European Union (Withdrawal) Bill

Bernard Jenkin Excerpts

Committee: 8th sitting: House of Commons
Wednesday 20th December 2017 Commons Chamber

[Mr Leslie]

Governments would normally be expected to have information and facts, with evidence being collected and presented and with an assessment made based on information that has been analysed and digested in a professional way, but it appears that, although we were told they exist, the impact assessments do not actually exist but are sectoral analyses. What is the difference between an impact assessment and a sectoral analysis? Well, we have been discussing that for quite some time.

Returning to EU retained legislation, the right hon. and learned Member for Beaconsfield rightly pointed out that we have lived with important legal understandings, such as on equalities law and environmental law, for a number of decades. Those understandings have been tenets of our expectations of the civilised society in which we live. Of course, they will now be transferred from European law into UK law. If they had originated in this House, they would have been enacted in primary legislation and any changes would have had to be made through primary legislation. But the Government’s proposal is to take this new category of EU retained law and bring it into UK law, and it will not have the same status as primary legislation. In many ways, it will be repealable or amendable, often by secondary legislation—by statutory instrument. This is not a point about Brexit; it is about the process of transposition. It is important that the public know what is going on when we are doing this. If a transfer is taking place, information should be set out in the explanatory notes, not just about the technical details, but about the weight that those legal rights will have once they come back into UK law.

There are a number of other aspects to this—

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

The hon. Gentleman is making an interesting and relevant point, although it is of course true that all this legislation came in via secondary legislation in the first place and Parliament will have considerably more control over the secondary legislation that amends it than we currently have over the method that created it. I would imagine, as I am sure he does and the Government do, that Acts of Parliament will become more important, particularly if we want to make sure that this is not challengeable in the courts, as secondary legislation is much more vulnerable to challenge through the courts than primary legislation.

[Mr Leslie]

Yes. Although we disagree on many things, I think we can agree that if we are going to do this exercise, it needs to be done thoroughly and robustly, making sure that the intent of Parliament and the laws we are transposing are robust enough to withstand the test of time. Having explanatory statements to accompany those is an important development that has helped us in our legislative process recently. If we are going to have a sifting committee—it is not really a sifting committee; the procedures committee will be doing this—looking through all these statutory instruments and picking out which ones it thinks should not be passed through the negative procedure, this explanatory process ought to be in place to help hon. Members figure out which of these hundreds or even thousands of aspects of legislation are important enough to flag up to hon. Members more widely. That is a small point but it needs making. Other issues arise relating to “tertiary” legislation and the powers the Bill is giving to agencies and regulators to make, or to amend or remedy, laws. Again, I would like these things to be flagged up in plain English, wherever possible, so that parliamentarians can know about them. In essence, new clause 21 is about transparency, clarity and shining a light on this complicated bandwidth of activity that is about to hit all hon. Members, and that is important.

The only other point I wanted to make on this group—

--- Later in debate ---

[Mr Jenkin]

Clause 13 is confined to the publication and rules of evidence. The schedule itself is about publishing what is retained direct EU legislation. Can my right hon. and learned Friend describe to me what latitude the Government would have that could do so much damage, or be so capricious, within the powers of the Bill, and can he give an example of what would be so damaging and outrageous?

[Mr Grieve]

As I have explained, this is a Henry VIII power, so within the period in which this power is operational—this is on my reading, but perhaps my hon. Friends on the Treasury Bench will correct me—a Minister of the Crown may, by regulation, essentially change the way in which retained EU law is handled by requiring

“judicial notice to be taken of a relevant matter, or…provide for the admissibility in any legal proceedings of specified evidence of…a relevant matter”.

That is a very extensive power. Effectively, it gives a power to rewrite how legislation should be interpreted.

[Mr Jenkin]

Give us an example.

[Mr Grieve]

The examples could be endless—[Interruption.] Well, if there is an established rule by which, for example, EU law is currently being applied, a Minister could say that, in future, that should be disapplied because notice should not be taken of its previous application.

[Mr Grieve]

I do actually agree with the hon. Lady and, I am afraid, disagree with my hon. Friend the Member for Harwich and North Essex (Mr Jenkin). Of course, membership of the EU implies a pooling of sovereignty, but the decision-making process by which law has been created in the EU is one that is done not by faceless bureaucrats, but by the Council of Ministers. There is absolutely no doubt about that at all—

[Mr Jenkin]

In secret.

[Mr Grieve]

I do not wish to be dragged off into some new polemical argument. My hon. Friend says in secret, but, if I may say, we are signed up to hundreds of treaties other than that with the EU in which we pool our sovereignty to come to common positions with our fellow treaty makers.

--- Later in debate ---

[Paul Blomfield]

No, I do not, and it is unfortunate that some people have been characterised in that way, as the right hon. and learned Member for Beaconsfield (Mr Grieve) and others were by some of their colleagues last week. If I can now make some progress—

[Mr Jenkin]

Will the hon. Gentleman give way?

[Paul Blomfield]

Well, while we are talking about extreme voices, I am happy to give way.

[Mr Jenkin]

There are right hon. and hon. Members who say they want to honour the result of the referendum, but who actually want the European Union to carry on controlling our laws. I call them Brexinos—people who want Brexit in name only. There may well be a majority of them in this House, but that would not be respecting the result of the referendum, would it?

[Paul Blomfield]

The hon. Gentleman is a good example of those who see conspiracy in any corner. I note the article he wrote in The Guardian on 8 October under the title “It’s a sad truth: on Brexit we just can’t trust the Treasury”. He went on to say:

“There is no intrinsic reason why Brexit should be difficult or damaging, but the EU itself has so far demonstrated it wants to make it so…it has co-opted the CBI…the City and…the Treasury to assist.”

Well, I think that the majority of Members take a more rational view.

The decision taken in 2016 was not a mandate for driving over a cliff edge with no deal or for having no transitional arrangement in place. It was not a vote for leaving all the agencies and partnerships from which we have benefited over the years and could continue to benefit or for turning our back on the single market, walking away from the customs union or—I say this with an eye on the contribution made in the last debate by the right hon. Member for Chingford and Woodford Green (Mr Duncan Smith), who is paying more attention to his phone than to the debate—turning our back on the Court of Justice of the European Union.

--- Later in debate ---

[Mr Baker]

The hon. Lady is trying to pre-empt some of my remarks. If she will bear with me, I will come to that.

A crucial point is that the Bill does not determine whether the UK leaves the EU; that is a matter of international law under the article 50 process. However, it is important that we have the same position in UK law that is reflected in European Union treaty law. That is why the Government have signed these amendments, and I was glad to do so.

I can assure the Committee we would use this power only in exceptional circumstances to extend the deadline for the shortest period possible, and that we cannot envisage the date being brought forward. As my right hon. Friend the Prime Minister has said many times, we and the EU are planning on the UK leaving the European Union at 11 pm on 29 March 2019.

[Mr Jenkin]

I apologise to the Committee for having had to be in the Liaison Committee for the last couple of hours and for missing much of the debate. I thank my hon. Friend for accepting these compromise amendments. The Government are, in fact, accepting a very significant limitation on the powers they had in the original draft of the Bill. If we are interested in the sovereignty of Parliament, we are interested in limiting the room for Government to set arbitrary dates without any controls over them whatever. That is what existed in the Bill before. There is now proper control by Parliament of the date in the Bill.

[Mr Baker]

I am grateful to my hon. Friend. I would also like to say thank you to him for the role he has played in bridging the spectrum of opinion on this issue.

--- Later in debate ---

[Mr Baker]

I am most grateful to my right hon. and learned Friend. I know he is going to take this matter up further with my hon. and learned Friend the Solicitor General. I did actually just make two points, but perhaps I structured them ambiguously.

The third point is that in the event of a strike-down there would be no existing power under which fresh regulations could be brought forward, so it would be necessary to bring forward a fresh Act of Parliament or to rely on the remedial order-making power within the HRA itself. I should say that the remedial order-making power within the HRA was not designed to be the default means by which incompatible legislation is remedied or to deal with the policy changes that could be required.

The remedial order-making power may only be used if there are compelling reasons for doing so and it is targeted at removing the identified incompatibility. If wider policy change were needed following a finding of incompatibility, a fresh Act of Parliament would be the only means of doing that and we could be left with damaging holes in the statute book unless and until such an Act was passed. That is why the Government concluded that converted EU law should have the status of primary legislation in relation to the HRA, and that is why the Government will not be able to accept the two amendments.

[Mr Jenkin]

I wish to pick up on the important point raised by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). For the avoidance of doubt, will the Minister clarify that it is not the Government’s intention to set up retained EU law in UK statute in a manner that would encourage a UK court to strike down another primary statute? If that is the intention, may I suggest it might be something the Government will have to look at?

[Mr Baker]

My hon. and learned Friend the Solicitor General has just confirmed to me that we do not want that to happen. I am sure that that will be given further consideration, along with the issue of general principles that my right hon. and learned Friend the Member for Beaconsfield has raised.