European Union (Withdrawal) Bill

Antoinette Sandbach Excerpts

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

[Paul Blomfield]

I would have thought that it would be as clear to the hon. Gentleman as it is to me that leaving the European Union does involve revoking the European Communities Act. I will go on to explain why we have concerns about the Government’s amendments and the different decisions within them.

[Antoinette Sandbach (Eddisbury) (Con)]

Did the hon. Gentleman understand, as I did, when the vote on article 50 took place, that the provisions outlined in article 50 would apply, including the ability of 28 nations to agree to extend the negotiating process?

[Paul Blomfield]

I did indeed, and I will come to that point later in my remarks.

I said that the intention of the three amendments is clear despite the confusion caused by amendment 383. It is clear, but it is needless because article 50, triggered on 29 March 2017, provides for a two-year exit timetable.

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[Antoinette Sandbach]

Would the hon. Gentleman like to add to his list the comments of those such as Dan Hannan, who argued for leave? He said, “Don’t worry, you can vote to leave because we will stay in the single market and the customs union.”

[Stephen Gethins]

The hon. Lady makes an excellent and principled intervention. To double down on that, I will quote the leader of the Scottish Conservatives. The problem is that I cannot quote her directly; I will have to paraphrase what she said, because if I read out the quote, I would be held to be out of order in this place. She called into question the veracity of claims on costs in terms of the EU, and the veracity of claims made by people who are in government about Turkey’s EU membership and an EU army. I am sorry that I cannot quote her directly, but I would find myself in a bit of bother if I did.

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[Sir William Cash]

I am sorry to disillusion the hon. Lady. I have been in this House for 33 years and I have been on the European Scrutiny Committee for 32 of them. I can absolutely assure her that what she says is simply not reflected by the practice of the European Union: the system is essentially undemocratic.

[Antoinette Sandbach]

Does my hon. Friend not feel that it is ironic that all 12,000 EU regulations will be imported into UK law under a process that will not have the detailed scrutiny of the House, because Henry VIII powers will be used to do it?

[Sir William Cash]

My hon. Friend might just reflect on the fact that there is no other way of transposing the legislation. I drafted the original repeal Bill, so I understand it very well. I did so before the referendum, in fact, because—I say this to my right hon. and learned Friend the Member for Rushcliffe—I believed we would win. In reality, once we have brought this into UK law, we will be able to have our own Bills—on agriculture, fisheries, customs, immigration, and various other parts of our constitutional arrangements—that can be properly discussed and amended.

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[Yvette Cooper]

I share the hon. Gentleman’s concerns. As Select Committee Chairs, he and I have both heard evidence about security and wider issues, and I also share with him my personal views about the importance of having a transition period and a smooth process. To be honest, whatever people’s views on whether there should be a transition and on how we should respond to different negotiating outcomes, it should still be for Parliament to debate and to decide before exit day, not after. That is what Parliament should be for. Frankly, the Government would be irresponsible not to give Parliament the opportunity to debate and take a view on the terms and on the timing once they have been agreed.

There is a con in what the Minister said earlier, because the Government actually do recognise that there may be circumstances in which exit day has to be changed. The Minister said that clause 17 will not apply and that somehow it will not allow the Government to change the exit day through regulations after it has been agreed in the Bill, but that is not the advice I have had—it is not the advice the House of Commons Library gave me this afternoon, for example. In fact, the combination of clause 9 and amendment 383 will still allow Ministers to change exit day, if they so choose and if they think it appropriate. That is the impact of the Henry VIII powers throughout the Bill.

We understand why Ministers might want a provision to be able to come back and say that exit day needs to change because we have reached the 11th hour, because the negotiations need to be extended by an extra month or because the process needs to be changed. Ministers have kept that power in the Bill for themselves, but why should the power be reserved just for Ministers? Why cannot Parliament have that power, too? That is the flaw at the heart of the Bill. If in unforeseen or difficult circumstances Ministers need to change the timetable, they can, but Parliament will have no choice, no say and no ability to do so.

[Antoinette Sandbach]

Does the right hon. Lady agree that, if Parliament did have that opportunity, it would be taking back control and sovereignty would be returned not to the Executive but to this House?

[Yvette Cooper]

The hon. Lady is right. We had all those debates about taking back control and parliamentary sovereignty, yet somehow the Minister seems to want to rip it all up. The Government are trying to concentrate huge amounts of power in the hands of Ministers, rather than giving the whole of Parliament a say.

Ministers have to stop infantilising Parliament and treating Parliament as if it is the enemy. The truth is that the sky did not fall in because Parliament had a vote on article 50. The Government told us that it would, and they told us that the whole process would be stopped, but it was not stopped because each and every one of us understands that we have obligations and responsibilities towards the referendum result, just as we have obligations and responsibilities towards the negotiation process that the Government have to conduct on our behalf, and that we cannot directly conduct for them. We know that we have those different responsibilities, and we know that we have to take mature and responsible decisions given the complexity of the situation that faces every single one of us. We just do not think that those decisions should be entirely in the hands of Ministers; we think that the whole of Parliament should have a say on something so important.

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[Mrs Gillan]

My right hon. and learned Friend makes the same point that I am trying to make. Likewise, the Bill does not allow anyone who has suffered harm because of an act of the state in the period prior to the day of exit the right to lodge a claim under the rules as they stood at the time they were harmed.

[Antoinette Sandbach]

This is incredibly important for my constituents who could face issues relating to HS2, because a right of claim could arise between now and exit day, whenever that is set to be, and it is vital that their rights should not be changed during that period.

[Mrs Gillan]

My hon. Friend is leading me down a path that I do not wish to go down. I was very much hoping that I could make my contribution today without mentioning HS2, but the trouble is that if I do not mention it, someone else will. In fact, I agree with her entirely. To deny people those rights would be an abuse.

A retrospective removal of rights breaches the principle of legitimate expectation, because individuals have a reasonable expectation that their grievances should be heard under the rules as they stood at the time they were affected. For this reason, I am proposing these minor amendments to the Bill. I do not believe that they would undermine the overall effect of the Bill; rather, they would give legal certainty to those who were caught in the transitionary period. Anyone who has a claim originating in the period prior to Brexit should be able to have their claim heard under the rules as they stood prior to Brexit, including a right to a reference to the European Court. That is only fair and just. The British people voted for Brexit to improve their rights and the rights of their fellow citizens. They did not vote to cause legal confusion or harm, or to frustrate the rights of those relying on the courts during the transitionary phase.

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[Dominic Raab]

I take the point that the hon. and learned Lady makes, but that is not the same mechanism. It is not analogous and it is not desirable.

[Antoinette Sandbach]

I seek clarification on this point. Is the Minister saying that if a right of action has arisen before Brexit day that would have attracted, at the time that it arose, the full protections and a right to referral to the ECJ, that right will not be taken forward and those rights will, in effect, have been retrospectively changed?

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[Antoinette Sandbach]

rose—

[Dominic Raab]

I am going to make some progress.

[Antoinette Sandbach]

I may be able to assist the Minister with the explanatory notes.

[Dominic Raab]

That is kind, but I will make some progress; otherwise I will lose the thread in relation to amendment 303.

The amendment is at odds with the clear and certain position set out in the Bill, because it would continue to bind UK courts to some post-exit ECJ decisions and case law where the matters giving rise to the case have occurred before our exit. Those judgments would continue to be binding even after an implementation period. Strictly interpreted, the amendment would go further still. It would apply to anything happening before exit day and so would also include ECJ judgments on cases referred from outside the UK. For example, a preliminary reference made by another EU member state in relation to the interpretation of EU law might also fall within the scope of the amendment, if the facts of the case arose before exit day. The consequences would be far-reaching and risk creating considerable uncertainty and practical difficulties for the administration of justice.

UK courts and tribunals would continue to be bound by some new ECJ judgments for an indeterminate period. Those binding judgments could continue to be issued long after we have left the EU as cases continue to progress to the European Court from across the EU. Yet those judgments would not have formed part of the snapshot of retained EU case law that, under clause 6(3), will be binding on our courts, so far as is relevant, and subject to the rule in clause 6(4). By contrast, such post-exit judgments would bind our courts in all circumstances, including where the retained version of an EU regulation had since been modified by this Parliament or a devolved Administration. That would create foreseeable and entirely avoidable uncertainty, and it would not be necessary, because individuals whose cause of action predates our exit would, of course, continue to be able to take their case to the domestic courts, even if after exit they cannot reach the European Court. That is the fundamental point in relation to the procedural framework.

I now turn to amendment 304, tabled by my right hon. Friend the Member for Chesham and Amersham, in relation to retaining ECJ referrals and jurisdiction for anything that happened before exit day. In leaving the EU, we will bring an end to the jurisdiction of the ECJ—we have made that clear. The proposed amendment would frustrate that objective, because our courts could continue to make references to the ECJ in relation to cases where relevant matters have occurred before our withdrawal from the EU. As a result, different rules and processes would apply for those cases, compared with those where the relevant circumstances arose after exit day. That would, I fear, give rise to more not less uncertainty, because it would be impossible to predict for how long UK courts would continue to be subject to binding judgments from Luxembourg.

When we exit the EU, we will know exactly how many pending UK cases are registered with the European Court, awaiting a preliminary reference and thus covered by any proposed agreement we have with the EU on the treatment of pending cases. That is important to deliver certainty about how and when the Court’s jurisdiction in the UK will be brought to an end. The amendment would remove that certainty. Like amendment 303, it is not necessary. Individuals will not lose their ability to vindicate their rights in court after exit. They will be able to take such cases to our domestic courts.

Forgive me, Sir David, but I thought it necessary to address my right hon. Friend’s amendments in detail. Equally, I want to say that I recognise the eloquence and the force with which she champions her constituents. Ministers will take away the underlying issue that she has brought and powerfully moved for consideration. I hope that on that basis she will not feel she needs to press the amendment.

[Dominic Raab]

I thank my right hon. Friend for her constructive approach. We will take that consideration forward after these proceedings.

I will now rattle through the final amendments, so I have done them all justice and given them due consideration. I will turn next to amendment 306, tabled by the Opposition. Clause 6(2) states that our courts are no longer bound by decisions of the European Court after our departure or required to consider in future cases, although they may do so if they believe it to be appropriate. Clause 6 is a vote of confidence in our judiciary: its independence and its expertise. Using similar exercises currently undertaken with court judgments in other jurisdictions, our courts are best placed to decide to what extent, if any, they pay regard to EU law in any case before them.

The intention of amendment 306 is to remove that discretion from clause 6 and replace it with a duty that sets fetters on which aspects of EU case law our judges must consider, although only in certain areas. In practice, that would create a presumption that EU decisions should be followed in those areas. That is the clear intention, but it is inappropriate. It would undermine the purpose of clause 6 in both its fundamental objectives. It would frustrate the return of control to this House and the UK Supreme Court and expose the UK to substantial additional and unnecessary legal uncertainty.

[Antoinette Sandbach]

Will the Minister give way?

[Dominic Raab]

I am going to make a little bit more progress. I have given way to my hon. Friend.

The singling out of these areas of law appears somewhat arbitrary, given other fields the amendment might equally apply to. It would lead to a splintered approach to interpretation of the law and a fragmented UK jurisprudence—more uncertainty, not less. In any case, it is totally unnecessary. The UK has a proud history of ensuring the rights and protections of individuals in this country. The UK has high standards of protection domestically in relation to workers’ rights and human rights. We are recognised as a world leader in delivering robust, rigorous health and safety protections. That record and that commitment is not dependent on our membership of the EU; it is dependent on hon. Members in this House and their eternal vigilance. It will continue to be dependent on that after we leave. I hope that the right hon. Member for Islington North (Jeremy Corbyn) and his colleagues in the Labour party will not press amendment 306.

Finally, I turn to amendment 358 tabled by the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), which sets out the ability of UK courts to have regard to material used in the preparation of retained EU law. I hope that this is the point at which I give some reassurance 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). Currently, when interpreting EU law domestically, our courts will look at the language used, as well as considering the legislation’s recitals, legal basis and other language versions to inform their interpretation. We do not want to change how this law is interpreted or to create any fresh uncertainty about its meaning, so the Bill provides for the courts to continue that approach. Clause 6 provides that questions on the validity, meaning or effect of retained EU law will be decided in accordance with retained case law and general principles of EU law. This requires taking a purposive approach to interpretation where the meaning of the provision is unclear, considering relevant documents such as the legislation’s treaty legal base, working papers that may have led to the adoption of the measure and the general principles of EU law. I hope that reassures my hon. Friend the Chair of the Select Committee and that he will not press his amendment.