European Union (Withdrawal) Bill

Dominic Grieve Excerpts

Thursday 7th September 2017 Commons Chamber

[Mr Davis]

I will make some progress now, and I will give way a little later. I am conscious of the point made by the Father of the House that time will be tight at least on this day. I will give way as much as is reasonable, but I do not want to dilate too long.

[Mr Dominic Grieve (Beaconsfield) (Con)]

Will my right hon. Friend give way?

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[Mr Davis]

I will make some progress now.

Overall, then, the Bill provides for very significant continuity in the law, but there are some elements that simply—

[Mr Grieve]

Will my right hon. Friend give way on that point?

[Mr Davis]

In a moment.

There are some elements that simply will not make sense if they remain on the UK statute book once we have left the EU and in the years and decades to come. It would not make sense, for example, for the Bill to preserve the supremacy of EU law or to make the preserved EU law supreme over future legislation passed by this Parliament. Laws passed in these two Houses after exit day will take precedence over retained EU law.

We also do not believe that it would make sense to retain the charter of fundamental rights. The charter applies only to member states when acting within the scope of EU law. We will not be a member state, nor will we be acting within the scope of EU law, once we leave the European Union. As I said to the House when I published the White Paper on the Bill, the charter catalogues the rights found under EU law that will be brought into UK law by the Bill. It is not, and never was, the source of those rights. Those rights have their origins elsewhere in domestic law or relate to international treaties or obligations that the UK remains party to—for example, the European convention on human rights.

[Mr Grieve]

Will my right hon. Friend give way?

[Mr Davis]

Let me be clear: the absence of the charter will not affect the substantive rights available in the UK. As I have said before at the Dispatch Box, if an Opposition Member or anyone in the House—I am thinking of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve); I will come to him in a minute—finds a substantive right that is not carried forward into UK law, they should say so and we will deal with it.

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[Mr Davis]

I will come to the details in a moment, but there are a number of limitations, one of which is that we cannot impinge on the Human Rights Act 1998. That goes straight to the point that the right hon. Lady raises.

[Mr Grieve]

I understand my right hon. Friend’s point about the charter, because I agree with him that general principles and the charter should be identical—although that does raise the question of why, in those circumstances, the charter should go—but schedule 1 says quite clearly that after we have done this:

“There is no right of action in domestic law on or after exit day based on a failure to comply with any of the general principles of EU law.”

He must agree that that means that the right of the individual to challenge on the basis of the principle of EU law—the law that will be imported into our law by the Bill—will no longer be possible. That is in our own courts—forget about the European Court of Justice. That seems to me a marked diminution in the rights of the individual and of corporate entities.

[Mr Davis]

I am afraid that my old and dear right hon. and learned Friend and I are going to have a difference of opinion. We will put in the Library a letter on this specific issue, as we have already said. [Hon. Members: “When?”] Today. But the simple truth is that these rights, as he should know as well as anybody, have a whole series of origins. Some are from British common law, some are from EU law that we will bring in ourselves, and some are from the European convention on human rights—which, he will note, we are continuing with. All these things will provide those undertakings. Why on earth we need an extra layer of declaratory law I do not know. It was brought in under the Blair Government—perhaps that explains it.

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[Keir Starmer]

I am grateful for that intervention and agree with it.

May I move on to other rights, because they are dealt with more severely? Clause 5(4) singles out the charter of fundamental rights for extinction. There are thousands of provisions that are being converted into our law and will have to be modified in some cases to arrive in our law, but only one provision in the thousands and thousands has been singled out for extinction—the charter of fundamental rights. As the right hon. and learned Member for Beaconsfield (Mr Grieve) argued in an article published yesterday, the principles of the charter provide

“essential safeguards for individuals and businesses”.

That has been particularly important in the fields of LGBT rights, children’s rights and the rights of the elderly.

The Secretary of State asks why this matters. I have here the High Court judgment in the case of David Davis MP, Tom Watson MP and others v. the Secretary of State for the Home Department. This was in 2015, when the present Prime Minister was Home Secretary. David Davis the Back Bencher was bringing to court the now Prime Minister. He will recall that he was challenging the provisions of the Data Retention and Investigatory Powers Act 2014. He was concerned that they would impinge on the ability of MPs to have confidential communications from their constituents. He continued to make that point in debates that we were having a year or two ago. In his argument, he cited the charter. His lawyers made the argument that the charter was important because it went further than the European convention on human rights and therefore provided added protection.

I will not read out paragraph 80 of the judgment, although I am sure that the Secretary of State is familiar with it. As he knows, the Court found in his favour—he was right: the charter did enhance his rights—and rejected the arguments of Mr Eadie, the distinguished QC representing the then Home Secretary, now the Prime Minister. So when the Secretary of State asks whether this move will make any difference, the answer is yes. We can see that from his case. I suspect that if he were still on the Back Benches, he would now be talking to me and others over a cup of coffee about how we should fiercely oppose clause 5(4) and ensure that it came out of the Bill.

[Mr Grieve]

The right hon. and learned Gentleman makes an important point. Reading the mind of my right hon. Friend the Secretary of State, I think he asked why this mattered because he would insist that the general principles of EU law being preserved would replace the charter. However, if they are not justiciable because we do not found a cause of action in our courts, the ability to assert those rights would evaporate.

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[Mr Duncan Smith]

I am grateful for that intervention by my hon. Friend. I know he will be able to make a powerful case in support of the Bill, and he is right, but I will come back to that point.

The basis on which people are arguing—that there has never been a great sweep of powers coming through Henry VIII procedures—is completely and utterly wrong. The reason why I became so concerned about what was happening under the European Union treaties is that section 2 of the European Communities Act 1972 clearly states that all the rules and regulations coming through treaties

“are without further enactment to be given”

immediate legal effect and

“shall be recognised and available in law”.

It goes on to say that

“Her Majesty may by Order in Council”—

Order in Council, which is not the procedure in this Bill—

“and any designated Minister or department may by order, rules, regulations or scheme, make provision”.

We have sat with that for 40 years, and we have been content to let rules and regulations be made in that way.

To those who talk about rule-takers and rule-makers, such as my right hon. Friend the Member for Loughborough (Nicky Morgan), I say yes, that was the case up until the Maastricht treaty, when qualified majority voting came in. We became rule-takers under that provision, and there has never been a more powerful one in British legislative history. I just sound a cautionary note to some of my colleagues on either side of the House who go on about this being the first time; it is not so.

[Mr Grieve]

I have great sympathy with my right hon. Friend’s critique of European Union law. It is one of the reasons why the Brexit referendum ended up in the way it did, but that cannot be a justification for two wrongs making a right. The fact is that we do not need to legislate in this fashion in order to carry out the technical task of leaving the EU, and I remain utterly bemused as to why the legislation has been drafted in this form.

[Mr Duncan Smith]

I am not asking for two wrongs to make a right; I support the principle of the Bill and the need for it, but I recognise that in Committee there will be need to review how some of those checks and balances are introduced, and I hope that is done properly and powerfully. What my right hon. Friend the Member for Haltemprice and Howden said at the Dispatch Box gave indication to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) that there is scope to look at that. So the argument is not about the powers in the Bill; the debate is about how we reassure ourselves as a parliamentary democracy that the checks and balances exist such that, given the very profound nature of what is happening, we can achieve a balance and not delay the necessary changes.

The Opposition are in a peculiar position, but the Scottish nationalists are in a ridiculous position. For years and years they have sat by, content to see all the powers exercised in Brussels exercised there without their having any say. The moment we talk about leaving the European Union and bringing those powers back to the UK, they are up in arms because they feel betrayed that they do not exercise those powers. Where were they over the last 40 years when those powers were given away?

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[Mr Grieve]

It is by no means the only ambiguity in this Bill, but I agree entirely that to ask the judiciary to carry out an interpretation of something that is so oddly and, I have to say, vaguely worded is a recipe for disaster and is something this House should avoid doing.

[Sir Oliver Letwin]

I agree with my right hon. and learned Friend about that and hope that in Committee we will be able to address that head on. My personal belief is that we should address it in the form of changing clause 6(3), to ensure that it is open to—indeed, that we give an inducement to—our courts to move back to the plain words of the texts of the treaties and directives, so far as they judge that can be done without injustice to individuals. That is the principle that most people who voted for leave, and indeed many of us who voted on balance to remain but have been extremely sceptical about the activities of the ECJ and the Court of Justice of the European Union for many years, would wish to see enshrined in this legislation. I suspect that I might even carry my right hon. and learned Friend the Member for Rushcliffe on that point, because he was, somewhat surprisingly, very sceptical about the ECJ on many occasions—I say surprisingly, because, despite his enthusiasm for the EU, which I never quite managed to share, actually he is a very good parliamentarian and a very good lawyer and recognises that we do not want a court that makes its own law. So I think we have a way forward that we can seek to follow in Committee.

None of that should obscure the fact that this is a good and necessary Bill. Nothing that the Opposition have said has suggested that there is any structural deficiency. Therefore, I will vote for it, and I hope all my friends and colleagues on the Conservative Benches and, indeed, many on the Opposition Benches will do the same.

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[Mr Dominic Grieve (Beaconsfield) (Con)]

First, I congratulate the hon. Member for Canterbury (Rosie Duffield) on her maiden speech, which I greatly enjoyed. Canterbury is a city I know well: it is where I spent many of my early years at the Bar, cutting my teeth as an advocate. I hope I can remind myself of some of the lessons I learned there in contributing briefly to this debate.

I shall support the Government in the vote on Second Reading. The Bill is vital: we cannot leave the European Union sensibly without such a Bill on the statute book. The Government need support, and they will have it from me. Nevertheless, I regret to have to say to my right hon. and hon. Friends that unless the Bill is substantially improved in Committee, I will be in no position to support it in its current form on Third Reading.

In many respects, it is an astonishing monstrosity of a Bill. Its first failing is its entreatment of EU law itself. I do not much care for EU law—I did not much enjoy practising it, although I had outings to the European Court of Justice when I was Attorney General—but it is a different form of law from our own, which we imported, and which, in many ways, has filled vast areas that otherwise we would have developed in our own domestic law. So we need to nurture it, because we cannot get rid of it overnight without leaving enormous gaps. In addition, there are safeguards within EU law that do not exist within our law and need to be retained, because otherwise EU law will act unfairly. Again, they are different from our own.

I have a number of areas of concern. The Bill does not deliver clarity. Its importation of EU law is hedged around with ambiguities that undermine one of the key pillars of the rule of law, which is certainty about what the law is. One example is given by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), but there are numerous others. For example, Clause 2(1) is so widely drawn that retained EU law will include domestic law that was implemented entirely domestically but has a link to the EU. That would then make something like the Equality Act 2010 susceptible to change by statutory instrument in clause 7—something which I suspect everybody in this House would regard as completely unacceptable.

[Sir Oliver Letwin]

Does my right hon. and learned Friend agree that we could address that in Committee not through a change to clause 2, which is pretty fundamental, but through changes in clauses 7, 8 and 9, with which we are already concerned?

[Mr Grieve]

Absolutely. I entirely agree with my right hon. Friend. These are all curable, and readily curable, with just a little bit of will.

There is another example on which we have already touched. EU law never used to be divided between primary and secondary legislation. Interestingly, it is all being treated as primary, which has the nice merit—I am sure that someone in Whitehall dreamed this up—that none of it would be susceptible to be quashed by a challenge under the Human Rights Act. That may not matter, but it is capable of causing unfairness when it is linked to the fact that the other area of challenge that would normally be available, which is a challenge because something is in breach of the general principles of EU law, has been delicately removed along with the charter of fundamental rights.

I hope that I may be forgiven for saying this about my right hon. Friend the Secretary of State. I have had some wonderful times with him—journalists once said of him that he used to stand up and club Labour Home Secretaries over the head and then I would come along and dissect them in public with a legal scalpel—but I just slightly detect that he was looking a bit like a fugitive as the legal scalpel started to move in on him. I do not know where that idea came from, but somebody will have to sort it out. We will have to do it at the Committee stage of the Bill. There are other examples that I could give, but I do not have the time to do so right now, so I shall leave them for the Committee stage in which I intend to participate actively.

Let me move to the Henry VIII clauses. The current situation is ridiculous. I recognise that there will have to be Henry VIII clauses. Of course we cannot carry out this massive revolutionary transformation by primary legislation alone, but we can ensure that we have the necessary safeguards in place. The most obvious one is to have an established parliamentary system of scrutiny to ensure that the different types of statutory instruments that will be needed are correctly farmed out. I have no doubt that my right hon. Friend is right that the vast majority of them will be technical and of very little account, but some will be extremely important and will need to be taken on the Floor of the House. We need to have a system in place to do that.

[Stephen Lloyd (Eastbourne) (LD)]

Will the right hon. and learned Gentleman give way?

[Mr Grieve]

No, I must make progress. There is another issue with Henry VIII clauses. We need to look at the ones we have, as some are much too widely drawn. For example, clause 7 talks about “any deficiency” in an EU measure. It is one thing to say that it is inoperable, but quite another to say that it is deficient. Frankly, I could find arguments to suggest that every single law in this country is deficient. I am afraid that these will have to be changed.

Finally, let me turn to the question of the programme motion. I have no objection to programme motions; they are very important and, in my view, a properly structured programme motion can work well. I am prepared to support the Government on such a motion as long as I have an assurance that, so long as it is not because of filibustering, if we run out of time we will get more. That is vital. With that, I wish the Bill well. I hope that I might be able to improve it and I look forward to being able to support the Government on Third Reading and bring this important constitutional measure to completion.