European Union (Withdrawal) Bill

Peter Grant Excerpts

3rd reading: House of Commons & Report stage: Second Day: House of Commons
Wednesday 17th January 2018 Commons Chamber

[Matthew Pennycook]

I absolutely agree; and the unpicking of, or wheeling back from, some of the progress we felt had been made in the Florence speech is one of our concerns.

The Bill before us was drafted before the Florence speech, but rather than amend the Bill to reflect the evolution of Government policy outlined by the Prime Minister in that speech, the Government chose instead to fashion a legislative straitjacket for themselves in the form of enshrining “exit day” for all purposes in the Bill as 11 pm on 29 March 2019. Let us be clear: bringing forward amendments to stipulate that exit day for all purposes of the Bill had nothing to do with leaving the EU. The article 50 notification made our departure from the EU on 29 March 2019 a legal certainty, so, for the purposes of the Bill, exit day could be left in the hands of Parliament.

[Peter Grant (Glenrothes) (SNP)]

The hon. Gentleman just used the phrase “legal certainty” in referring to our departure from the EU on 29 March 2019. Does that mean that he has seen legal advice that article 50 cannot be revoked? Is the Labour Front-Bench position that it is impossible, as opposed to politically inexpedient, to consider revoking article 50?

[Matthew Pennycook]

The hon. Gentleman tempts me down an avenue that has nothing to do with the point I am making, which is that it remains unclear why the Government tabled three exit day amendments to their own Bill which have sown further confusion. We do not know why they did that—whether it was driven by Tory party management considerations or some other reason. The effect of those Government amendments would have been to end the jurisdiction of the ECJ on 29 March 2019, thereby preventing agreement on a transitional period on current terms.

The Government clearly soon realised their mistake and to save face enlisted the right hon. Member for West Dorset (Sir Oliver Letwin), who is not in his place, to table amendments to loosen the legislative straitjacket they themselves had created. But his amendments, which the Government have accepted, only provide a limited form of flexibility. Ministers may now amend the definition of exit day in clause 14 for the purposes of the Bill if the date when the treaties cease to apply to the UK is different from 29 March 2019. However, there is good reason to argue that that power might not be sufficient to facilitate transitional arrangements after 29 March 2019 on the same basic terms as now. If it is not—this might end up being the most bizarre aspect of the Bill’s curious parliamentary process—the Government will find themselves in the ludicrous position of having to amend this Bill when they bring forward the withdrawal agreement and implementation Bill later this year.

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[Mr Kenneth Clarke (Rushcliffe) (Con)]

I am glad to see my right hon. Friend the Member for New Forest West (Sir Desmond Swayne) in his place behind me, where I always welcome him. When I arrived, I inquired whether he had had a cup of coffee before today’s long proceedings, and I undertake to try to have no soporific effects on those Members who have survived to the eighth day of this Committee and Report stage.

I do not intend to follow entirely the hon. Member for Greenwich and Woolwich (Matthew Pennycook), although I listened to many of the points he made with considerable sympathy; I am quite sure that clause 7 will require more work when it gets to another place, and I also have considerable sympathy with what he said about the confusion now surrounding exit day and the ability to proceed to what I am sure is the obvious transition arrangement we are going to have to have for quite a long time, which will be on precisely the same terms that we have at the moment, so far as access to the market is concerned.

I will turn my attention, however, to the Bill’s impact on the economy, following from new clause 17, which is in this selection and strikes me as excellent, and several more of the same kind. In our eight days, the House has not had anything like adequate opportunities to consider this absolutely vital policy implication of what we are embarked upon as we seek to leave the EU. I do not share the view that the Bill needs to be treated in this House or the other place as a mere technical or necessary Bill of legal transition; we have the opportunity to put into the Bill some of the essential aspects of our future economic relationship and to allow the House to express a view and put into statute things that we wish, and instruct in line with our constitution, the Government of the day to follow.

There is undoubtedly going to be some economic cost to this country, regardless of the means by which we eventually leave the European Union. If we have a complete break with no deal, the implications could be very serious indeed. I am one of those who think it rather foolish to try to put precise figures on this. The Scottish National party earlier tried to make precise estimates of what would happen because a think-tank had put out a range of consequences, depending on which options were followed. It was rather reminiscent of the arguments put forward by the then Chancellor of the Exchequer when he tried to help the remain side during the referendum campaign. They were really rather fanciful figures.

[Peter Grant]

rose—

[Mr Clarke]

As I have mentioned the SNP, I will give way to the hon. Gentleman.

[Peter Grant]

Clearly, any forecast or projection is going to be approximate, and I do not think that anyone is claiming that the Scottish Government’s figures are precise. But would the right hon. and learned Gentleman prefer to defend a position that was backed up by approximations and forecasts that may or may not be accurate, or would he prefer to be in the Government’s position of defending a position backed up by no impact analysis whatever?

[Mr Clarke]

I shall turn to that in a moment, but I agree with the hon. Gentleman entirely. I was not making a criticism of the think-tank, which has done its best, but we all know from experience that all economic forecasting should be taken with a slight grain of salt. It is utterly beyond the capacity of either the Treasury or the most expert outside groups to predict with absolute confidence what the precise consequences will be.

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[Mr Speaker]

Order. A considerable number of Members are seeking to catch my eye, and colleagues will be conscious that these proceedings must conclude at 4.30 and that it is reasonable to allow the Minister some considerable time to respond to the points made. Therefore, a certain self-denying ordinance is required if I am to enable everybody to contribute. The hon. Member for Glenrothes (Peter Grant) speaks for his party from the Front Bench and, of course, must be afforded a decent opportunity, but I know that he will want to tailor his contribution to take account of the interests of others.

[Peter Grant]

With the consent of the House, I rise to speak to amendment 59 in the name of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) and other right hon. and hon. Members, and to amendments 9 and 56 and new schedule 1.

Before I speak in more detail about amendment 59, may I commend the hon. Member for Nottingham East (Mr Leslie) for the amendments that he submitted? What he has done is to remind us of what a complete sham this entire process has been. Almost 90% to 95% of the way through these eight hours of debate, the Government who had promised, day after day after day, to listen to the debate and to take appropriate effective action still have not corrected some of the glaring deficiencies in their own Bill, the most serious of which, perhaps, is the fact that we still do not have any statutory guarantee that the Northern Ireland peace process, the Belfast agreement and all that that implies, will be protected in law. If the Government cannot be trusted to bring forward amendments to correct such a desperate deficiency in their own legislation, how can they expect this House to trust them with the draconian and unprecedented powers to use ministerial directive to correct deficiencies in domestic legislation after we have left?

Amendment 59 seeks to ensure that the withdrawal agreement can only be implemented when we also have an agreement to remain in the EU single market and customs union. Let us be honest: everybody knows that, on a free vote of this House, there would be a substantial majority in favour of remaining in the single market and the customs union. My plea this evening will be for all of those who know that that is in the best interests of their constituents to set aside the demands of the party Whips and to go through the Lobby in support of this amendment. We can win this vote this evening if all those who know that it deserves to win are able to set aside the demands of the Whips and vote for it. We can take a decision tonight that will keep us away from the cliff edge, not just for two years but for very much longer.

I am very grateful to colleagues from the Liberal Democrats, Plaid Cymru and the Green party who have signed this amendment. Although there have been no signatures from Labour Members, either from the Front Bench or the Back Benches, I appeal to all of them to support this amendment today.

Let me first deal with the question of the constitutional or democratic legitimacy of the amendment. One of the very disturbing aspects of the referendum debate, which has continued all the way through the process since then, has been the degree of hostility and open hatred that has been created against anyone who speaks, or even thinks, against the wisdom of the Government, the newspaper editor, the blogger or whoever. I have a good bad example: just a day or two ago, a group of MPs who had the temerity to go over to Europe to meet Michel Barnier were denounced as traitors—treachery with a smiling face—by one well known bloggist. Apart from the fact that such inflammatory and violent language has no place in any supposedly respectful debate, I want to remind the House of some facts of our membership of the single market—facts that I appreciate will be very uncomfortable to some Members, but that are still utterly incontrovertible.

It is a matter of fact that the people of the United Kingdom have never voted in a referendum about membership of the single market or the customs union. This House had the opportunity when the European Union Referendum Bill was on its way through Parliament. We could have decided to ask questions about the customs union and the single market, but the House and the Government chose not to. Having chosen not to ask the question, none of us—including me—has any right to decide that we know what the answer would have been.

It is a matter of fact that it is possible to be in the single market and the customs union without being a member of the European Union. Hon. Members will have different views as to whether it would be wise, appropriate or in our best interests to do so, and they have every right to debate the benefits of membership of the single market and the customs union. But anyone who insists that it cannot happen is not engaging in debate; they are engaging in fiction. We have had far too much fiction in this debate already—from both sides, it has to be said—as the right hon. and learned Member for Rushcliffe (Mr Clarke) mentioned earlier. The decision to leave the single market was a unilateral political decision taken by the Prime Minister without any prior consultation with the people or with Parliament. It cannot, under any circumstances, be described as an inevitable consequence of the vote to leave the European Union.

Finally, it is a matter of fact that when the Conservative party fought on a manifesto that said it wanted to stay in the single market, it won an overall majority of seats in this place—the only time in the last 25 years that it has managed such an achievement. It is also a fact that the Conservatives lost that overall majority two years later, when they stood on a manifesto saying that they wanted to take us out of the single market. Nobody can claim that that is clear evidence of a popular democratic mandate to stay in the single market, but it certainly blows to smithereens any nonsense that there is any mandate for us to leave.

I am conscious of the need for brevity from me as well as from others, so I will not go into the full and detailed argument for staying in the single market, as that would take us from now to Brexit day, if not beyond. However, the right hon. and learned Member for Rushcliffe referred to the latest analysis produced by the Scottish Government, entitled “Scotland’s Place in Europe: People, Jobs and Investment”. I certainly accept his caveats that we cannot be sure that the forecasts and projections in it are accurate. They are certainly not intended to be precise or definitive.

[Angus Brendan MacNeil]

I have found some media chat saying that the Scottish Government’s analysis of staying in the single market was alarmist, giving the figure of a 2.5% loss in growth. That is actually less than the figure put out by the UK Treasury for the loss of growth of just being in the single market, with no deal and the Canadian-style option far worse still.

[Peter Grant]

I am grateful to my hon. Friend for that intervention, but I should put it on the record that I do not use Her Majesty’s Treasury figures as the touchstone for reliability or honesty; that is just a personal gripe of mine.

“Scotland’s Place in Europe: People, Jobs and Investment” is available in summary form and in all its 58-page glory. As a bonus, the back page contains the full text of the United Kingdom’s impact assessment of leaving the European Union. The one that I have is actually the Chinese version for those who understand Chinese.

Among the likely—perhaps very likely—consequences, the Fraser of Allander Institute has forecast that GDP in Scotland could fall by £8 billion over a 10-year period; that the real value of wages in the pockets of the people of Scotland could fall by 7%, including those who cannot afford to live on the wages they have just now, never mind on 7% less; and that 80,000 jobs in Scotland could be at risk. The updated document published this week indicates that the cost of leaving without a deal would be of the order of £2,300 for every citizen in Scotland. Our economic output could fall by 8.5%. That has to be the recession to end all recessions.

Exports from Scotland to the European Union currently run at £12.3 billion a year. If we add other exports that we can only carry out because we have free trade agreements as part of our EU membership, that figure increases to a fraction under £16 billion. Some 56% of Scotland’s current international exports are either to the European Union or to countries with which we already have a free trade agreement, and that could increase to somewhere close to 90% by the time we actually leave the single market and the customs union. How much of that is absolutely, unconditionally guaranteed still to be available after we leave? Right now, the answer is nil or very close to nil. That is the economic cost that we could well be subjected to if we leave the single market and the customs union.

I have not even mentioned the horrific social cost. We saw another heart-rending story today of a lady from Spain who has given 15 years’ service to the NHS, but who has given up and gone back to Spain. Somebody actually queried, “Why is that newsworthy?” Well, given the current recruitment crisis in the NHS, if even just one more well-trained professional leaves, I think it is a bit more newsworthy than somebody leaving a jungle because 250,000 people phoned Channel 4 and asked for them to be thrown out.

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[Peter Grant]

For the avoidance of doubt, I will repeat what I have said in this place before: I think we have to accept the views of the people of England and Wales who have expressed a wish to leave the European Union. Unless the people of those nations give a contrary view at some future point, that view has to be respected.

Some 62% of my people voted to stay in the EU. I want to hear just a single word from this Government that indicates they are prepared to change anything in their chaotic Brexit plan to recognise the sovereign will of the people of Scotland and, indeed, the majority of people in Northern Ireland who also voted to remain. Half the member states of this Union voted to remain in the EU, and there has been no recognition whatever of that fact from the UK Government so far. They have even shown their contempt: having promised to table amendments to correct yet another deficiency in the Bill on the impact on the devolved nations, they then changed their minds and are going to leave it to the other place, where nobody is elected or has any democratic mandate to do anything.

The Government’s woeful handling of Brexit from day one demonstrates that they are so incompetent that they do not even trust themselves to know what is a state secret and what is very common knowledge. It would be wrong for this House to hand over to a competent, cohesive Government the draconian powers contained in the Bill. It would be criminally negligent to hand them over to a Government so disorganised that they could not even appoint their own party chairman without announcing the appointment of the wrong person.

While the SNP’s main purpose has been to scrutinise and seek to improve the proposal from the Government, it has to be said—it hurts me greatly to do so—that the performance of Her Majesty’s official Opposition to date has left a great deal to be desired. We are seeing signs of improvement, which I warmly welcome, on membership of the single market and the customs union. The right hon. and learned Member for Holborn and St Pancras (Keir Starmer) has very helpfully tweeted recently reminders of the six red lines that his party had set out last year. The hon. Member for Greenwich and Woolwich (Matthew Pennycook) referred to them earlier.

The second of those red lines is whether the deal delivers the “exact same benefits” as we currently have as members of the single market and customs union. The only way that that red line can be satisfied is if we remain in the single market and the customs union. I hope that in the intervening period since he sent that tweet, the right hon. and learned Gentleman and his colleagues have managed to persuade the Leader of the Opposition that it is time to get down off the fence and to stop doing the Tories’ work for them and time for every Labour MP in this House to go through the Lobby to vote for this amendment to keep our place in the single market.

[Angus Brendan MacNeil]

My hon. Friend talks about the principal Opposition party—by number, that is. Is he aware that in the past year, for five months they supported the single market, for five months they were against the single market, for two months they were uncertain, and sadly there were only two months—July and August—where they had a consistent policy without alternating every other month?

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[Peter Grant]

As I said, I have been disappointed in the performance of the official Opposition up until now. I think we are seeing some signs of cohesion, and quite a number of speakers have been very firm in favouring the single market, as indeed we have heard across the House.

I do not want to point out mistakes that have been made in the past or score political points. There is a time and a place for that. The situation that we will face within the next couple of hours is so important and could have such devastating consequences for all our constituents that how about, just for a couple of hours, we forget the mistakes that each other has made and look at the catastrophic mistake that we may be about to make if we allow the Bill to go through without amendment 59 or something similar being passed? This may be the last chance we have to keep ourselves away from the cliff edge. I say to all those in this House, regardless of their party allegiance, who know that the single market and the customs union is where we have to be, please come through the Lobby with us tonight to vote to make sure that that happens.

[Sir William Cash]

The European Scrutiny Committee, of which I have the honour to be Chairman, has been holding inquiries into the fundamental constitutional implications of the Bill, including clause 5. As is now shown on its website, I have had correspondence with the Prime Minister on its behalf since December. The provisions I refer to would empower the courts, for the first time in our Westminster-based legislative history, to disapply Acts of Parliament. This is no theoretical matter. Indeed, we are advised that such disapplication is likely to apply to a whole range of enactments, including those relating to equality, terrorism, data protection and many other matters.

I raised this massive constitutional issue, as I regard it, in Committee on 14 and 21 November, including by reference to the authoritative statements made by the late Lord Chief Justice Bingham in chapter 12 of his book on the rule of law and the sovereignty of Parliament. Let us bear in mind that he is one of the most authoritative judges in recent generations. He says:

“We live in a society dedicated to the rule of law; 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;”—

I repeat, “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”—

I repeat, “cannot fail”—

“to give effect to such legislation if it is clearly and unambiguously expressed.”

In that book, he publicly criticised the attitude of Baroness Hale, who is now President of the Supreme Court, and Lord Hope of Craighead for suggesting that the courts have constitutional authority as against an Act of Parliament.

Lord Bingham also specifically approved the analysis of what he described as the “magisterial” authority of Professor Goldsworthy, whom he quoted as follows:

“the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it… What is at stake is the location of ultimate decision-making authority… If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe on unwritten rights, they would be claiming that ultimate authority for themselves.”

He went on to state that they—the judges—would then be transferring the rights of Parliament to themselves as judges. He says:

“It would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum.”

That is the basic principle.

Members of this House and the House of Lords, including former Law Lords and members of the Supreme Court, are themselves deeply concerned about—