European Union (Withdrawal) Bill

Debate between Antoinette Sandbach and Dominic Raab

Committee: 7th sitting: House of Commons
Wednesday 13th December 2017 Commons Chamber

[Dominic Raab]

I am just going to make a bit more progress.

I will address the point raised by the Labour spokesperson, the hon. Member for Greenwich and Woolwich, because I think he was on to something regarding the need to spell out and illustrate, albeit not necessarily exhaustively, the kinds of scenarios in which clause 9 remains relevant in the light of the proposed primary legislation. Let me offer a few illustrative examples.

Clause 9 may be required to legislate for the position of ongoing administrative proceedings when we leave the EU. This is a broad basket of technical issues, including the technical aspects of ongoing proceedings on competition and anti-trust issues under regulation 1/2003, for example, which sets out the co-ordination between the Commission and national competition authorities. Another example is the ongoing procedures on concentrations between undertakings in mergers under regulation 139/2004, and the allocation of jurisdiction between the EU and national authorities. These detailed and technical issues do not need to be put on the face of a Bill, but they must be legislated for in time for exit.

Another area for which clause 9 could be used relates to the privileges and immunities afforded by the UK to the EU—its institutions, bodies and staff—post exit. Privileges and immunities are a standard feature of international law, and are generally considered necessary for the proper functioning of international organisations. Privileges and immunities for the EU are currently implemented under protocol 7 of the treaty on the functioning of the European Union. After exit, the EU will continue to require privileges and immunities to cover any functions it has, although the precise contours may differ according to the deal that we strike. Our agreement on privileges and immunities will need to be implemented in domestic legislation.

[Antoinette Sandbach]

The point is that clause 9 is so widely drafted that it could apply to absolutely anything that could be linked with EU withdrawal. I am sure that the Department for Exiting the European Union has done a great deal of analysis—indeed, the Minister is showing that in his speech—of the areas that may be affected at the point of withdrawal. Surely that is the point at which the Government need to come to the House and, rather than speculating about what might be affected, actually identify that to us so that the powers can be limited precisely to those areas for which the Government need them.

[Dominic Raab]

I thank my hon. Friend for the constructive way she makes her point. Of course, until we have the withdrawal agreement, we will not know precisely the nature of the technical—

European Union (Withdrawal) Bill

Debate between Antoinette Sandbach and Dominic Raab

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Dominic Raab]

I am not going to give way again.

The point I wanted to reaffirm is that, given that the substantive rights codified by the charter will be retained in EU law, it does not make sense to incorporate the EU charter itself, an element of the EU’s institutional architecture designed to regulate EU membership, at precisely the moment when we are leaving.

[Antoinette Sandbach]

Does my hon. Friend accept that there may be a third category of rights that are in the charter but are not in the Human Rights Act, and require protection, and that the source of those rights cannot be identified other than in the charter? If so, will he accept the suggestion made by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) that there should be an Act of some sort to deal with them?

[Dominic Raab]

As I have made clear, we will publish a memorandum containing article-by-article analysis of the charter and how the substantive underpinning rights at the point at which it is codified can be reflected in UK law. I am happy to continue the dialogue with my right hon. and learned Friend the Member for Beaconsfield and my right hon. Friend the Member for West Dorset if they believe that any rights have been missed out.

I think that this is probably the right moment to deal with amendment 151, which was tabled by the right hon. Member for East Ham (Stephen Timms), and which relates to the protection of personal data.

European Union (Withdrawal) Bill

Debate between Antoinette Sandbach and Dominic Raab

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

[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?

--- Later in debate ---

[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.