Legal Advice: Prorogation

Lord Clarke of Nottingham Excerpts

Wednesday 25th September 2019 Commons Chamber

[The Attorney General]

I am extremely grateful to the hon. and learned Lady for her kindness and solicitousness for my welfare. I am particularly attracted by the tempting prospect that she dangles before me, but she will know that I am obliged by the convention to say that I am not permitted to disclose the advice that I may or may not have given to the Government. But I repeat: the matter is under consideration.

[Mr Kenneth Clarke (Rushcliffe) (Ind)]

Does my right hon. and learned Friend agree that if, in the future, we were unfortunate enough to have a Corbynista Labour Government—[Interruption.] That is obviously not thought to be a very likely prospect, but if that misfortune were to occur, if that Government were to decide to suspend the House for a long period because there was a parliamentary majority against their principal policy, and if that Government also decided that constitutional law was not challenged by that, and challenged the right of the courts to overrule it, the Conservative party would be likely to get very excited. Can my right hon. and learned Friend reassure me that this Supreme Court judgment has settled that matter finally, that this kind of action can never be taken by any future Government and that parliamentary sovereignty therefore remains intact?

[The Attorney General]

I certainly can say to my right hon. and learned Friend that it is important when we reflect on judgments that may be seen to go against the short-term interests of any particular Government that we remember that they stand as precedents and principles for the future. I invite all my hon. Friends to reflect on precisely the situation that my right hon. and learned Friend has set out before the House, which is that this would stand for Governments of a colour of which those on my side would not approve and for their actions too. It is important that when we comment on the decisions of judges we remember that those judges are both impartial and independent, and they are entitled to reach the view that they have reached. We are fortunate in this House to have one of the finest judiciaries, I believe, in the world, and it is important to remember that the principles they set apply to both sides, as my right hon. and learned Friend has said.

Section 1 of the European Union (Withdrawal) Act 2019

Lord Clarke of Nottingham Excerpts

Tuesday 9th April 2019 Commons Chamber

[The Solicitor General]

Well, that did not include me.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

My hon. and learned Friend is chopping about with various dates that he would prefer, and he keeps making the obvious point that article 50 can come to an end if and when we have support for a withdrawal agreement, which I have supported all the way through. Would not the best thing be to take some far distant date and give us a proper extension—saying, of course, that it will end forthwith, as soon as any withdrawal agreement is passed? I think that is being proposed in Brussels at the moment, and I cannot think of the slightest sensible reason against it. We cannot keep having these ridiculous cliff-edge debates, moving the date forward by a fortnight or a month every now and again.

[The Solicitor General]

My right hon. and learned Friend is right to talk about the need to avoid cliff edges. To that extent, I can agree that today we are seeking to create a situation whereby we will have the flexibility to leave if ratification takes place. That aspect of his intervention is a very important one to remember. The negotiability of the position is simply that the talks between the parties are ongoing and if there is something fruitful as a result, we can proceed to use the provisions of section 13, with which all of us are notably very familiar. Those stages can then be passed and ratification will be deemed to be complete.

Northern Ireland Backstop

Lord Clarke of Nottingham Excerpts

Tuesday 19th February 2019 Commons Chamber

[The Solicitor General]

What would be reckless and irresponsible is for the Government to provide a running commentary on sensitive negotiations. I would have thought it is as plain as a pikestaff to the hon. Gentleman that that is not the way negotiations should be conducted. Let the Government get on with this work at pace, which is what we are doing.

Rather than criticising from the sidelines, it now behoves the hon. Gentleman and all Opposition Members to work for a constructive solution and end the uncertainty. It is in his hands as much as it is in the hands of the Government.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I understand the dangers of a running commentary, but I have a little difficulty understanding by what process we have reached this point. As far as I can see, the serious negotiations are with the Democratic Unionist party and the European Research Group in my party to see what modifications to the withdrawal agreement we have negotiated they will accept. Ministers then go to Brussels to demand that the European Union accepts the changes and threaten it with leaving without a deal if the changes are not made. As my hon. and learned Friend understands it, are those roughly the tactics being pursued? Why does he think any European politician should accept a situation whereby the permanent open border in Ireland is subject to being terminated by the British Government at any stage they want or having an end date put on it, which seems to me a contradiction? Finally, does he think that the hard-liners in the ERG would accept even that, even if my right hon. and learned Friend the Attorney General produces some ingenious form of words that seems to make it legally binding?

[The Solicitor General]

As usual, my right hon. and learned Friend tempts me down many paths that I dare not take, simply because this is a negotiation between the United Kingdom and the EU. We heard yesterday from my right hon. Friend the Secretary of State for Exiting the European Union, who has been to Brussels and held a productive meeting with Michel Barnier, and my right hon. and learned Friend the Attorney General has been playing an important part in these negotiations. May I reassure my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) that the Government remain determined to get on with the job at pace?

--- Later in debate ---

[The Solicitor General]

I can assure my hon. Friend, who speaks with conviction and passion and serves his constituents admirably, that the Government will be taking a forensic approach. This is a detailed negotiation. The time for platitudes is long gone. We will be adopting his approach in the days ahead.

[Mr Kenneth Clarke]

On a point of order, Mr Speaker.

[Mr Speaker]

If it arises from the urgent question, and in deference to the Father of the House, let us hear it.

[Mr Clarke]

It is a genuine point of order. In the course of the exchanges, two Members of Parliament on the Government side of the House made reference to a civil servant, Sir Oliver Robbins, who they obviously regard as some sort of political enemy, although he is a non-political civil servant. They not only repeated newspaper rumours about what he was supposed to have been overheard saying, but they did so in terms that suggested he had been drinking too much when he was overheard, of which, as far as I am aware, there has never been the slightest indication, even in any of the newspaper reports on which they were relying.

Mr Speaker, people like that have no opportunity whatever of even knowing that these allegations are about to be made, or replying to them. An increasingly unpleasant personal tone is creeping into debate about Europe, mainly from the right-wing members of my party, and it will get quite out of hand if you do not issue a word of reproof and say that that is an abuse of the privileges of the House of Commons, and is not conduct that should be repeated.

[Mr Speaker]

I am grateful to the Father of the House. I have had a discussion about the matter with the Clerk. I will not argue the toss about wording—it is not, strictly speaking, an abuse of the procedures of the House and it is not disorderly; but I think it is extremely undesirable, and it does represent a rank discourtesy, and indeed, as the right hon. and learned Gentleman implied, a coarsening or vulgarisation of the terms of trade in political debate, which we should all strive to avoid. Let me say to the Father of the House that I did not react as quickly as I should have done to the right hon. Member for Rayleigh and Wickford (Mr Francois) when he said what he did. He was absolutely entitled to his point of view, and even to robust questioning of Ministers, of course, but he should not have said what he did about a serving civil servant.

Perhaps I can gently suggest, at the risk of embarrassing the Father of the House, that Members across the House, whatever their political views, would do well to seek to emulate his example. I have known him for 24 years, and throughout the time I have known him, I have always observed one thing: he plays the ball; he does not play the man or the woman. He sticks to the issues—rather as the Chair of the Brexit Select Committee does, on the other side of the House. That is the model that other colleagues should follow. So I thank the right hon. and learned Gentleman for stepping in; the point he has made is valid.

European Union (Withdrawal) Act

Lord Clarke of Nottingham Excerpts

Tuesday 15th January 2019 Commons Chamber

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I shall try to compete with the Opposition spokesman on brevity by being briefer than he was.

This is a chaotic debate in every conceivable way. Future generations will look back and be unable to imagine how we reduced ourselves to this disorderly exchange on a whole range of views, cutting across the parties, at a time when we were taking such a historic decision. That was summed up to me yesterday when I drove through the gates into New Palace Yard and was flanked on either side by lobbyists waving things at me. To my right, I had people waving yellow placards with the words “Leave means leave.” To my left, I had people waving European Union flags and demanding my support. In so far as anyone was shouting any clear message to me, it seemed that both sides were shouting the same thing. Both sides were demanding that I vote against the withdrawal agreement. That summed up the confusion, because both were pursuing objectives, neither of which I agreed with and which took us a million miles away from the national interest, which the House of Commons should surely turn itself to in the end.

We all know where we are coming from, and I am not going to labour my well-known views, because I have been here so long. Yesterday I slightly offended one of my very good friends in the House when I referred to hard-line remainers as well as hard-line Brexiteers. I confess that I am undoubtedly a hard-line remainer. I do not think that there is anyone more hard-line on the subject in the House. When I was a Cabinet Minister, I refused to vote for the referendum being held. The Prime Minister and the Chief Whip chose not to notice my attempts ostentatiously to abstain on the vote. I am the only person on the Government side of the House who voted against invoking article 50. I am a lifelong believer in the European project, and no opinion poll is ever going to change my mind at this stage.

[Sir William Cash (Stone) (Con)]

rose—

[Mr Clarke]

I apologise to my hon. Friend, but I have no time.

I believe that Britain’s role in the world now is as one of the three leading members of the European Union, and one that has particular links with the United States—when it has a normal President—that the others do not. That enables us to defend our interests and put forward our values in a very dangerous world. We have influential membership—we lead on liberal economic policy— of the biggest and most developed free trade area in the world, which is always going to be where our major trading partners are, because in the end geography determines that they matter to us more than anyone else.

I will not go on, but just in case there is any doubt about where I am coming from, let me say that I am being pragmatic, as we all have to be. The Attorney General was quite correct to raise the need for the House to achieve some kind of consensus and to accept some kind of compromise to minimise the damage, which I regard as my duty. The vote on invoking article 50 revealed to me that there was not the slightest chance of persuading the present House of Commons to give up leaving the EU, because it is terrified of denying the result of the EU referendum. To be fair to my friends who are hard-line Brexiteers and always have been, none of them ever had the slightest intention of taking any notice of the referendum, but there is now a kind of religiously binding commitment among the majority in the House that we must leave. So we are leaving.

Why, therefore, am I supporting the withdrawal agreement? It is a natural preliminary to the proper negotiations, which we have not yet started. Frankly, it should have taken about two months to negotiate, because the conclusions we have come to on the rights of citizens, on our legal historical debts and on the Irish border being permanently open were perfectly clear. They are essential preconditions, to which the Attorney General rightly drew our attention, to the legal chaos that would be caused if we just left without the other detailed provisions in that 500-page document.

The withdrawal agreement itself is harmless, and the Irish backstop is not the real reason why a large number of Members are going to vote against it. One would have to be suffering from some sort of paranoia to think that the Irish backstop is some carefully contrived plot to keep the British locked into a European relationship from which they are dying to escape. The Attorney General addressed that matter with great eloquence, which I admired. It is obviously as unattractive to the other EU member states as it is to the United Kingdom to settle down into some semi-permanent relationship on the basis of the Irish backstop.

In my opinion, we do not need to invoke the Irish backstop at all. We can almost certainly avoid it. It seems quite obvious that the transition period should go on for as long as is necessary until a full withdrawal agreement, in all its details on our political relationships, regulatory relationships, trade relationships, security and policing, has been settled. I do not think that will be completed in a couple of years, however. I actually think it will be four or five years, if we make very good progress, before we have completed all that, and I think that is the view of people with more expertise than me who will be saddled with the responsibility of negotiating it if we ever get that far. I have actually been involved in trade agreements, unlike most of the people in this House.

If we extend the transition period as is necessary, we will never need to go into the backstop. Putting an end date on the transition period is pretty futile, because we cannot actually begin to change our relationship until we have agreed in some detail what we are actually changing to. If this House persists in taking us out of the European Union, that is eventually where we have to get to.

[Anna Soubry]

Will my right hon. and learned Friend give way?

[Mr Clarke]

If I give way to my right hon. Friend, who is a good friend, I shall suddenly find that everyone is leaping up, and I will not keep my word if I start giving way.

The outcome that I wish to see is, as it happens, the same as the Government’s declared outcome. Keeping to the narrower matters of trade and investment, we should keep open borders between the United Kingdom and the rest of the European Union and have trade relationships that are as free and frictionless as we have at the moment. I shall listen to people arguing that that is not in the best interests of the United Kingdom and future generations, but that is an impossible case to make. It is self-evident that we should stay in our present free trade agreement. We cannot have free trade with the rest of the world while becoming protectionist towards continental Europe by erecting new barriers. Nobody said to the electorate at the time of the referendum that the purpose of the whole thing was to raise new barriers to two-way trade and investment.

It seems quite obvious, and factually correct in my opinion, that if we wish to keep open borders—the land border, which happens to be in Ireland, and the sea border around the rest of the British Isles—we will have to be in a customs union and in regulatory alignment with the EU, which would greatly resemble what we call the single market. All this stuff about new technology may come one day when every closed border in the world will vanish, but under WTO rules we have to man the border if there are different tariffs and regulatory requirements on either side. That is where we have got to go, and we will have to tighten things up sooner or later.

The Government keep repeating their red lines, some of which were set out at an early stage long before the people drafting the speeches had the first idea about the process they were about to enter into. Most of the red lines now need to be dropped. The standard line is that we cannot be in a customs union because that would prevent us from having trade agreements with the rest of the world, which is true. We cannot have a common customs barrier enforced around the outside of a zone if one member is punching holes through it and letting things in under different arrangements from other countries. For some, that is meant to be the global future—the bright and shining prospect of our being outside the European Union, which nobody proposed in the referendum. As far as I can see, such things stemmed from a brilliant speech made by my right hon. Friend the Member for Uxbridge and South Ruislip (Boris Johnson), who was praised for putting an optimistic tone on it all. He held out this vision of great countries throughout the world throwing open their markets to us in relief when we left the European Union and offering us better terms than we have spent the last few years obtaining when taking a leading role in negotiating together with the European Union.

Of course, the key agreement that is always cited is the trade agreement that we are going to have with Donald Trump’s America, which is a symbol of the prospects that await us, and China apparently comes next. I have tried in both places. I have been involved in trade discussions with those two countries on and off for the best part of 20 years. They are very protectionist countries, and America was protectionist before President Trump. I led for the Government on negotiating the Transatlantic Trade and Investment Partnership. The reason why the EU-US deal had the funny title of TTIP was that we could not call it a free trade agreement, because the Americans said that Congress was so hostile to the idea of free trade that we could not talk about such an agreement, so we had to give it another title.

We got nowhere, even under the Obama Administration, because we wanted to open up public procurement and access to services, including financial services, in the United States, and I can tell you that it was completely hopeless trying to open up their markets. We are told that things are different with President Trump, that the hopes for President Trump are a sign of the new golden future that is before us. However, President Trump has no time for WTO rules. He has been breaking them with some considerable vigour, and he will walk out of the WTO sooner or later. His view of trade deals is that he confronts allied partner countries and says that the United States should be allowed to export more to them and that they should stop exporting so much to the United States. He has enforced that on Canada and Mexico, and he is having a good go at enforcing it on China.

President Trump’s only expressed interest in a trade deal with Britain is that we should throw open our markets to American food, which is produced on an almost industrial scale very competitively and in great quantities. That trade deal would require one thing: the abandonment of European food and animal welfare standards that the British actually played a leading part in getting to their present position in the rest of the EU, and the adoption of standards laid down by Congress—the House of Representatives and the Senate—in response to the food lobby. There is no sovereignty in that. Nobody is going to take any notice of the UK lobbying the American Congress on food standards. It is an illusion.

If we had enforced freedom of movement properly before all this, we would not be in this trouble. All the anti-immigrant element of the leave vote was not really about EU workers working here. We were already permitted to make it a condition that people could only come here for a prearranged job, and we were permitted to say that someone would have to leave if they did not find a new job within three months of losing one. Everybody in this House and outside falls over themselves with praise for the EU workers in the national health service and elsewhere, but it is another illusion.

Given the present bizarre position, my view is that we must get on with the real negotiations, because we have not even started them yet. It is not possible to start to map out the closest possible relationship with the EU if we are going to be forced to leave. We are in no position to move on from this bad debate and then sort everything out by 29 March. It is factually impossible not only to get the legislation through but to sort out an alternative to the withdrawal agreement if it is rejected today.

We should extend article 50, but that involves applying to the EU and it implies getting the EU’s consent, which would be quite difficult for any length of time. I advocate revoking article 50, because it is a means of delay. We should revoke it—no one can stop us revoking it —and then invoke it again when we have some consensus and a majority for something. I will vote against it again, but there is a massive majority in this House in favour of invoking article 50.

[The Attorney General]

Will my right hon. and learned Friend give way?

[Mr Clarke]

I will annoy everyone else by giving way this once.

[The Attorney General]

I am admiring my right hon. and learned Friend’s speech minute by minute, but there is one point on which he is wrong. We cannot revoke article 50 unless we provide satisfactory evidence to the European Union that we are cancelling our departure—not suspending it, not pausing it, but cancelling it.

[Mr Clarke]

I have not been in legal practice for 40 years so, if that is the case, I will examine it and look at what authority my right hon. and learned Friend gives me. Would we be prevented permanently thereafter from ever invoking article 50 again? I would like to examine that proposition. If that is the case, we have to extend article 50, but we cannot carry on having this chaotic debate and, in the next 70 days, coming to conclusions that commit this country to a destiny that will have a huge effect on the next generation or two, because we are heading towards leaving with no deal at all, which would be just as catastrophic as he described.

The vast majority of Members of Parliament are flatly against leaving without a deal. For that reason, pragmatism and common sense require us to vote for this withdrawal agreement to try to get back to some sort of orderly progress.

--- Later in debate ---

[Mr John Baron (Basildon and Billericay) (Con)]

I rise to speak to amendment (f) in my name and that of other right hon. and hon. Members. Briefly, it would give the UK Government the unilateral right to exit the backstop at a time of their choosing. It is very straightforward: the UK could not find itself suspended indefinitely in a backstop. If the amendment is passed, it would allow the UK to choose the time to exit, had we entered the backstop; the UK would not have to seek EU approval to do so.

I speak with some sadness. The negotiations to date have been approached as a problem to be solved, rather than as an opportunity to be seized. I, for one, do not like the transition period, but in any negotiation—in particular after 40 to 45 years of integration—there has to be an element of compromise, and I am willing to accept that. The backstop, however, is the real problem for many on the Conservative Benches.

At the moment, the Government cannot answer this very simple question, which directly addresses the indefinite nature of the backstop: without any legal certainty with regards to our ability to exit the backstop unilaterally, what certainty is there that the EU would not play a long game, dragging out the negotiations? By further extending the transition period, which it could do, we could still be having this discussion in three, four or five years to come. That is not honouring the result of the referendum. We need to leave the EU. We need to be definite about that, and the backstop is not the answer because it is indefinite. We could be there for a very long time—

[Mr Kenneth Clarke]

Will my hon. Friend give way?

[Mr Baron]

I am sorry: others want to come in.

Passing amendment (f) would encourage both parties to negotiate constructively when it comes to the transition period and the trade deal, because if the EU knows that it cannot trap us in the backstop, it is more likely to constructively negotiate a trade deal for the benefit of both parties. The Prime Minister could then go back to the EU, which has a long track record of eleventh-hour deals. The amendment would go a long way to helping to unite our party, which is terribly, terribly important. If the amendment is not passed, unfortunately and reluctantly I will have to vote against the withdrawal agreement.

Withdrawal Agreement: Legal Position

Lord Clarke of Nottingham Excerpts

Monday 3rd December 2018 Commons Chamber

[Mr Speaker]

I call Mr Kenneth Clarke—[Interruption.] Order. It is rather unseemly for people to yell out, “Is that it?” The Attorney General, to be fair, has given a very full response—[Interruption.] Order. Members can make of it what they will, but in any case, everybody should cheer up now, because we are about to hear from the Father of the House.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

Whether that will cheer people up or not, I have no idea.

First, I sincerely congratulate my right hon. and learned Friend the Attorney General on his masterly exposition of the facts and the law, which put paid to quite a lot of the paranoia and conspiracy theories that have been running around all too often in our European debate.

Secondly, does my right hon. and learned Friend accept that it was central to the Good Friday agreement—the Belfast agreement—that both sides committed themselves timelessly to an open border, and that will be all wrapped up if we ever move to the Northern Ireland protocol? It would be quite shameful if the European Union, the Republic of Ireland or the United Kingdom were given the right unilaterally to terminate that arrangement at a time of their political choosing, so this is perfectly sensible. Does he also agree that both the United Kingdom and the European Union will have reasons to hesitate before going into the protocol—they may prefer to extend the transition agreement—and that neither of the parties will have any political motive for staying indefinitely in that protocol?

In his exposition, I think my right hon. and learned Friend has done what he was trying to do: got rid of all these theories about the ECJ still being involved, as it obviously will have to be, in the rights of British citizens after we leave, and enabled the House to get back to the real political debate that we have to have in the next few days.

[The Attorney General]

I am most grateful to my right hon. and learned Friend for his question. The truth of the matter is that the Northern Ireland protocol would represent a solemn commitment to the people of Northern Ireland that this Government will honour and respect the Belfast agreement. I make no bones about it: I would have preferred to have seen a unilateral right of termination in the backstop. I would have preferred to have seen a clause that allowed us to exit if negotiations had broken down irretrievably, but I am prepared to lend my support to this agreement because I do not believe—[Interruption.] I am most grateful for those cheers of applause. I do not believe that we are likely to be entrapped in the backstop permanently. I can give reasons why I say that, but my right hon. and learned Friend has foreshadowed them. So I agree with him: this represents a sensible compromise. It has unattractive and unsatisfactory elements for us, but it is for the House to weigh it up against the potential alternatives and to assess whether it amounts to a calculated risk that this Government and this House should take in these circumstances, weighed up against the realities of the alternatives.

European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

Wednesday 13th June 2018 Commons Chamber

[Keir Starmer]

I agree, and I will develop that argument, because a customs union alone will not solve the conundrum of how to keep to the solemn commitment to having no hard border in Northern Ireland.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I will not repeat what my hon. Friend the Member for South Cambridgeshire (Heidi Allen) and my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) have said, because I was about to make the same point. It was the most significant thing that happened yesterday, but given the circus that surrounded everything and the timetable that stopped us debating it, nobody so far has taken any notice. However, it does bear on today’s debate, because yesterday’s legally binding commitment extends the needs of the Irish border to the whole United Kingdom. We are talking about Dover—and we settled that yesterday—and we are not having a border down the Irish sea. The United Kingdom has therefore got to negotiate an arrangement with the EU as a whole that has no new frontier barriers. Effectively, we are going to reproduce the customs union and the single market, and the Government will be unable to comply with yesterday’s legal obligation unless it does so.

[Keir Starmer]

I am grateful for that intervention. When the phase 1 agreement was reached in December, I thought that commitment was the most significant thing that had happened since the referendum, with regard to indicating what our future relationship with the EU would be. I think that it is clear to everyone who has considered this and visited Northern Ireland to talk it through that the only answer to having no hard border, in the end, is a customs union and high-level single market alignment, and that is why yesterday was so significant. The fact that that was accepted by the Government and turned into domestic law gives it a status that it did not have until yesterday, because previously it was a political agreement at international level. I am not suggesting for one moment that it was not solemnly entered into by the Government, or indeed that they would resile from it as a matter of international negotiation, but it will now become a matter of domestic law. It is probably the most significant thing that happened yesterday.

--- Later in debate ---

[Stephen Gethins]

My constituency is rich in immigrants who make our community richer, and not just financially—we welcome them. The hostile environment created by the Government is an abomination that should shame us all.

From the very start—from before the 2015 general election—this has been nothing but an exercise in Conservative party management, and not a terribly successful one at that, yet we all pay the price. Farmers do not know whether they should plant their crops for next year—indeed, the National Farmers Union of Scotland has called for the UK to remain in the customs union. Young people do not know whether they will have the same opportunities that we had, with uncertainty about programmes such as Erasmus. Researchers do not know the kind of collaboration they will be able to rely on, but we all benefit from such collaboration.

Just this week I opened a conference at the University of St Andrews, where Professor Stephen Gillespie, Dr Wilber Sabiiti and Dr Derek Sloan are at the forefront of the international fight against tuberculosis—the conference was held using EU funding. We know that Brexit will be economically devastating—the Treasury has told us that. The Scottish Government have shown that every single Brexit scenario makes us worse off. The Fraser of Allander Institute has also reflected that Scotland is set to lose £8 billion over the rest of the decade.

Before we get catcalls from Government Members, I should say that FAI director Professor Graeme Roy says that the rest of the UK could be even harder hit. That is not something that we or others want to see. That means less cash for public services, and the situation is made worse by the Government’s other policies on immigration, with 2,500 doctors refused visas in the first five months of this year. It is a hostile environment. That is why the Lord Dubs amendment—it is being debated today—on the rights of unaccompanied minors and child refugees, the most vulnerable in society, is so important.

Scotland voted to remain, and we know that every Brexit scenario is damaging. That is why the Scottish Government proposed the compromise—the least worst option—of staying in the single market and the customs union. Last night, we had 19 minutes to discuss devolution in the context of legislation that will have the biggest impact on the devolution process since its establishment. That smacks of a lack of respect.

The 2017 general election gave all Members an opportunity. When the Prime Minister asked UK voters for their views on Brexit, they returned a hung Parliament. Only the SNP—and the Democratic Unionist party, to be fair—was returned in a majority of the seats in which we stood. But there should be an opportunity to reach out. Some of the SNP’s best policy achievements came during a period of minority Government between 2007 to 2011, when Scottish Government Ministers were required to work constructively with other parties and needed other parties to work constructively with them. No one got everything they wanted in that particular set of circumstances—I know that the hon. Member for Caithness, Sutherland and Easter Ross (Jamie Stone) was in that Parliament—but that is something that we can all learn from. [Interruption.] I hear chuntering from Government Members saying that we lost. Actually, the SNP gained an unprecedented majority having pursued those particular policies.

There has been a particular impact on Ireland—[Interruption.] Government Members would do well to listen to this. The Good Friday agreement has been undermined by Government Members, and right now, we should be listening to Ireland. The best friends anyone can have are honest and we all rely on critical friends. Frankly, right now the UK has no better friend than Ireland. In fact, the UK has benefited from Ireland being a full member state of the EU, as it would if Scotland were a full member state. I have heard so much about how canny the Commission is and how we cannot trust its negotiating position. No one is trying to pull the wool over Brexiteers’ eyes; it is just that they have come up against the brick wall of hard reality, and that is clear two years on.

All this comes at a time when politics in this place, as has been demonstrated today, could not be poorer. Notwithstanding some fine individuals whom I respect on both sides of the House, we have the most ineffective and incompetent Government in living memory, and they are let off the hook only because they are shadowed by the most ineffective Opposition most of us have ever known, and hopefully will ever know. We want Labour Members to be doing better and we rely on them to be doing better, but at just the time when we need an effective Opposition and Government, we have neither. Given the devastating impact that leaving the EU is having on jobs, the economy and those who have made the UK their home, the UK is on the cusp of becoming a failed state that does not represent its constituent parts and, for the first time ever, leaves the following generation worse off than the ones that came before it. One way or another, there is a better way to do this.

[Mr Kenneth Clarke]

Mr Speaker, an English Member may restore some of the calm that has not accompanied the Scottish exchanges—thank you very much for calling me. I will try to be as brief as possible. We have a ridiculous situation thanks to the programme motion—we have about three hours left to cover amendments on a whole variety of different subjects that have all been lumped together. In the interests of time, I will confine myself to discussing the future trading arrangements of this country with Europe and the rest of the world, and the Government amendment seeking to get rid of the reference to “a customs union”. Obviously I will not follow all the Front-Bench spokesmen in being extremely generous in giving way. I apologise in advance, because I do not think I will give way much, if at all, because otherwise a large number of other Members will wind up speaking, as they did yesterday, with three-minute time limits and other absurdities that this House has inflicted on itself by accepting the programme motion.

I come to the issue that we are currently addressing most vigorously, although there are many, many more to come: our future trading and economic arrangements with the rest of Europe and the world. My views are well known, and I set them out in Committee. I wish to see absolutely no new barriers to trade and investment erected between ourselves and the rest of continental Europe. I do not think such barriers are necessary to fulfil Brexit. I certainly do not go along with some of the more extreme advocates, who seem to be positively relishing the idea that we should erect new barriers of all kinds between ourselves and 27 nation states on the continent, while having the most open and exotic free trade approach to the rest of the world, reducing barriers of every kind to other trading nations. In today’s globalised world and rule-based order, free trade is particularly essential to the British, and we have to minimise the damage that might otherwise be caused when we implement Brexit.

Let me deal briefly with the argument that is bound to be raised by some—“the moment you mention this, you are defying the referendum.” Again, I shall not repeat what I said yesterday, but I do not think the referendum remotely addressed the important subjects we are debating today; it was a yes/no question on a very broad-brush issue. I took part in a lot of debates up and down the country, doing one or two against Dan Hannan MEP, whom I know well. He is a difficult man to debate against. In my opinion, he is one of the most articulate and informed of the Brexiteer campaigners. I disagreed with him, but I got the clear impression that Dan Hannan was not against the single market and the customs union—that was not his view at all. None of that came through in the debate.

Unfortunately, the national media reporting of the referendum debate was pretty pathetic; it was all about Turks and how much money was going to go to the health service and so on. All this argument about trading arrangements was brought to a head only after the referendum, when the Prime Minister was induced by her then special adviser, Mr Timothy, to give the unfortunate speech at Lancaster House. Suddenly, new red lines were introduced: we were leaving the single market, leaving the customs union and rejecting the jurisdiction of the European Court of Justice. I will not go further on that, as I made the same point yesterday.

I do not remember any ordinary member of the public asking me anything during the campaign about the customs union and the single market. To this day, when I go to my constituency nobody is quizzing me about the customs union and the single market. Nobody is following these debates, except when there is reference to the fact that if we get this wrong, we could do immense damage to the livelihood and wellbeing of very many people. If we do get it wrong and unintentionally create borders to trade, we will make the prospects for future generations even more difficult. In this debate we have heard great vehemence about the customs union and “the single market” and how appalling they are, but the arguments used against them are very narrow.

The Prime Minister has been absolutely consistent for months. She does not say, “Oh, we’re against the single market”—and not surprisingly, because it was the Thatcher Government who created the whole institution in the first place. Although the Prime Minister is not a Thatcherite entirely, on economic policy she and I both believe in open, free markets. There is nothing undesirable about the single market arrangement, except that it allows the freedom of movement of labour. That is the only objection to it that most Conservative Brexiteers ever raised, unless they are of the hard-line head-banging variety, who go much further than that. That is the only objection that they have.

--- Later in debate ---

[Mr Baron]

Will my right hon. and learned Friend give way?

[Mr Clarke]

No, because I have almost taken longer than I intended already.

Let us address freedom of movement. Personally, I do not have any hang-ups about freedom of movement—people coming to work here, contribute to the economy, provide skills that we do not have or do unskilled work that British people will not do—but it could be tightened up. People should not come here for benefits and so on, or hang around if they have lost their job. I am sure that we could start to negotiate on the basis of tightening that up.

[Mr Baron]

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

[Mr Clarke]

If I start giving way, we will go back to where we were before.

Similarly, on trade deals with the rest of the world, if anybody can devise a method of trading with other countries on our own that is consistent with a sensible customs arrangement and better than the deals that we have now used very successfully for a long time—with our being the leading nation pushing for EU deals with the rest of the world—that is fine, but let us not accidentally drift into a position in which we are making absurd demands of the EU that mean our leaving not only the customs union and single market, but losing all the advantages that particularly the best and most competitive sectors of our economy have by way of their existing access to the European market.

Some people seem to think that we can have an altogether different and better type of trade deal with other parts of the world. Quite irrelevant statistics are misused to make the case, such as that growth is faster in the rest of the world than it is in Europe. It is an underlying truth that growth in emerging and developing markets, which was very poor until we got going with the rules-based order in the 1990s, is faster than that of developed countries such as our own, and it is always going to be faster. There is also the argument that there is more of the outside world than there is of Europe. That is indeed the case, but for the past 20 years in particular, the United Kingdom has been the most influential player in the European Union in insisting on the steady attempt to negotiate trade deals with the world in general, and the numbers keep growing.

On the British Government’s behalf, I was involved on the fringes of the constant efforts to get an EU deal with the US—the so-called Transatlantic Trade and Investment Partnership. It did not fail because there was something wicked about the EU; the fact is that, unfortunately, protectionist influences in America are very strong, and were even under the Obama Administration. One cannot get any response. I have been involved in all these things—I have talked about trading openings with India and Brazil, which are of course where the population is. It is absolutely absurd to think that there are no protectionist pressures in India and Brazil and that it is simply a question of our present Foreign Secretary walking in, with his bonhomie, and saying, “You will of course now throw your markets open to us”.

It is also absurd to argue that somehow this approach will produce deals with less damage to our sovereignty and fewer constraints. I do not understand those arguments. What is the nature of a treaty embodying a trade deal—or any other treaty, come to that? Both sides agree mutually binding obligations. They agree on tariffs, and remove them where they can. But what is far more important in trade with developed countries, such as the US—I personally think that the few tariffs left there could be abolished both ways with no disadvantage—is talking about regulatory alignment.

In the EU, we have achieved regulatory harmonisation. What one wants is mutual recognition. We agree to say, “We will abide by arrangements on regulatory standards, on which we both agree, and we, the British, will not change them in our House of Commons. We will not go back on them, and you won’t go back on them.” If we listen, again, to the more zealous Eurosceptics, they seem to think that the world will throw open its doors when we arrive saying, “We want a trade deal with you—open trade.” “Fine”, say the Australians. So we say, “The rules are that you agree to this, this and this, and you take this, and we take that.” But then we say, “Of course, we may change the rules—we may change the scope occasionally. We do not, of course, undertake to fetter ourselves by any lasting obligation to what we have agreed with you.”

There are no such deals. It is fanciful, as the Secretary of State for International Trade discovered when he went to America. He no doubt believed, as they all did just after the referendum, that the doors were about to be thrown open and that we would get a deal with the Trump Administration by Christmas. He found, as indeed I did in my dealings with America, that things are different. The current President is hopeless. He wants to reduce the amount that we and others export to America, and he wants to use force in what he says are easy-to-win trade wars to get us to open up more of our markets to exports from the United States in sensitive areas. That is what he is about.

What is a constant in America—it is also true in Australia, New Zealand and Brazil, thinking of some of the bigger and easier markets—is that they are always anxious to have access to our market for their farmers. They produce food on an industrial scale to lower standards of animal welfare and food regulation than we have. President Trump will say, “We are going to sell you our beef and our chicken and some of our cereals on a bigger scale.” What will those countries want us to get rid of? They will want us to abandon the European regulations on animal welfare and food standards and take up theirs. It would cost us the European market if we did that, and we would have to have border guards everywhere because nobody would let us export to the rest of Europe or to Ireland, or be a route for, chlorinated chicken and hormone-treated beef. Australia has hormone-treated beef; it is not just the Americans. I will not go on, because I think I have made my point.

People are of course dismissed any time they try to point out the consequences of our ignoring reality in the modern world and what might happen to our economy—to Scotland and the rest of the UK—if we accidentally put all kinds of new barriers in the way of our trade. Unfortunately, the public have been persuaded by the Eurosceptics to ignore the Bank of England, the Treasury, the CBI, chambers of commerce, and people from key sectors of the economy such as the car industry and pharmaceuticals. It is all scaremongering, apparently —so we are told.

Actually, I do not see how anybody can argue that erecting new barriers between ourselves and the biggest, richest international free trade market in the world can do anything other than make us poorer than we were. That is why I do not understand why the Government are resisting the not very strong or compelling Lords amendment 1, on customs union, at all. They are only being asked to report on what efforts they are making to get there, and I think they are going to have to make efforts to get there.

The amendments in lieu are an attempt to devoid substantial amendments of any meaning. I would not vote with the Government on the meaningful vote yesterday, because I could not see that any commitment had been given; nor could I see any argument against what was on the amendment paper. I was very worried, because I thought that some of my close hon. Friends and colleagues were going to be very angry when they discovered that they had been fobbed off with an agreement just to discuss the possibility of changing the provision. They may yet have the last laugh on me—I am getting to be a cynic in my old age—as this morning they appeared to be getting somewhere in getting a more substantial system put in place, but we have yet to see the Brexiteers mount their full counter-attack. I will wait and see.

I will come back to the subject of this particular debate, as you will want me to do, Mr Speaker. What is being offered as an amendment in lieu, to use the jargon, is pathetic and utterly meaningless. We could save a bit of public money by saving the paper involved in putting it in the amendment paper and printing it. That probably explains why the amendments in lieu have been tabled by an extraordinarily wide range of Conservative MPs. As well as the Secretary of State, the list includes my hon. Friend the Member for Stone (Sir William Cash), my right hon. Friend the Member for Loughborough (Nicky Morgan), my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) and so on. I know all these people and I do not believe that they agree on anything that has anything to do with the European Union, so what has induced them all to do this? I quite accept that there is a sense of deep loyalty to our party, which I assure the House I actually feel in every other way myself. I think that this is an excellent Government if it were not for their policy on leaving the European Union, but there we are.

What are we being asked to sign up to? The amendment says that it is “a customs arrangement”. Well, that covers anything. It is a phrase that the Prime Minister, for reasons that I have always understood, has slipped into several times because she cannot get the members of her Cabinet to agree on her using any other form of words. So for the time being she has been obliged to slip into talking about “a customs arrangement”. But that includes absolutely everything, from the kind of arrangements that would suit my hon. Friend the Member for North East Somerset to those that would suit my right hon. Friend the Member for Loughborough, but everything in between as well. It is a bit of a waste of a statement, coming back to say what efforts they have made to reach that extremely amorphous destination. Of course, that takes us back to the root of the whole problem, which is trying to arrive at a border policy.

To end on a more optimistic note, I think that most of us have noticed that a most important stride was made yesterday, as I have said, with an amendment tabled by the Government that was described as the Irish amendment. It is part of dealing with the argument about the Belfast agreement, and actually embodies the Belfast agreement in law. It goes further by reinforcing what the Prime Minister has actually been saying for some time, if we have been listening to her—that we are going to have a customs union, in effect, in Ireland, because there is going to be nothing new and no checks on the border. We are, in effect, going to be in the single market as far as Ireland is concerned, because we are having regulatory alignment. We agreed that. I think that the Cabinet agreed it—although some of them do not seem to have noticed—not too long ago, back at the time of the draft withdrawal agreement, which the Government are now trying to finalise. I actually think that that is where we should go.

The Government are still talking about frictionless trade. Unfortunately, thanks to the rows there have been, the slogan is now “as frictionless as possible” trade, which no doubt cheers up the Foreign Secretary. The truth is that we will have to have genuinely frictionless trade through arrangements on customs and regulatory alignment that preserve the benefits of all this for Ireland. Actually, the one thing that I think every Member of the House agrees on is that we do not want new barriers down the Irish sea. Northern Ireland is part of the Union—I am as Unionist as anybody here—and we are not putting up new barriers between the mainland and Northern Ireland when we leave.

Belhaj and Boudchar: Litigation Update

Lord Clarke of Nottingham Excerpts

Thursday 10th May 2018 Commons Chamber

[The Attorney General]

I thank the hon. Gentleman for his remarks and for the tone of them. He is right to say that one thing we should seek to achieve, not least for Mr Belhaj and Mrs Boudchar, is the ability for them to have closure and to move on with their lives. He is also right to say that the framework in place for the future must be properly robust and ensure that this kind of thing does not happen again. He asked me about consultation with Ministers on questions of this nature. I am sure he will be aware of the consolidated guidance published by the coalition Government in 2010, which of course we keep under review. It indicates clearly that when it comes to the treatment of detainees and information obtained from them, there are clear expectations of the intelligence agencies; where necessary, they should refer matters to Ministers; and when they do so Ministers should be properly informed of the background to the decisions they are being asked to take.

The hon. Gentleman is, of course, also right to say that the framework that surrounds all these activities must be fundamentally based on our values, one of which is the capacity of this Government or any Government to accept where mistakes have been made and apologise for them.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

As chairman of the all-party group on extraordinary rendition, may I unreservedly welcome this statement and the tone of it, and congratulate the Prime Minister and the Attorney General on producing it? My main regret is that it has taken so many years to produce it. These events took place in 2004, and as long ago as 2013 Mr Belhaj offered to settle this case for £3 compensation and an apology—that was rejected. The whole thing has now reached a much better resolution, and my right hon. and learned Friend has expressed all the sentiments we all feel about proper standards in the service. Does he accept that we now need to move quickly to the most important thing, which is to be reassured that nothing of this kind is likely to happen again and that our intelligence services will not get embroiled in such serious breaches of human rights?

The Intelligence and Security Committee is shortly to produce a report that covers these matters. Will my right hon. and learned Friend therefore assure me that it will be followed by a ministerial statement that will set out as clearly as is possible, given the security problems, the facts that the Government are now prepared to disclose as to how this happened and, more importantly, how future rules and the consolidated guidance are to be so revised that we can be reassured that for the foreseeable future it is highly unlikely that the British will ever be involved in such an embarrassing situation?

[The Attorney General]

I am grateful to my right hon. and learned Friend for that, and I share his regret that it has taken this long to resolve the matter. He may know that in recent months—and it has been recent months—the Prime Minister has asked me to look in particular at this case and to lead the mediation process that recently concluded. What needed to be done here was apparent to me very quickly following my involvement in the case: there needed to be a resolution of this matter and an apology. Although, as he knows, this is an immensely complex matter, legally, factually and in many other ways, it is extremely welcome that we have been able to resolve matters as we have.

In so far as reassurance for the future is concerned, my right hon. and learned Friend has heard me say something about, and of course he knows about, the changes that have been made, since the incidents I have described, to the systems that we apply here. He knows from his experience in government—I have certainly found this in mine—that the way in which decisions of this nature are taken is now fundamentally different from the way in which they previously were, and that provides us with some reassurance. He also mentions the ISC report, which we await. I hope he will be reassured to know that, as far as I know, the Committee has been provided with the information that it has asked for in relation to this case—I know the Committee will ask again if there is more that it requires. When it has produced its report, the Government will of course seek to respond in a meaningful way to it.

European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[Joanna Cherry]

That is what I have heard, too. What I would like to hear from the Government today—this is why I tabled this probing amendment—is some indication that they recognise the gravity of the issue. This is not a political football, and it is not about stopping Brexit; it is about addressing issues of legal certainty.

As a courtesy to this House, I would like to hear some indication of how the Government propose to address the issues of legal certainty, particularly so that Members of my party, which is not represented in the other place, can have some input and give our view. Of course Scotland has a separate legal system. Clause 6(2) will apply to the High Court of Justiciary, and we need to be reassured not just on behalf of judges in the UK Supreme Court but on behalf of judges in the Supreme Courts of Scotland. I very much hope amendments 42 and 43 will draw from the Solicitor General some colourable reassurance that the Government are taking these concerns seriously and that they have them in hand, as well as some indication of the route the Government intend to go down in the other place to address these concerns.

Finally, on the charter of fundamental rights, I will wait to see what the official Opposition do, as we each have an amendment down. Given the spirit in which we have worked together on other aspects of this Bill, I am sure we can come to an agreement on that. The Scottish National party will be happy to support new clause 7, which was tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas). Many of our constituents feel strongly about the issue it raises, as do those of other MPs, and we are grateful to her for persevering with it.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

The hon. Member for Nottingham East (Mr Leslie) began his speech by saying that it was going to be very short but he then generously gave way to dozens of interventions from Members from all around the House and spoke for half an hour. He was expressing views with which I largely agreed, but I will try not to follow his precedent. I was not trying to catch your eye at all, Mr Speaker; I was waiting for the Solicitor General to reply to these points, as I was waiting for Ministers to reply to them in Committee, when I made speeches on one or two of them. However, I decided to make a short speech to save myself and the House from the long interventions that I am prone to make and would otherwise make on the speech of my hon. and learned Friend the Solicitor General.

This speech concerns the three points that have dominated throughout, where I am in great sympathy with what many people have said. First, why are the Government singling out the charter of fundamental rights to be the only piece of EU legislation that they wish to repeal? Secondly, on retained EU rights, why are those people who have existing rights of action able to get only this strange concession that for three months they might be able to pursue those rights, otherwise retrospectively they will lose them if their solicitors do not act quickly enough or they do not realise in time that they might have an action? Thirdly, and finally, we have this strange question of how in future a sovereign Parliament will amend EU law if it wishes to do so and why we have this confusion about what is, in effect, primary legislation and will require an Act of Parliament to change it, and what is secondary legislation and will require regulations. I will not repeat the arguments on any of those points at any length, because I addressed some of them in Committee and they have been well put today. But I am astonished that we have got to Report without, as yet, having had an adequate response to any of them.

I was rather doubtful about the charter of fundamental rights when it came before the House originally. I was a supporter of the treaty of Lisbon and I voted against my own party, with the then Government, quite frequently throughout those proceedings, as I thought the treaty was highly desirable. I am glad to say that when we came to power we showed not the slightest sign of wishing to undo any of it. The charter of fundamental rights was the bit I was least keen on, thinking it on the whole unnecessary, as it largely duplicated the European convention on human rights, and thinking that it was not going to make any difference; I did not use The Beano quote, but I could not see that it mattered very much and I went along with it reluctantly. I was wrong, as the charter has led to some extensions of rights in important areas. I cannot see why we should wish to halt that process. We have not yet got the Government’s proposals as to what they are going to do to fill the gap on things such as equalities law, which will emerge if we just repeal this.

The point I wish to make in a short speech is about what kind of answer I want from my hon. and learned Friend. He is genuinely a personal friend of mine. He is an extremely eloquent and valuable member of the Government. Obviously, as all lawyers do from time to time, he follows a brief, but I am sure he makes a considerable contribution to that brief and gives very valuable advice to those who seek to instruct him to temper what they would otherwise wish to do. So this is not at all aimed at him personally. But the Government’s approach throughout these unsatisfactory proceedings so far has been not to debate the main issues; we get raised with us all kinds of technical, drafting or slightly irrelevant reasons why the proposals coming from the Front Benchers on all sides cannot be accepted. So far, as far as I am aware, the Government’s case on the charter of fundamental rights is, “Well, it would not make any difference to repeal it. It hasn’t added anything. This is just unnecessary. We have singled it out, uniquely among all other EU law, simply because our tidiness of mind makes us wish to remove something that is perfectly adequately reflected in other areas.” That is not good enough.

On all three points that I have set out, the Government today, on Report, have the last chance in this House to say why they are repealing the charter, what evil it has done, what danger they think we are being protected from by its repeal and so on. I have yet to hear an example from anybody of a case where the charter of fundamental rights has been invoked in a way that anybody in this House would wish to reverse. We have not been given an example of an area of law that we have been taken into despite the bitter opposition of either the Government or this House. The advances that have been made, in some cases invoking the charter, seem to me perfectly worth while, so I hope the Solicitor General’s speech will specify those areas where the Government see that damage has been to our approach to rights and to law, and what hazards they are going to prevent us from falling into by reversing the charter.

[Hannah Bardell (Livingston) (SNP)]

rose—

[Mr Clarke]

I will give way in a second; before I finish, I will give way if people insist.

Secondly, what on earth is the advantage we gain by putting in a three-month limit? The Government have taken weeks to come back with their alleged response to the points raised on the Floor of the House on acquired legal rights, and it seems we can have a concession for three months. That is utterly ludicrous. Thirdly, what is wrong here? My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) is much more of a gentleman than I, and he is much more likely to adhere to party political loyalties. There is no more stout mainstream Conservative than me, and I would say that I am sticking to the Conservative principles that I have followed throughout my life until 18 months ago, but I do think some of these things, certainly on questions of rights, are not party issues. They usually do not have a whip applied. They are matters of conscience and cut across both sides. Going back to the future powers of this Parliament, which it must have of course, to amend retained EU law as and when the political will of the House wishes to do so, what is wrong with new clause 13 and its specification of what is primary legislation and what is secondary legislation? What alternative are the Government going to come up with, other than just saying, “The Government of the day will decide as each issues arises”? They must have a better alternative than that.

[Catherine West]

The right hon. and learned Gentleman is making an excellent speech. Does he agree that this is the sort of amendment that the other place might just take to heart and bounce back, so it might be more sensible to have that difficult pain now and get it out of the way, and the other House will not have to return it?

[Mr Clarke]

I hope and believe that the other place will make an enormous number of changes to this Bill. The idea that a Bill with all these Henry VIII clauses is going to have an untroubled passage through the House of Lords is an illusion. This House just lets every extension of the Henry VIII clause principle through. The Opposition of the day object like mad but then that party takes office, cites the precedents of its predecessor and defends them as the way of proceeding, and the previous Government then start denouncing them. I hope the House of Lords will throw back some of the bizarre extension of the Henry VIII principle in this Bill and some of the European things.

--- Later in debate ---

[The Solicitor General]

My right hon. and learned Friend and I agree about general principles, which is why the general principles that underpin the recently drafted charter remain and, of course, do apply in respect of retained EU law. His second point about the means by which individuals challenge that is, of course, a matter of ongoing debate. I shall come back to the points raised in not only his amendment, but mine as well.

[Mr Kenneth Clarke]

My hon. and learned Friend kindly said that he would try to answer my question. The question was: what harm has the charter of fundamental rights done and what evil is he trying to avert? It is true that, unexpectedly, new rights have been created under the charter and he is right that those rights have relevance to EU law. But the whole point of the Bill is to retain large amounts of EU law and its principles. What is the point of the change? This is policy in this Bill—it is a policy change. I fear that it is a signal to some sections of my party: the only part of the acquis communautaire that will be abolished mentions the wicked words “fundamental rights”, and that is why it is being removed.

[The Solicitor General]

The position that my right hon. and learned Friend took on the charter back in 2007 is the right one. As I was saying, it is in the interests of maintaining the rule of law that we maintain clarity, consistency and a clear authoritative source for those rights. My genuine concern about the importation of this particular charter into our domestic law is that we will sow confusion. That is not good for the maintenance of the rule of law, for the citizens of our country, for the future development of the law or for the position of this place vis-à-vis that development.

European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

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

[Mr Grieve]

I fully appreciate that my hon. Friend has a great distaste for the way in which this law has been imported into our country during the course of our membership of the EU. However, two wrongs do not make a right. He could profitably look at the prolonged period of time it is going to take to replace all this law—five years, 10 years, 20 years, 30 years? I would be prepared to have a small wager with him that some of this is still going to be around in three or four decades to come.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

My right hon. and learned Friend concedes that two wrongs do not make a right. May I point out to him that the introduction of qualified majority voting was an achievement of the Thatcher Government? We persuaded the European Union to adopt the single market because we did not want small countries to be subjected to little pressure groups holding up very important standards that we needed to achieve in the new market we were creating. Mrs Thatcher sent as her commissioner Arthur Cockfield, who presided over several thousand of those being introduced so that the single market could get under way.

[Mr Grieve]

My right hon. and learned Friend is entirely correct. If I may explain, I was simply attempting—although I sometimes find it quite difficult—to put myself into the position of my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), who had explained his distaste. Having done so, I was trying to explain why he should still be concerned. I could not agree more with my right hon. and learned Friend. I am not troubled by the way in which this law has come into our country. We have kept our sovereignty. We made a choice to do this, and we did so because of an awareness of how, as international relations develop, it was in our national interest. That may represent a philosophical difference, but as I pointed out, there is all sorts of international law out there that binds us that did not originate in this Chamber.

We should be concerned about the fact that these laws matter. I do not know whether they matter to my hon. Friend the Member for Stone or other hon. Members, but if we go out into the street and ask people whether equality law—

--- Later in debate ---

[The Solicitor General]

The hon. Gentleman has been a committed pro-European throughout his career. I enjoyed his YouTube videos during the campaign—[Interruption.] I look forward to starring in one. We must not forget, however, that the important sunset provisions in clause 7 limit the use of such powers to two years after 29 March 2019. Clause 9 is now sunsetted to a very restrictive interpretation with regard to the duration of its powers. I hope that that, together with the important policy statements we have made, and are making again today, will give the hon. Gentleman the comfort he is looking for. [Interruption.] He is chuntering away. With respect, perhaps he could hear me out. I am trying to give him the comfort he rightly seeks for his constituents and to reassure him that his fears are unjustified.

[Mr Kenneth Clarke]

My hon. and learned Friend accepts that the problem is that the Bill includes powers that could be used to make drastic reductions in environmental standards and other things without any proper parliamentary process. There is a widespread consensus among remainers and leavers that we do not want the powers to be used in that way. He sounds as though he is about to reassure us that the policy of the present Government is that although they are taking the powers, they have no intention of using them for such purposes. I have the highest regard for him—he is a personal friend—and I quite accept that a Government led by this Prime Minister is not about to use draconian powers to lower standards, as her instincts are quite the other way. Given that the powers are therefore not needed—we do not need a Bill to give us powers that no one wants to use—why can we not amend the Bill to put it beyond doubt that no such attempt will be made? Heaven forfend that my party should swing to the right at any time in its long and distinguished history, but there are members of the present Government who are not excessively fond of lizards and bats, or workers’ rights. We would all be reassured if he undertook to put in the Bill a reduced level of powers.

--- Later in debate ---

[The Solicitor General]

One reason the hon. Lady has not heard me outline that concern in detail is that clause 4 is the sweeper clause and my hon. Friend the Minister of State, Ministry of Justice, will deal with that in the second part of the debate. I assure her that, by the end of today’s proceedings, her concerns will, I hope, have been addressed during the debate on clause 4.

I want to deal with the amendments, having, I hope, made—

[Mr Kenneth Clarke]

Will my hon. and learned Friend give way?

[Mr Grieve]

Will my hon. and learned Friend give way?

--- Later in debate ---

[The Solicitor General]

No, I would like to press on, if I may. I am mindful of the time, and I want to make sure that we get these points on record.

I want to deal with the points, which I hope hon. Members want to hear, about the Government’s commitment not only to workers’ rights but to consumer protection rights and environmental obligations—all of which have been very much a part of the work that we have done with our European partners during our 43 years of membership of the European Union. That does not change. I want to move on to some of the other amendments—

[Mr Kenneth Clarke]

I thank my hon. and learned Friend for giving way. This is quite an important issue. A moment ago, I thought that he was on the brink of saying that he would try to come back to the House on Report with the Government’s own legislative proposals to give effect to the good intentions that he has assured us the Government entirely share, but at the last moment he hesitated. When he said yes, was he committing the Government to putting in the legislation the best solution in response to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) in particular, so that we could all be assured that the Bill will leave this House in a way that we entirely unanimously accept?

[The Solicitor General]

I am committed to trying to achieve the best solution, whether it is in the Bill or in an amendment to Standing Orders. I will not presume to tie the hands of this place. I hope that my right hon. and learned Friend can take that as a clear assurance that I will do whatever I can to get this right.

The first and most important point to be made about new clause 15, tabled by the hon. Member for Nottingham East (Mr Leslie)—it has, I think, already been made by several other Members—is that we have strong rights and protections here, domestically, which are not contingent on our future membership of the EU. We have a proud record, and in many areas our standards far exceed the minimum standards required by EU law—for instance, entitlement to annual leave and maternity allowances. When we leave the EU, it will be for this Parliament and, indeed, the devolved legislatures to determine the law and the rights that apply here in the United Kingdom.

I must say to the hon. Member for Nottingham East, with respect, that in my view the new clause would impose an onerous and unnecessary duty on the Government. There will be nothing to stop future Governments of whatever hue, or future Parliaments when exercising their sovereignty, from considering any legislation that the EU or the European Economic Area may make. They need not be obliged to do that; it will be a matter that they can take into consideration. A requirement to report to Parliament each and every time the EU amended its rules would be excessively onerous, given the number of reports that might be made and considered.

Moreover, we do not want to give the inappropriate impression that the path followed by our European partners will always be the path that we as a UK Parliament should follow. While I am entirely supportive of many measures that ensure that we work, converge and keep pace with our European partners, there will of course be plenty of opportunities for us to forge our own path. That, after all, is what the vote was all about.

--- Later in debate ---

[Stephen Kinnock]

I would like to speak in favour of new clause 2 and new clause 58, which have been tabled by those on the Labour Front Bench.

There is an idea that we should be giving the Government the benefit of the doubt on these issues. There have, however, been so many statements and acts from those on the Government Benches to undermine employment rights, from the Trade Union Act 2016 to many other measures, that we need to ensure we anchor the rights of our workforce in the Bill.

The Exiting the European Union Committee met Mr Barnier in Brussels last week. One point he made very clearly is that as we move towards a future relationship, the so-called deep and comprehensive free trade agreement will need to be ratified by the Parliaments of the member states, plus a number of regional Parliaments. They will not accept anything that he described as “social dumping”—they will not accept undercutting and they will not accept unfair regulatory practice—so if the Government are serious about getting a deep and comprehensive free trade agreement with the EU they will have to recognise that regulatory equivalence will have to be a critical part of it. This is about not only securing rights in this country, but the economic interests of the country if we are serious about having that future relationship.

[Mr Kenneth Clarke]

I entirely endorse what the hon. Gentleman says about a free trade agreement with the European Union requiring regulatory equivalence. Actually, this is not a uniquely European thing or a malicious Brussels proposal. Modern trade agreements in a globalised economy all depend, more than anything else, on mutual recognition or regulatory convergence in the sectors where free trade is going to be allowed.

[Stephen Kinnock]

The right hon. and learned Gentleman is, as always, absolutely correct. We need to recognise the umbilical cord connecting the regulatory playing fields to the trade agreements because of the nature of unfair competition and unfair practice. None of the EU member states will accept such agreements without that. What was particularly interesting about what Mr Barnier said was that the comprehensive trade discussions will be on the basis of article 218 of the treaty, which requires ratification by 27 member state Parliaments and eight regional Parliaments. The level of scrutiny, therefore, will be even greater under the future relationship than under the transitional relationship, which we know will be a carbon copy of the status quo, including on ECJ jurisdiction. I think the Government have accepted that, although there seems to be an attempt to wriggle out of some aspects. The fact remains, however, that a transition deal will be a carbon copy of the status quo.