European Union (Withdrawal) Bill

John Redwood Excerpts

Committee: 2nd sitting: House of Commons
Wednesday 15th November 2017 Commons Chamber

[Peter Grant]

Yes, it did. A 600-page White Paper was also produced a year or so before the referendum, which allowed everyone taking part to be a lot better informed than even the same Scots voters were about the EU referendum.

It is also worth reminding ourselves that after what has been described as a disastrous and divisive referendum, the first thing that happened in Scotland was that campaigners from all sides got together in local churches, held services of reconciliation and committed ourselves to working together to make the result work, even if it was not the result that we wanted. In the immediate aftermath of the EU referendum, there was a massive increase in crimes of racial hatred against citizens in this country and elsewhere. That was not the fault of those who voted to leave, but a consequence of how the referendum had been set out and how, for too many people, the campaign was conducted.

[John Redwood (Wokingham) (Con)]

I do not share the hon. Gentleman’s view that we leave voters did not know what we were doing. I found that people were very intelligently engaged and understood it. Why does he think the remain campaign and the EU institutions were unable to get people up to the level that he thought they ought to be?

[Peter Grant]

Possibly because some people believed what was written on the side of a bus about £350 million coming to the NHS. I have heard the claims that that did not make a difference, but if that is the case why did the leave campaign pay for it and why was it so keen to promote it?

The referendum has been held, and I have to accept that two parts of the United Kingdom have voted to leave the European Union. I do not have any right to stand in their way, but I say again that this Parliament will not be allowed to ignore the fact that two parts of the United Kingdom voted to stay. When 62% of the people in my country have said, “We want to remain in the European Union,” it is our constitutional and democratic responsibility to make sure that we honour that instruction in the best way possible. One way to do that, if it is impossible to avoid Scotland being torn out of the European Union against our will, is to retain as much as possible of the benefits that our people get from EU membership, and that is what I want to address by speaking to our new clause 45, which will be decided at a later date, and Plaid Cymru’s amendment 217.

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[The Solicitor General]

I always listen to what the hon. Gentleman says with a great deal of interest, but I say in the context of the Bill—although mindful of the constraints of Committee debate—that the thrust of these amendments will not achieve what their movers seek, which is to keep this country in the EEA. That is because all the amendments are based on a mistaken understanding of the UK’s relationship with the EEA. The UK is a party to the EEA agreement in its capacity as an EU member state, so once we leave the EU, the EEA arrangement will no longer be relevant. It does not have a practical effect at international level, and domestic legislation cannot change that.

[John Redwood]

Will the Minister confirm that one of the few things remain and leave agreed about in the campaign is that we would be leaving the customs union and the single market, and we would not be doing a Norway? [Interruption.] Both sides said that, and the British public understood it.

[The Solicitor General]

My right hon. Friend and I were on opposite sides of that debate—indeed, we have been on opposite sides of the debate on Europe for the 20 years and more that I have known him—but I never said in the many arguments I made up and down the country that this was a have your cake and eat it withdrawal: if we voted to leave, it would mean we left the institutions of the EU, which included the customs union and the single market. That is why I campaigned against it, but I accept, as every democrat I know does, the result of the referendum.

I shall now move on, as swiftly as I can, to deal with the effects of these amendments.

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[Robert Neill]

It is a pleasure to serve under your chairmanship, Mr Hoyle.

This is another important debate on some key issues related to retained EU law. With no disrespect to my constituency next-door neighbour, the hon. Member for Lewisham East (Heidi Alexander), who made some powerful comments, I will concentrate specifically on those matters of retained law. As one might say in court sometimes, I adopt the arguments of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). I was about to say that I had nothing further to add, but I will not go quite as far as that. None the less, I do entirely agree with his approach to this part of the Bill and to what we should seek to achieve in relation to retained law.

May I add a couple of other broader observations? I very much welcome the spirit of the remarks made by the Solicitor General and the other Ministers currently on the Treasury Bench. I am grateful for their constructive approach. It is a reminder that Conservative Members have far more in common than that which ever might cause us to disagree about matters on this Bill. It is also a timely reminder that our commitment to protecting social standards and protections is undiminished.

As has been rightly observed, the Conservative party has historically always been a party of social protection and social reform, from the great Christian philanthropists such as Shaftesbury through to Peel—arguably one of the greatest of all Conservative Prime Ministers—and Disraeli and up to the present day. I include a short plug for a previous Member of Parliament for a good part of the Bromley and Chislehurst constituency, the late Lord Stockton, who was, of course, the Member of Parliament for Bromley. Many of us are proud to be in that one nation progressive tradition and want to ensure that we take that forward into the future.

I now turn to amendment 356, which is in my name and is supported by my hon. Friend the Member for Wimbledon. I am also grateful to the hon. Member for Ilford North (Wes Streeting) for adding his name to it. The amendment concerns the UK’s ability to maintain regulatory alignment in the immediate period after the UK leaves the EU, where there is EU-derived legislation that is not fully in effect on exit day. The Solicitor General was kind enough to refer to that topic when I intervened on him. I accept his intentions, but I would like to develop my view on these issues a little further.

As we already know, clause 3 will impose a strict cut-off on the law that is to be retained in that it must not only be on the books—so to speak—but must also be fully applicable and effective immediately before exit day. So far, so good; it is obviously right that Parliament should not automatically apply EU laws introduced after Brexit. It should decide whether we want to apply them, as a matter of our own sovereign judgment. There will be cases, however, where legislation is sufficiently far down the line as we leave the EU that a more flexible approach is justified. It is that limited, but important, area of cases that I will deal with.

There may be legislation that we have no problem with as a matter of policy and that businesses or other affected parties would wish to have—perhaps we were involved in its preparation when we were still a member of the EU. The European Scrutiny Committee and other parts of the House may even have had the opportunity to peruse the documents, and business and other affected parties might already be making preparations to implement and comply with that legislation. How do we deal with that? At the moment, it looks as though we would need primary legislation in those cases. That would be cumbersome for all the reasons that the Solicitor General recognised in his exchanges with the right hon. Member for Birkenhead (Frank Field).

[John Redwood]

I do not see the problem with that. If the piece of legislation is as benign and generally agreed as my hon. Friend says, it will go through the House quickly. If it is not actually agreed and there are lots of issues to tease out, should not we put it through a proper democratic process?

[Robert Neill]

I rather think that what I am proposing in my amendment is the use of the affirmative procedure. I never heard my right hon. Friend say that that was not part of the proper democratic process when he was a Minister and used it many years ago; nor have I heard him say that on other occasions when it has been used. It is a question of what is proportionate. I entirely accept that there has to be scrutiny and a democratic process. But, for the very reasons accepted in the discussion between the Solicitor General and the right hon. Member for Birkenhead—the volume of matters that we would have to deal with, even with the sensible triage arrangements that we have to put in place—I am not sure that we need to go down the time-consuming route of full legislation going through both Houses. I am trying to propose a compromise that would get us through a limited number of quite technical cases.

I will use some examples predominantly from the financial sphere, but the amendment would also apply should we need to maintain regulatory equivalency in things such as data protection, which is important for criminal justice and legal justice co-operation. There may be no such cases when we leave, but they are always possible. That is what we need to deal with, and the principle holds generally.

We may also need to deal with the difficulties that might arise in the context of EU legislation that is only partly implemented on exit day, or legislation that is enforced on exit day but whose effective operation depends on secondary measures that will be passed after exit day, which is not unknown even in our own domestic arrangements. In that situation, it would seem sensible to have the option to domesticate that EU legislation as it comes into force in the EU, so that it is enforced with us at the same time. We could do that through a vote on an affirmative resolution statutory instrument, rather than by having to pass new primary legislation each time. That is a practicality matter, and I suggest it is important.

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If that is what my hon. and learned Friend was saying, I have to say that I think it is a good way to resolve a series of issues, most of which arise in relation to clauses 3 and 4, but which will also arise in relation to other—

[John Redwood]

Clauses 2 and 3.

[Sir Oliver Letwin]

Sorry, clauses 2 and 3. I do apologise. My right hon. Friend accurately corrects me, and I hope that Hansard notes that correction.

If that is therefore what my hon. and learned Friend said, I have nothing further to add to it. However, I want to point up one connection with the useful discussion we had yesterday about clause 6. The more I have thought about this over the past few weeks, the clearer it has become to me that the ultimate resolution to the problem of the unrestrained abilities of the Supreme Court under clause 6(4)(a) is to make it clearer in the Bill that the method by which any change in the snapshot legislation that my hon. Friend the Minister of State, Ministry of Justice, was talking about should be made not by the Supreme Court, but by Parliament. The point is that, so far as there is fundamental change, and in particular so far as there is fundamental change in the interpretation of the plain words of directives, regulations and treaties, it should be made by primary legislation.

That puts primary legislation in the right place, and hence puts the Supreme Court in the right place, because the Supreme Court is there to interpret the common law, which this is not, and to interpret statute, which this could and should be, and it can certainly also interpret European law using European principles except to the extent that, through statute, this Parliament has changed those things.

That would be a perfectly recognisable pattern. As I mentioned yesterday, it is not my ideal pattern, as I would like to unwind in the Bill a good deal of the expansive interpretations of the European Court of Justice that have gone before exit day, but I recognise that the Government might not want to do that. It does not worry me if they do not, because this Parliament, post-Brexit, will have the ability to do it, which is, from my point of view, even speaking as someone who on balance was a remainer, the big advantage of exit. We will be able to make those decisions as a Parliament through the proper process of primary legislation.

By coming forward with the package that I think my hon. and learned Friend the Solicitor General offered the Committee a little while ago in this debate, he will also point the way to at least a great part of the solution to the problems of clause 6. While we are at it, just as a bonus, we have not yet debated clause 5—assuming I have my numbers right—but we will do so anon. When we do, we will hit exactly the same set of issues in a slightly modified form. While we are at it, we will hit this again in clause 7, in another way. The same package that the Solicitor General has suggested will handle all the problems arising from clauses 5 and 7, and point the way to handling the problems with clause 6, once we have got rid of the clause 6(4)(a) error.

We have a pattern here that can make the Bill work in its own terms. It can provide the flexibility that the Government need in order to correct deficiencies, to transpose or adjust things when references are technical or incorrect, to bring to the House important matters that need adjustment but are not fundamental, and to give this Parliament the power it needs to change the law fundamentally and to make that something that Parliament does, rather than the Supreme Court. If we can get to that point, we will have a Bill that is perfectly good in its own terms and that will serve the purposes that the Government intend for it, and I shall rest happy in the knowledge that I have in a small way been able to contribute to a series of debates that will have provided legislation of which we can be proud.

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[John Redwood]

The good news coming out of this debate is that everyone in the House agrees with clauses 2 and 3, on which the clause stand part decision will be made shortly. We are all in favour of them because they are pretty straightforward. Clause 2 says that all the European law that came to the United Kingdom by way of directive is now fully incorporated into statute law and statutory instruments in the United Kingdom, and that that will continue. All that law that comes to us directly as a regulation or a Court judgment will, up to the date of exit, be transferred and incorporated into good UK law by virtue of the legislation before us, and particularly by virtue of clause 3.

It is good news that we all agree with the main item on the Order Paper for this afternoon, so why are we having a long debate? My right hon. Friend the Member for West Dorset (Sir Oliver Letwin) and my hon. and learned Friend the Solicitor General got to the heart of the debate during their interesting exchanges. I pay tribute to my right hon. Friend the Member for West Dorset and agree with a lot of what he said.

The issue revolves around what scrutiny and interest Parliament should take when the transfer of European law that currently directly affects UK law requires some changes. Most of us think there are going to be a lot of changes and that most of them are going to be entirely technical or minor. They will adjust the EU to having one fewer country in it, recognising that we are no longer a member, or adjust the appeal body to a natural appeal body that is already well established by statute in this House, which is a UK body, not a European body. It is the right of the House and of Parliament to decide how much scrutiny any one of those things needs and to give it the proper attention required to check that the Executive are doing a good job.

We all want to ensure continuity of the law. We recognise how many changes and proposals are involved, so we need a way of sifting so that Parliament can concentrate on the ones that could be genuinely contentious or are more material than the others, thereby ensuring that Parliament does not waste too much time. Parliament must decide how much it trusts Ministers to do the sift for it, and I look forward to hearing further thoughts from my colleagues on the Front Bench on exactly how that process is going to work. Personally, I trust the Ministers. From my point of view, the changes are all going to be technical and I do not believe that there is going to be any attempt to change the law. Were there any such attempt, Parliament would be well up to the challenge and there would be an almighty row pretty quickly.

[Peter Grant]

There is a need for Parliament to be able to trust the Government, but does the right hon. Gentleman accept that the Government have indicated through their actions so far that they are not prepared to trust any Parliament in which they do not have an absolute majority? Were the Government prepared to trust Parliament to a greater degree, we would not be having to go through some of the constitutional hoops that are before us.

[John Redwood]

I think Parliament is doing a good job of explaining to Ministers exactly what Parliament wants, and I think it is going to carry on doing that. I have every confidence in Parliament. I look forward to hearing what more can be said from the Front Bench in due course. I think it is all going to be technical and so can be done expeditiously, but clearly Parliament needs to be satisfied. I am completely satisfied that in the areas for which the official Opposition would like there to be some kind of reserve or special status, there is absolutely no intent to amend, change or repeal on either side of the House.

I have heard strong assurances from all parties that there is absolutely no wish to water down employment protections or environmental protections, and I see absolutely no evidence that anyone would try to do that. I am quite sure that, were they to try, they would soon discover that there was an overwhelming majority in the Commons, on the Government and Opposition Benches, of very many people who would say, “You cannot do that,” and we would have every intention of voting it down.

Those laws already in place came via directives and are very much at the heart of what they are trying to protect. They are trying to protect something that Parliament has already put through as UK legislation. No manifestos or other party statements have threatened them, which implies that those things are at risk. It is also important to remember that when many EU directives were implemented—whether by Conservative, coalition or Labour Governments—that was often done in a way that went beyond the minimum standards that the directive required. Where it was possible to go beyond those standards, quite often successive Governments decided to do just that.

[Margaret Greenwood]

A recent TUC study found that many low-paid workers can be disciplined for taking time off for childcare. Does the right hon. Gentleman agree that the right under the parental leave directive to take time off work to take a sick child to the doctor or arrange care for an elderly relative is an important protection for British workers?

[John Redwood]

I am sure that it is an important protection for workers. I do not think that anybody is threatening the protections that are already incorporated into our law codes. We will have many productive debates in future about how we can raise those standards and where we should raise those standards, as we have done in the past.

The House should remember that much of this is already in British law and goes beyond the EU minimum standards; it would be very perverse to think that Parliament would then want to turn around and start taking away those standards when it had made this very conscious effort to go beyond the EU minimum standards. It also reminds us that this House has been quite capable of imposing good standards over and above the European ones and that we are not entirely dependent on the European Union to do that.

I would like to pursue the point of my right hon. Friend the Member for West Dorset by pointing out that there are consequentials from taking the approach that the Solicitor General said that the Government are considering on clause 6(4)(a). Again, I echo what has been said, which is that it is very important that clarity is given to our Supreme Court. Like my right hon. Friend, I want the ultimate arbiter of these things to be Parliament. That is what taking back control is all about. If the Supreme Court feels that it needs more parliamentary guidance, then that is exactly what we must supply either through this or subsequent legislation.

We now come to the important set of issues that various Members have raised about what should be done by primary and secondary legislation. I suggest that, at the moment, we stick to our general rules for non-EU proposals. We know that important matters deserve primary legislation and that ancillary matters, usually arising out of primary legislation, can be done by statutory instruments, usually identified in the primary legislation itself. There needs to be primary legislation cover for the use of the SI principle. Again, Parliament has a way of deciding which ones are a bit more important and so need an affirmative resolution procedure and debate, and which ones are done by the negative resolution procedure. Where the Opposition want to call in one for negative resolution, they do get a debate and a vote, because that is part of the system that we should apply.

On the proposal of my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), I say that we should not be asymmetric in our democracy. He suggested that major pieces of legislation coming from the EU that are in passage but will not be completed by the time we leave the EU should go through under some fast-track SI procedure. I think that those pieces of legislation should face exactly the same procedure that anything else faces in this House. If they are technical or relate to some major piece of legislation that has already gone through, then of course they can go through by statutory instrument if we wish to replicate the European law. If they are substantial and new, they will clearly need to go through the primary legislative process, because we have been arguing that we need more scrutiny and more debate about this important piece of legislation, which makes everything possible.

I see clauses 2 and 3, along with clause 1, as a platform. They are very much a piece of process legislation—the legislation that takes back control. In itself, it does not prevent this Parliament in future doing its job a lot better than it was able to do when quite a lot of our laws and regulations came from Court decisions over which we had no control, from regulations on which we might even have lost the vote, or in circumstances where we were not very happy about the compromise that we had to strike to avoid something worse.

This is a great time for Parliament. I hope that all Members will see that it enables them to follow their agendas and campaigns with more opportunity to get results if they are good at campaigning and at building support in Parliament. That is exactly what clauses 2 and 3 allow us to do. The legislation will allow us to go on to get rid of VAT on items or to have a fishing policy that we think works better for the United Kingdom, while, of course, protecting the many excellent protections in employment law and other fields that have been rightly identified by the Opposition. I recommend these two clauses, which I am sure will go through, and I look forward to hearing more comments from Ministers in due course about how Parliament can satisfy itself on any changes needed to make all those laws continue to work.

[Chuka Umunna]

I will speak about the new clauses tabled by Opposition Front Benchers, particularly those on employment law, and about the new clauses in the name of my hon. Friend the Member for Lewisham East (Heidi Alexander).

First, I notice that the right hon. Members for Broxtowe (Anna Soubry) and for Loughborough (Nicky Morgan), the right hon. and learned Members for Beaconsfield (Mr Grieve) and for Rushcliffe (Mr Clarke), and others are here. They have been accused of not doing right by the people simply because they have been seeking to do their job in Committee. They have been accused in different quarters of being mutineers and trying to sabotage a process, when all they have sought is to do right by this country, this House and—most importantly of all—their constituents.

We do not live in a police state. This is a not a dictatorship where the freedom of speech of individuals, both outside and in Parliament, is curtailed. The House needs to send a strong message to those outside that this democracy will not tolerate Members of Parliament being threatened in the way that was outlined by the right hon. Member for Broxtowe in her point of order earlier, because that is not in keeping with British values and how we do things in this country. There are Members who whip this up, suggesting that we are somehow running against the people when we try to do our job on this Bill. Those Members are grossly irresponsible and should think about what they are doing more carefully in the future, because we have seen the results in the national newspapers today.