European Union (Withdrawal) Bill

Debate between Robert Neill and Stephen Hammond

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

[Robert Neill]

I must confess that I do not see what some people’s difficulty is with the jurisdiction of the ECJ for a short period. At the end of the day, as everybody concedes, there has to be an arbitral mechanism. I rather agree that it will be difficult to invent one in time, and there may be alternatives, but, as the Justice Committee’s report in the last Parliament pointed out, the involvement of the ECJ in these areas is often extremely limited in terms of the overall amount of our jurisprudence in the courts. It would be foolish to rule out accepting it for a limited period to see us through transition.

Let me move on to the specific points here. We do need to pick up on certain areas. We have to have greater clarity on the interpretation of retained EU law. With every respect to Ministers, I do not think that the Bill will achieve that in its current form, although I think that it can, with further work.

[Stephen Hammond (Wimbledon) (Con)]

Like my hon. Friend, I am keen to see that one of our major industries is preserved. Is not the overwhelming merit of his amendments 357 and 358 that they would preserve the Government’s ability to modify the regulations but give certainty on day one because they would deliver a functioning set of rules that could be on the statute book and would therefore take into account some of the cases he mentioned earlier? The key thing for the financial services industry is to have that certainty on day one.

[Robert Neill]

That is absolutely right, and it is critical. With respect to the Minister of State, that is why I do not think the financial services sector will take much comfort from his rather high-level dismissal of these proposals earlier.

Let me just say what these two amendments, in my name and that of my hon. Friend the Member for Wimbledon (Stephen Hammond), seek to do. They seek to give a general interpretive tool to assist the transposition process. We all accept that that has to happen in that domestication into the statute book. They would interfere with the powers to make regulations conferred by clause 7, but they would reduce the need for regulations. I should have thought that it was preferable not to have to operate by regulation if we could avoid it. If we have a known and established interpretive code, that will save the need to make lots of regulations under clause 7. However, it would also, as the Minister rightly observed, provide a backstop, and that would deal with gaps that are identified but that are not picked up in the transposition process. That is what subsections (A1) and (A2) of amendment 357 would achieve.

These changes draw on rules of interpretation that, as I indicated in my intervention earlier, were proposed by the International Regulatory Strategy Group. That body is co-sponsored by the City of London corporation and TheCityUK, and I am indebted to the Remembrancer’s Office of the City of London corporation for the drafting of these amendments—it takes the credit for the ingenuity.

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[Stephen Hammond]

Is not the overwhelming advantage of this rule not that it would put any legal constraints on an authority but that it would allow flexibility to co-operate, making it more likely that we would achieve an equivalent regulatory solution more quickly?

[Robert Neill]

That is entirely right. That rule would preserve the flexibility to co-operate with European partners and to trade into the European markets—regulatory equivalence will be critical to achieving that—and it would do so without the risk of facing any inappropriate legal constraints on the UK’s own operations once we have left.

I am not suggesting that the answer to everything is in this amendment. It is tabled in the spirit of wanting to work with the Government as we move forward, but it does go a long way towards delivering, in a relatively simple manner, the objective of having a functioning statute book on exit day.

Amendment 358 deals with what those who worked on this perceive as a potential gap concerning the interpretation of domesticated EU law. Clause 6(3), as has already been observed, will preserve the effect of case law laid down before exit day. Clause (6)(2) will provide discretion, and we have talked a lot about taking that into account. I listened with interest to the speech by the hon. and learned Member for Edinburgh South West (Joanna Cherry) regarding her amendment on that point. Again, this amendment does not provide the whole answer, but it raises serious issues that need to be looked at, and I hope that Ministers will do so.