European Union (Withdrawal) Bill

Seema Malhotra Excerpts

Committee: 1st sitting: House of Commons
Tuesday 14th November 2017 Commons Chamber

[Yvette Cooper]

The hon. Lady is right. We had all those debates about taking back control and parliamentary sovereignty, yet somehow the Minister seems to want to rip it all up. The Government are trying to concentrate huge amounts of power in the hands of Ministers, rather than giving the whole of Parliament a say.

Ministers have to stop infantilising Parliament and treating Parliament as if it is the enemy. The truth is that the sky did not fall in because Parliament had a vote on article 50. The Government told us that it would, and they told us that the whole process would be stopped, but it was not stopped because each and every one of us understands that we have obligations and responsibilities towards the referendum result, just as we have obligations and responsibilities towards the negotiation process that the Government have to conduct on our behalf, and that we cannot directly conduct for them. We know that we have those different responsibilities, and we know that we have to take mature and responsible decisions given the complexity of the situation that faces every single one of us. We just do not think that those decisions should be entirely in the hands of Ministers; we think that the whole of Parliament should have a say on something so important.

[Seema Malhotra (Feltham and Heston) (Lab/Co-op)]

My right hon. Friend is making an incredibly powerful speech and argument. Does she agree that having the vote and support of Parliament behind the Government and the action they take would strengthen the Government’s hand in the negotiations with the European Union?

[Yvette Cooper]

I agree with my hon. Friend, because this should be about the whole of Parliament, just as when we had the responsible debate on article 50. We know it is complex. It is our job and our responsibility in a democracy to deal with that complexity, and not just to abdicate our responsibility and hand it over to Ministers because, somehow, it is too difficult for us in Parliament to deal with. Of course it is not too difficult, and of course we are capable of dealing with the complex situation we face.

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[Dominic Raab]

Perhaps I can give way to my right hon. Friend when I come on to her amendments.

I turn to amendment 203, tabled by the right hon. Member for Ross, Skye and Lochaber, and to the related amendments 353 and 354. They would remove clause 6(7) and partially reinsert it into clause 14. Clause 6(7) provides key definitions of terms in the Bill that are crucial for the proper interpretation and full understanding of its content. Subsection (7) aims to alleviate any potential confusion and ensure that there is no vagueness or ambiguity about the different types of retained law mentioned in the Bill. That is vital for those who read, implement and interpret the Bill, because of the different effects of each type of retained law. The placement of the definitions in clause 6 is specifically designed to make the Bill easier to navigate and more user-friendly, by placing the definitions close to where they are used and deployed in the text.

[Seema Malhotra]

Will the Minister give way?

[Dominic Raab]

I am going to make a bit of progress. Wider general definitions are set out in clause 14, and clause 15 provides an index of all the defined terms to make the Bill easier to use as a reference tool. To remove those definitions from clause 6 and only partially to reinsert them into clause 14, as the amendment would do, would undermine the certainty and clarity that we aim to provide.

Without statutory definitions of the different types of retained law, we would undermine the stability of our domestic legal regime after exit and exacerbate the burdens on the court system. Reinserting the definition of “retained domestic case law” into clause 14 would not alleviate that, because it would give rise to the question why that definition had been included, while others had not. Its placement in the body of clause 14, away from its original use in clause 4, would make the text far less easy to navigate—something that we are keen to avoid.

I turn to amendment 137, which is a joint SNP and Liberal Democrat amendment, in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry). Clause 6(2) will allow our domestic courts and tribunals to take into account any decisions made by the European Court, an EU entity or the EU itself on or after exit day, if they consider it appropriate to do so. That will ensure that our courts are not bound by the decisions of the European Court, while enabling them to consider its subsequent case law if they believe it is appropriate to do so. It is widespread practice in our domestic courts to carry out a similar exercise with the judgments of courts in other jurisdictions—I am thinking particularly of Commonwealth and common law jurisdictions—so, in principle, there is nothing new or particularly different here.

The UK has always been an open and outward-looking country, and our legal traditions reflect that. We pay attention to developments in other jurisdictions, including common law jurisdictions, and we embrace the best that the world has to offer, but we do so on our terms and under our control. That is decided by our courts and, ultimately, it is subject to the legislative will and sovereignty of this House. Amendment 137 is therefore unnecessary, as the Bill already provides that post-exit decisions of the European Court can be considered by the domestic courts.

Amendment 137 would go further, however, in that it would require our courts and tribunals to pay due regard to any relevant decision of the European Court. What does “due regard” mean? It is not defined and, indeed, it is far from clear. It is evidently intended to go further than clause 6, and tacitly urges our courts to heed, follow or shadow the Luxembourg Court, but there is no clarity about what would count as due consideration. The amendment would alter the inherent discretion the UK courts already have to consider, without fetters, the case law in other jurisdictions, and it seeks to apply to the European Court a procedural requirement that is stronger but so vague that it is liable to create more, not less, confusion. I hope that I have tackled, or at least addressed the concerns that the hon. and learned Lady has expressed in her amendment, and I urge her not to press it.

I will now turn to amendment 303 in the name of my right hon. Friend the Member for Chesham and Amersham. I thank her for tabling this amendment and for explaining it, as she did, in a very constructive spirit. I recognise that she is representing the interests of her constituents with her customary tenacity, but I will take a few moments to set out why we have taken our approach to the issues and my difficulties with her amendment.

Clause 6 supports the Bill’s core aim of maximising certainty. It is in no one’s interests for there to be a legal cliff edge. The Bill means that the laws and rules we have now will, as far as possible, continue to apply. It seeks to take a snapshot of EU law immediately before exit day. The Government have been clear that in leaving the EU, we will be bringing to an end the direct jurisdiction of the European Court of Justice in the UK. To maximise certainty, any question about the meaning of retained EU law will be determined in UK courts by reference to ECJ case law as it existed before our exit. Using any other starting point would be to change the law, which is not our objective. Our domestic courts and tribunals will no longer be bound by or required to have regard to any decisions of the European Court after that point, but they can do so if they consider it appropriate. These clear rules of interpretation are set out in clause 6.

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[Helen Goodman]

No, my hon. Friend is absolutely right. The problem is this dissonance between the content of the rules and the enforceability of the rules.

I just want to stress this point about the impact on exporters. In the Minister’s description of how the transition period and the future might pan out, there seemed to be no acknowledgement that, in addition to some of these disputes and rights that citizens will be claiming, whether they are under competition law or in the single market, there will also be citizens in this country making claims in the other European countries, or the other 57 third-party countries. In order to export, these countries need to have more certainty about their data protection—we will come on to that another day—about professional recognition, particularly the services, about licensing and about passporting. If those rights are not enforceable, they will be losing that certainty.

At the moment, we have a situation in which half the exports of this country go to the European Union, and 30% go to the other 57 countries in which the EU has negotiated the legal framework. We are talking about 80% of this country’s trade and this Government are not able to tell us what the legally enforceable base will be during the transition period.

The right hon. Member for Chingford and Woodford Green (Mr Duncan Smith) said that it would be very nice if we could have a new arbitration system. Well, I am sorry, but that does not seem to be on offer. At the moment, there are three possibilities. One possibility is continuing with the ECJ, but the Government have set their face against that. Another possibility is to join the European economic area, but the Government have set their face against that. The third possibility is to crash out. The option of the bespoke arbitration system with the European Union will be extremely difficult to negotiate in the 15 months that we have left before the transition period begins.

[Seema Malhotra]

With so many organisations and bodies, such as the judiciary, businesses and the Law Society, talking about the uncertainty that comes from clause 6, does my hon. Friend not agree that it is very challenging to believe the Government that this will be all right on the night when an alternative dispute mechanism would need to be created, designed, drafted, legislated for and in place before we leave the European Union?

[Helen Goodman]

My hon. Friend is absolutely right. It is not just one alternative system; it is 58. It is one with the EU and another 57 with everybody else. This is really not going to happen, and Ministers need to get their heads round the fact that they have some hard choices to make, and they need to be straight with their own Back Benchers and with the public about what those choices are.

The Government are being irresponsible in wanting to repeal the European Communities Act 1972, which is the basis of our membership, and in setting the date at the beginning of the transition period, before they can tell us how they are going to handle that period. It would be great if they could give us a proper explanation because we have not had one yet. Ministers say that the whole purpose of the Bill—the very thing that the Bill is driving at—is legal certainty, but they cannot tell us what the legal position will be in 18 months’ time. The Bill is flawed and I urge Ministers to look constructively at the amendments tabled by the Opposition Front Bench.