the point of amendment 357, which is to provide a default mechanism for transposing EU law where regulations have not been made under clause 7. I can equally see that my hon. Friend the Member for Bromley and Chislehurst is seeking to make default provision for any gaps that may exist in the law to avoid creating not just legal uncertainty, but any legal potholes that may strew the road that lies ahead. I hope that he does not mind me saying that he is, perhaps inadvertently, reinforcing the case for clause 7 because his concern appears to be with the risk that it might not being used comprehensively enough. I certainly share his concern to avoid legal cliff edges and legal potholes, for which I think he is trying to cater.
Dominic Raab
I have given way to hon. Gentleman before. I am going to make some progress.
That priority means getting a close economic partnership, but out of the single market, out of the customs union and without the direct jurisdiction of the European Court. We want to get to that endgame in a smooth and orderly way, with the minimum of disruption.
That is why we want early agreement on the implementation period—on that much, we are agreed. That may mean we start off with the European Court still governing some of the rules we are part of for that period, but the Government are also clear that if we can bring forward a new dispute resolution mechanism at an earlier stage, we shall do so. These amendments do not allow for that. They prejudge and pre-empt the outcome of negotiations, and they introduce legislative inflexibility by saying that we must keep rules in domestic law that would bind us to the jurisdiction of the European Court after we leave, for the full duration of any implementation period, without our knowing for a second how long that might be. The Government are making the case for legal certainty. The Labour party is proposing legal limbo. We cannot accept that.
Mr Grieve
I actually agree—I should make this clear to my hon. Friend—about the issue of transition. I find it difficult to see how we can approach transition in the course of this Bill. However, there is an important underlying issue here, because, ultimately, our future relations with the EU will have a very powerful bearing, whether it is in transition or even after transition, on what we want EU law to do and how we want it to be interpreted, depending on transition, or indeed when we have completely gone, and on the extent to which we wish to be in comity with EU law. This is the elephant in the room, and it will have to be debated at some point as the Bill goes through, because some of it does not have to do with transition but has really to do with an entire future relationship, and it marries with great difficulty with the constant reiteration that the ECJ is somehow going to disappear out of the window.
Dominic Raab
The point is that we take a snapshot of EU law, including case law, at the point of exit, but after that the normal rules of precedent will apply both to the Supreme Court and in Scotland. That will allow a departure from any precedents that apply, which again comes back to the question of how we achieve a smooth and orderly transition from retained EU law while making sure that, when push comes to shove as such case law evolves, the UK Supreme Court will have the last word. That is balance struck in the Bill.
Mr Grieve
I understand that issue, but there is another one. Let us assume for the moment that there is no transition or relationship with the EU at all. Is the Court supposed to apply EU law as currently applied—purposively—or is it supposed to ignore the underlying purpose by which it has constantly been applied heretofore, and in that case, which rules is it supposed to apply? The judiciary have expressed a real concern about what they are supposed to do, because it is quite unclear what Parliament intends. If we forget about a transition or a future relationship, what are they supposed to do? They have rules for interpreting this law at the moment. Are they supposed to stick to those rules when they no longer have an underlying purpose?
Dominic Raab
I have to be careful about not pre-judging or prejudicing what the courts decide to do, particularly given that the thrust of the Bill is to make sure that judges have autonomy and discretion. The reality is that the issue is dealt with in the Bill. It is possible for the UK courts, in relation to retained case law, to look at the underlying purpose or intention of any piece of legislation or any principles that have been articulated. Moving forward, they are free, of their own volition, to depart from any precedence in the usual way. That already applies in relation to wider common law jurisdictions. The question I would put back to my right hon. and learned Friend is: why on earth, when we are leaving the EU and given that we are an open and outward-looking country that does filter, take interest in and take account of different principles from different jurisdictions, would we put on an further elevated status the case law of the ECJ?
Mr Grieve
My right hon. Friend makes an important point, but I wish to emphasise that my own concern is not about retaining EU law in some way, but about getting some clarity, which is certainly not in the Bill. My right hon. Friend may agree that from listening to the Government it does not appear that they are particularly concerned about this matter—yet the judiciary plainly is, and the House cannot ignore that.
Mr Duncan Smith
I agree with my right hon. and learned Friend. It is important that during this and future debates—we will have the opportunity to return to this issue in the debate on clause 5—my right hon. and hon. Friends in the Government take due regard of this issue. The courts have already said that they are unclear and want clarity. It is not always usual for courts to come back and say that they want us to decide, but on this matter they really do. That is important, because there has to be a future point at which they understand that they do not have to have regard to any change in the European Court principles.
I urge my right hon. and hon. Friends in the Government to make that point very clear in the course of this process, and I look forward to their response. I think the Minister, my hon. Friend the Member for Esher and Walton, said that he would return to this issue in the discussions on clause 5, and I would certainly appreciate that.
I know that other Members wish to speak, so I shall conclude. I applaud and support the Government on this part of the Bill. For me, and I think for most of our colleagues, it is the most important element. We can debate money and all these other issues, but who ultimately decides on our laws is the most important element of the vote to leave. I made this point earlier, and I conclude by making it again: the single issue on which the British public voted most was to take back control of their laws. I want that to happen as we leave the European Union.
Sir Oliver Letwin
If the Solicitor General is trying to argue that he is aiming for equality between the jurisprudence of the European Court of Justice and the jurisprudence of the Supreme Court, that poses an insoluble problem for the lower court. One has to trump the other, but if the Bill is trying to make out that one trumps the other, it does not do it. It is really quite important for a human being who speaks English and reads the Bill to be able to see which trumps which.
Mr Grieve
I understand exactly where my right hon. Friend is coming from. I have to say that my reading of this was that once the Supreme Court had departed from the jurisprudence of the European Court of Justice in a particular case, thereafter the Supreme Court’s jurisprudence would be the one that the lower court would have to follow. However, that does not get us past the problem that the Supreme Court is provided with no guidance whatever about the purposive nature of EU law and how it should approach it.
Sir Oliver Letwin
Let me deal with my right hon. and learned Friend’s helpful intervention in two steps. If what he said in the first step about the supremacy of the Supreme Court’s rulings is to apply—which is not inequality, but puts the Supreme Court above the ECJ in the interpretation of these matters for retained law—that is a perfectly clear position, and one that I, as a matter of fact, would welcome; but then the Bill should bloody well say so. However, he is right, in that even if we presume that the Bill will be adjusted—as I am sure it will be, in the House of Lords—to make it clear that that is the case, we face the next problem, which is what it is that the poor old Supreme Court is meant to be doing.
Wes Streeting
I wholeheartedly agree. We hear this fallacy that those of us who warn about a no-deal Brexit are somehow willing to sign up to any kind of bad deal—as if there is a bad deal that could possibly be worse than no deal.
I would like to hear an intervention from anyone on the Government or Opposition Benches who can explain how crashing out of the European Union over a cliff edge with no deal—meaning an immediate end to all existing contractual and legal obligations and to all the frameworks and protections, a hard border in Ireland, and the end of our trading agreements not only with the European Union, but through the European Union to countries across the world—could be worse than any kind of transitional deal. No deal would be the very worst deal, and it is astonishing that there are Government Members who not only entertain the possibility of no deal, but are enthusiastically encouraging it with the views that they put forward.
There have been many problems with the Prime Minister’s approach to Brexit, but in the Florence speech she tried to set out a practical and flexible framework through which we could now give certainty to business about the transition period and, crucially, through which there would be only one set of changes from our membership of the European Union to our future relationship with it once we leave.
This evening, the Government Front-Bench team have driven a coach and horses through the Florence speech. They cannot provide business with the clarity it needs on how the European Court of Justice will operate during transition. They ought to support our position, which is to remain in the single market and the customs union for the time-limited period of transition, because that would give business the certainty it desperately needs.
For Conservative Members to put their ideological vanity against the best interests of the British economy is selfish, reckless and irresponsible, and people should have no truck with it.
Mr Grieve
I will pick up two or three points that have been made in this important debate. There have some magnificent contributions, particularly from my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). I will start with what he had to say because it is central to the debate.
I appreciate what the Government have been trying to do with clauses 5 and 6 on the way in which retained EU law should be interpreted. I agree with my right hon. Friend that the wording is opaque, although I think that I understand the Government’s intention on the role and supremacy of the Supreme Court in developing law, but that still does not get us away from the fundamental problem that EU law is different from our law. Its rules of interpretation are different and its purpose is different.
We will come back to that problem right through this Bill, whether on the charter of fundamental rights or the general principles of EU law. We cannot just take EU law and drop it into our law without leaving guidance on what the Government expect that law to be used for. I worry that the lack of explanation is most peculiar. It is not a question of wanting to keep EU law—I assume that it will all ultimately go away, anyway—but in the meantime there is a lack of clarity, and I can well understand why the judiciary, particularly the senior judiciary, are troubled by the lack of guidance. It is almost as though the Government have found it too embarrassing to want to grapple with it. They want to maintain continuity, but they do not want to maintain the implication of continuity because that is a difficult message to sell to some Conservative Members.
We will really have to look at this as we go through the Bill, and I am quite prepared to try to help the Government to find a way through. It is not that I want to keep its aura, and there are many Conservative Members who do not like it at all, but the simple fact is that we need to look at it.
The other issues that have been raised are absolutely right, but they are not relevant to this debate. We do not have the slightest clue what the transitional arrangements will be. We will have to have a completely separate piece of legislation to sort that out, and I suspect it will take a long time to go through this House. Ultimately, if we have a long-term agreement, there will be an interesting issue about whether we will be instructing our courts to mirror EU law so as to maintain comity with the Court of Justice of the European Union or risk constantly having to readjust our legal frameworks for the sake of that deep and special relationship.
I do not want to disappoint some of my right hon. and hon. Friends too much, but the harsh reality is that our geographical location and our desire to have a close trading relationship with the European Union will inevitably mean that decisions of the Court of Justice of the European Union continue to have a major influence on our law here—I am afraid that was rather disregarded in last year’s referendum. I think that it is called globalisation, and we will have to return to that as we go along.
Dominic Raab
We have listened carefully to all hon. Members in the various contributions and concerns that have been raised, and taken account of the amendments in this group. There are issues we will take away for further consideration. I refer in particular to what my right hon. Friend the Member for Basingstoke (Mrs Miller) said about the Equality Act 2010, and my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) raised her issue powerfully and constructively. My right hon. Friend the Member for West Dorset (Sir Oliver Letwin) also raised a number of points, and I think that we can address those. I think that they are covered by clause 6, but I will take them away and we will work further to make sure we provide the clarity that is required.
Sentencing
Dominic Grieve Excerpts(6 years, 6 months ago)
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Mr Lidington
I understand the principled position from which the hon. Lady approaches the matter. I think it right that there should be consistency in our approach, set by the Government and by Parliament through the appropriate Representation of the People Acts. What the Government propose today provides both clarity and consistency, and enables us to go forward in a way that respects the strong views expressed in this House and among the wider British public, while also respecting our international legal obligations.
Mr Dominic Grieve (Beaconsfield) (Con)
May I, too, welcome the statement and the approach my right hon. Friend has taken in resolving the matter? As he will be aware, the problem has bedevilled many Law Officers of the Crown, and if the matter can be resolved along the lines that he suggests, I have no doubt that our right hon. and learned Friend the Attorney General will breathe a sigh of relief.
Does my right hon. Friend agree that it is of immense importance for this country to be seen to be a leader in human rights—something for which we have a great deal of international respect? We have proven track record of improving human rights, not only on the European continent but further afield. Sending out a signal of our willingness to try to adhere to an international legal obligation is of the utmost importance.
May I also say that, should it be necessary for my right hon. Friend to come back to this House because what he has done proved in some way not to meet matters—I hope that will not be necessary—it ought to be part of a wider debate about how we rehabilitate prisoners? When one removes the matter of our international legal obligations, that is a matter that merits debate, and were he to ask the House for its opinion on it, the House might well not express the same opinion as it has expressed in the past.
Oral Answers to Questions
Dominic Grieve Excerpts(6 years, 7 months ago)
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Mr Dominic Grieve (Beaconsfield) (Con)
I welcome the news that the Government are again considering prisoners’ right to vote. My right hon. Friend the Secretary of State may find that this is a matter on which public opinion and the mood in this House has shifted. It is high time that we remedied something that places us in a very small category of countries. Most countries manage to allow their prisoners to vote—certainly those sentenced to short terms of imprisonment—without the world coming to an end, and it is an important tool for both civic participation and rehabilitation.
Mr Lidington
My right hon. and learned Friend expresses a view that he has held for a long time and has been clear about, and I am sure that he will be following the debate closely. When the Government have reached a view on our approach to the Committee of Ministers meeting, we will share that with Parliament.
European Union (Withdrawal) Bill
Dominic Grieve ExcerptsMonday 11th September 2017
(6 years, 8 months ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts
Mr Lidington
That is a not a verdict with which I agree. Some of the criticisms of the Bill have been exaggerated up to and beyond the point of hyperbole, and I will seek to explain why.
In concluding my comments about why the Bill is needed, I want to stress that the time available to us under the terms of article 50 is limited. We must assume that in March 2019 this country will leave the European Union. That will be the deadline, and therefore by that date we need not only to have primary legislation enacted, but to have established the new regulatory bodies. We will need to have given effect to the secondary legislation that is proposed under the defined powers laid out in the Bill.
Several right hon. and hon. Members have said, “Yes, certain rights may be being preserved, but what about the general underlying principles of EU law?” As I said earlier, when we leave, the treaties will cease to apply to this country, but under the Bill, the general principles of European law, as recognised by the Court of Justice before exit day, or as embodied in extant European legislation, will be retained in United Kingdom law for the purposes of interpreting retained EU law. Existing sources of rights and domestic rights of action will continue to operate in United Kingdom law undisturbed by the Bill. That includes rights such as the right to equal treatment and non-discrimination. Similarly, notwithstanding our exit from the EU, individuals will continue to be able to challenge secondary legislation and administrative action under our domestic law by way of well-established grounds of judicial review.
To take two important issues that have been raised, all the rights and remedies available under the working time directive or the Equality Act 2010 will remain in force, but they will be enforced through the United Kingdom courts—ultimately, our Supreme Court—rather than through the European courts.
Mr Dominic Grieve (Beaconsfield) (Con)
I wonder whether what my right hon. Friend says can actually be correct. The feature of the Bill is that it removes the right of challenge for breach of the general principles of EU law. As a consequence, rights that currently exist and are exercised—indeed, were exercised by our right hon. Friend the Secretary of State for Exiting the European Union—will in future not be available. That is an important point that the Government will have to consider during the passage of the Bill.
Mr Lidington
For the most part, those rights are used when they are given effect through specific items of European Union legislation, rather than in the abstract. My right hon. and learned Friend makes an important point, and it is true that after exit it will not be possible for an individual to bring a free-standing claim, or for the courts to quash an administrative action or disapply legislation on the grounds that it breaks one or more of the general principles of European law, except as those principles have been preserved by the Bill—which will be the case if those principles have been given effect through a specific piece of legislation. That position flows logically from the decision by the electorate to leave the European Union, because that does involve separating the United Kingdom’s legal order from the European Union’s legal order.
The issue of devolution has been the subject of much debate among Scottish Members of Parliament—
Mr Lidington
It strikes me that there have been constructive comments and suggestions from a range of Members, including my right hon. and learned Friends the Members for Rushcliffe and for Beaconsfield (Mr Grieve), my right hon. Friend the Member for Broxtowe (Anna Soubry), my hon. Friend the Member for Totnes (Dr Wollaston), the right hon. Member for Birkenhead (Frank Field) and the hon. Members for Vauxhall (Kate Hoey) and for Blackley and Broughton (Graham Stringer). Between Second Reading and Committee, the Secretary of State for Exiting the European Union and his team intend to discuss those suggestions further with colleagues on both sides of the House.
We accept that we need to get the balance right—for example, between negative and affirmative procedure and between debates in Committee and debates on the Floor of the House—and, as my right hon. Friend the Secretary of State for Exiting the European Union has already pledged, we wish to discuss further the issue first raised by the right hon. Member for Leeds Central (Hilary Benn) about linking the timing of SIs under clause 9 to the date of debates on the withdrawal agreement, although we will have to bear in mind the possibility that that agreement might be concluded only very shortly before the date of exit.
Mr Grieve
My right hon. Friend is discussing matters that will have to be considered in detail in Committee. A sensible programme motion has been tabled, but can the Government assure the House that, if more time is needed because, in truth, we have difficulty getting through the programme within the period specified, they will properly consider making more time available to the House?
Mr Lidington
We think that the 64 hours that have been guaranteed are reasonable, and they compare with the 39 hours and 17 minutes that the Blair Government granted on the Bill to ratify the Lisbon treaty. We have shown today that, where there is good reason to extend debate further, we are willing to consider it very seriously and carefully indeed. I hope my right hon. and learned Friend will take that assurance in the spirit in which it is intended.
I hope that the House will recognise that it is in the national interest that we put this Bill on the statute book and that we deliver the democratic verdict of the British people in a way that allows businesses and individuals to plan for their future, confident in what the law will be on and after exit day. I hope that the House will therefore give a clear vote for the Bill on Second Reading.
Question put, That the amendment be made.