European Union (Withdrawal) Bill

Chris Leslie Excerpts

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

[Tom Brake]

The hon. Gentleman has answered a hypothetical question with another hypothetical, so I think I had better leave it there.

I will not be supporting new clause 49, as tabled by the right hon. Member for Birkenhead. The difficulty with his new clause and with the Government amendment is that our negotiating position would be made much worse by having a fixed deadline and not leaving scope to allow the article 50 process to be extended if the negotiations were close to a conclusion but not there. That would constrain us unnecessarily.

As for the Government’s position, their amendments have been comprehensively demolished by others during the debate. My concern is that the Government still seem to be arguing that there being no deal is something that they will happily pursue or are considering as an option notwithstanding the huge level of concern expressed by all sectors—certainly by all the businesses that I have met—about the impact of no deal.

If Members have not already been, I recommend that they go to the port of Dover to watch the process of trucks arriving at the port and getting on a ferry, the ferry leaving, another ferry arriving from the other direction, trucks getting off and then trucks leaving the port. It is a seamless process that does not stop. The lorries barely slow down as they approach Dover, get on to the ferry and then leave. Anything that gets in the way of that process, even if it means an extra minute’s processing time, will lock the port down. Members who think that no deal is a happy, easy option need to talk to people at the port to hear what the impact would be.

I am happy to support Plaid Cymru’s amendment 79 about ensuring that the devolved Assemblies have some say in the process, which has been significantly denied so far.

If we have a vote on clause 1 stand part, I will certainly be ensuring—

[Mr Chris Leslie (Nottingham East) (Lab/Co-op)]

Will the right hon. Gentleman give way?

[Tom Brake]

I am happy to give way.

[Mr Leslie]

Like the right hon. Gentleman, I am sceptical about clause 1 standing part of the Bill, because it asks Parliament to agree to sweep away the whole body of the 1972 Act without knowing what on earth will replace it. It asks us to embark on that journey without knowing the destination. Conditions should be placed on the repeal of the 1972 Act. For example, we should have a treaty with the European Union before the repeal is allowed to take place.

[Tom Brake]

I thank the hon. Gentleman for that intervention. I think we may have the opportunity to put that to the test shortly.

In conclusion, the debate has unfortunately again revealed the obsession that Europe holds in the hearts of some Government Members. When it comes to Europe and our membership of the European Union, I am afraid that they have left their rationality at the door of the Chamber. If we do leave the European Union, they will be leading the country down a path that will, in my view and in the views of many Cabinet members, many Conservative Members and many Opposition Members, do long-lasting damage to our country.

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Brought up, and read the First time.

[Mr Leslie]

I beg to move, That the clause be read a Second time.

[The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)]

With this it will be convenient to discuss the following:

Amendment 357, in clause 6, page 3, line 29, at end insert—

“(A1) Retained EU law is to be interpreted in accordance with subsections (A3) to (A7), unless otherwise provided for by regulations under this Act.

(A2) Subsections (A3) to (A7) do not affect the application of section 7 to retained EU law where, but for the operation of those subsections, the retained EU law would fall within that section.

(A3) Retained EU law does not allow, prevent, require or otherwise apply to acts or omissions outside the United Kingdom.

(A4) An EU reference is not to be treated, by reason of the UK having ceased to be a member State, as preventing or restricting the application of retained EU law within the United Kingdom or to persons or things associated with the United Kingdom.

(A5) Functions conferred on the EU or an EU entity are to be treated as functions of the Secretary of State.

(A6) Any provision which requires or would, apart from subsection (A5), require a UK body to—

(a) consult, notify, co-operate with, or perform any other act in relation to an EU body, or

(b) take account of an EU interest,

is to be treated as empowering the UK body to do so in such manner and to such extent as it considers appropriate.

(A7) In subsection (A6)—

‘a UK body’ means the United Kingdom or a public authority in the United Kingdom;

‘an EU body’ means the EU, an EU entity (other than the European Court), a member State or a public authority in a member State;

‘an EU interest’ means an interest of an EU body or any other interest principally arising in or connected with the EU (including that of consistency between the United Kingdom and the EU);

‘requires’ includes reference to a pre-condition to the exercise of any power, right or function.”

This amendment provides a scheme for interpretation of EU law and to provide a backstop where necessary transposition has not been effected by regulations made under Clause 7.

Amendment 279, page 3, line 32, after “exit day” insert—

“as appointed in accordance with subsection (6A)”.

This paving amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.

Amendment 303, page 3, line 32, after “Court” insert—

“except in relation to anything that happened before that day”.

This amendment would bind UK courts to European Court principles laid down or decisions made after exit day if they related to an act before exit day.

Amendment 202, page 3, line 33, after “matter” insert—

“(other than a pending matter)”.

Amendment 280, page 3, line 33, after “exit day” insert—

“as appointed in accordance with subsection (6A)”.

This paving amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.

Amendment 304, page 3, line 33, at end insert—

“except in relation to anything that happened before that day.”

This amendment would enable UK courts to refer matters to the European Court on or after exit day if those matters related to an act before exit day.

Amendment 137, page 3, line 34, leave out subsection (2) and insert—

“(2) When interpreting retained EU law after exit day a court or tribunal shall pay due regard to any relevant decision of the European Court.”

Amendment 281, page 3, line 34, after “exit day” insert—

“as appointed in accordance with subsection (6A)”.

Amendment 306, page 3, line 35, leave out from “but” to end of line 36 and insert “a court or tribunal has a duty to take account of anything done by the European Court in relation to—

(a) employment entitlement, rights and protections;

(b) equality entitlements, rights and protections;

(c) health and safety entitlement, rights and protections.”

This amendment would help to ensure that Britain continues to have harmonious social standards with the EU.

Amendment 358, page 3, line 36, at end insert—

“( ) In addressing any question as to the meaning or effect of retained EU law, a court or tribunal must have regard to—

(a) any material produced in the preparation of that law, or

(b) any action taken or material produced in relation to that law before exit day by an EU entity or the EU, to the same extent as it would have had regard to such material or action immediately before exit day.”

The amendment would make clear that non-binding aids to the interpretation of EU law, such as background materials and official guidance produced before exit day, should continue to be taken into account by the courts when interpreting retained EU law to the same extent as at present.

Amendment 278, page 4, line 19, at end insert—

“(6A) The exit day appointed (in accordance with section 14 and paragraph 13 of Schedule 7) for the purposes of subsections (1) and (2) must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”

This paving amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.

Amendment 203, page 4, line 20, leave out subsection (7).

Amendment 282, page 4, line 26, after “exit day” insert—

“as appointed in accordance with subsection (6A)”.

This consequential Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.

Amendment 283, page 4, line 33, after “exit day” insert—

“as appointed in accordance with subsection (6A)”.

This consequential Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.

Amendment 284, page 4, line 44, after “exit day” insert—

“as appointed in accordance with subsection (6A)”.

This consequential Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.

Clause 6 stand part.

Amendment 384, in clause 14, page 10, line 36, at end insert—

“‘pending matter’ means any litigation which has been commenced in any court or tribunal in the United Kingdom and which is not finally determined at exit day”.

This amendment provides a definition of pending cases for the purposes of Clause 6.

Amendment 353, page 10, line 48, at end insert—

“‘retained case law’ means—

(a) retained domestic case law, and

(b) retained EU case law;”.

Amendment 354, page 11, line 2, at end insert—

“‘retained domestic case law’ means any principles laid down by, and any decisions of, a court or tribunal in the United Kingdom, as they have effect immediately before exit day and so far as they—

(a) relate to anything to which section 2, 3 or 4 applies, and

(b) are not excluded by section 5 or Schedule 1,

(as those principles and decisions are modified by or under this Act or by other domestic law from time to time);

‘retained EU case law’ means any principles laid down by, and any decisions of, the European Court, as they have effect in EU law immediately before exit day and so far as they—

(a) relate to anything to which section 2, 3 or 4 applies, and

(b) are not excluded by section 5 or Schedule 1,

(as those principles and decisions are modified by or under this Act or by other domestic law from time to time);

‘retained EU law’ means anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4 or subsection (3) or (6) above (as that body of law is added to or otherwise modified by or under this Act or by other domestic law from time to time);

‘retained general principles of EU law’ means the general principles of EU law, as they have effect in EU law immediately before exit day and so far as they—

(a) relate to anything to which section 2, 3 or 4 applies, and

(b) are not excluded by section 5 or Schedule 1,

(as those principles are modified by or under this Act or by other domestic law from time to time).”

[Mr Leslie]

If we do not have a transitional period after exit day and find ourselves moving to substantially different arrangements and a new set of alliances with member states of the European Union, we may have great turmoil in our economy, with a significant number of jobs moving to other jurisdictions. Most people in this debate—apart from the fabled hardliners on the fourth row back below the Gangway on the Conservative Benches—now accept that a transition is needed. The Prime Minister made that point in her Florence speech. However, if hon. Members look very closely at the Bill, they will see that there really is not much in it about the transitional arrangements. Exactly how it will take place has very much been left up in the air.

New clause 14 seeks clarification from the Government about how a transition will be put in place and operate. It simply calls for a report to be made by Ministers one month after the Bill has received Royal Assent to clarify a number of things. Principally, the report would clarify the question how retained EU law will be interpreted during the transitional period, and by extension, how the relationship with the European Court of Justice and many other aspects will operate during that period.

[Caroline Lucas (Brighton, Pavilion) (Green)]

I very much support the new clause, but does the hon. Gentleman share my incredulity at the fact that the Government have not simply said, “Yes, of course we need to inform businesses and regulators about how retained EU law will be reinterpreted during the transition”? It is very odd that they have not recognised that this very basic and self-evident thing needs to be done.

[Mr Leslie]

I suspect that that is because the Government are struggling to get such a transition. They have admitted that one is necessary, which is a good step. In her Florence speech, the Prime Minister made that concession. In fact, it is probably the biggest single negotiating input that we have seen from the Government since the triggering of article 50.

I have been talking to businesses and I know many hon. Members have done so, and we are hearing that if they do not have some clarity by January or February, they will have no choice but to put in place contingency plans for a no deal and the fabled cliff edge that we would reach at the end of March 2019. This goes beyond the financial services issues, because it applies to a number of sectors of the economy. We need to make sure that we have some certainty. That is why so much is on the shoulders of the Prime Minister in the December European Council meeting, when we are told that we might get some movement from the European Union on this issue.

[Stephen Doughty]

My hon. Friend is making an excellent point about the transition. A whole series of amendments have been tabled on this issue, and I wholeheartedly support his new clause. Are the businesses he has spoken to not already having to make very difficult and costly hedging decisions because of the uncertainty caused by the Government and, indeed, the siren call from the small number who want us to go off the cliff into a catastrophic, no deal Brexit?

[Mr Leslie]

There is a sort of sadism or masochism— I do not know which it is—on the part of a small number of hon. Members who relish the idea of a no deal scenario, saying, “The WTO has a fantastic set of rules —let’s just dive straight in.” However, I think there is consensus in the House that a transition is necessary, and if that is the case, we must work together across the parties to make sure we put in place the right legislative framework to deliver and facilitate such a transition.

The Prime Minister pointed out after her Florence speech that the European Court of Justice will

“still govern the rules we are part of”

during a transition. The Prime Minister is right. The European Union has said in terms that the entirety of the acquis communautaire needs to apply during a transitional period and that it is the equivalent of the single market, the customs union and the four pillars—the freedoms—within them. That has to include the European Court of Justice, if we are going to sign up to that set of arrangements. That is also the Labour Front Benchers’ policy for the transitional period. Indeed, they will want to speak to their own amendments detailing how they envisage the transition needs to take place.

It is worth reminding ourselves why it is that, during a transition, we will still need a resolution mechanism through the European Court of Justice. The right hon. and learned Member for Rushcliffe (Mr Clarke) mentioned in an earlier intervention that the UK took the European Central Bank to the European Court when there was a question whether the euro clearing arrangements might not be feasible in the City of London. From time to time, therefore, we have benefited from that dispute resolution arrangement.

What would happen if other circumstances arose during a transition? For instance, if UK citizens living abroad wanted to get their pension payments but there was an obstacle to them doing so, they would need to be able to seek redress, and that could be provided by the European Court. If a breach of competition rules adversely affected a UK firm, it might seek to get redress through the European Court of Justice. If the European Union started passing rules in conflict with the transition agreement, we would want the Court to resolve the situation in our favour. If UK firms were denied market access in the European Union, we would need resolution arrangements during a transition period. The application of the European Court of Justice is integral to such issues—the Prime Minister was right to accept that—but the Bill presents a problem.

[Sir Oliver Letwin (West Dorset) (Con)]

The hon. Gentleman has listed a series of issues, each of which is a legal issue. How does he suppose we could delegate to the Government a prerogative power to decide how the courts could decide those issues?

[Mr Leslie]

My proposed new clause seeks to elicit from the Government information on how they are going to deal with the issue. The Prime Minister has said that she accepts that the European Court of Justice would need to continue to have jurisdiction during a transition. However, there are problems in the Bill.

I invite hon. Members to turn to page 3 and read clause 5(1), which states:

“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.”

Therefore, under the Bill as framed, the ECJ arrangements will not apply beyond exit day. Further down on page 3, clause 6(1) and (2) similarly state that no regard will be made to the European Court after exit day.

[Mr Grieve]

The hon. Gentleman is absolutely right. The way in which this Bill is framed takes no account whatsoever of the possibility of a transitional arrangement.

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[Mr Leslie]

The right hon. and learned Gentleman is entirely correct. The whole purpose of Committee scrutiny is to try to get some sense out of what is a very complicated set of arrangements. In some ways, the Bill was drafted in an era pre-dating the Florence speech, when we were moving from state A to state B—in other words, from pre-exit day to post-exit day. Of course, the Prime Minister has now accepted that there will be a transition, so a new interim period has been floated, but no legal architecture has been proposed for it at this stage.

The Secretary of State for Exiting the European Union yesterday floated the idea of an Act of Parliament that would also include details about implementation at some indeterminate point, potentially after exit day. New clause 14 seeks clarity from Ministers. They must set out in more detail precisely what would happen to the legal framework in that transitional period.

[Helen Goodman]

Does my hon. Friend share my astonishment at the answer to my question this afternoon about what the legal basis for the transition period would be? Does he agree that the Government have succeeded in minimising their room for negotiation by fixing the exit day and maximising legal uncertainty and that the one thing that business has been calling for is legal certainty before Christmas?

[Mr Leslie]

As my hon. Friend says, I am starting to wonder whether the Government will reverse ferret a little bit on the fixed date. We will wait and see—I think the vote will come up on day eight. It is obvious that it has not been as thought through as it should have been.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

My hon. Friend is making some excellent points. Various businesses in my constituency and unions have pointed out the need for, and the benefits of, a transitional period. Does he, like me, feel that because of the Government’s actions we are sleepwalking towards a no-deal scenario that would have a catastrophic impact on our economy?

[Mr Leslie]

I fear that that scenario is beginning to loom on the horizon. We know the Prime Minister does not want that because she says she wants the transitional arrangement, but more flesh has to be put on the bones in terms of how the UK envisages the transition and at the European Council in December. If a transition deal is not signalled, with more flesh put on the bone in December, a lot of firms will say, not unreasonably, “We have to plan for a scenario in which we are not legally able to sell our services to the 500 million customers across the other 27 countries.” We hear that American corporations that currently have their base in London are looking at all sorts of convoluted branch-back arrangements, so that they can subsidiarise back into the UK. This is getting terribly complicated and very expensive. Ultimately, all these issues will hit consumers and workers in the UK. It will have a very practical effect on the lives of many of our constituents.

[Mr Jenkin]

I share the hon. Gentleman’s and the Prime Minister’s hope that there will be a sensible implementation period, although, as the Secretary of State has said, it is a diminishing asset if it is left later and later before we know are going to get it. I welcome the inquiring way in which the hon. Gentleman is proposing his new clause, but I think he has made his own point. If there are to be any enforceable legal obligations arising from a withdrawal agreement, or any agreement, after we have left, they should be done through the Act of Parliament that was announced yesterday and not incorporated into this Bill. That is why it is safe to put the exit date in the Bill, because the exit date ends the jurisdiction of the European Court of Justice.

[Mr Leslie]

Let us imagine the circumstances where exit day falls at that fateful 11 pm on 29 March 2019 and there is no legislative architecture in place for the transitional period from 11.1 pm and thereafter. At present, there is no guarantee from the Government—I will give way to them if they will guarantee it—that that legislation will be put in place, published and consulted on and that businesses will know what the transitional legal framework will be from 11.1 pm on 29 March 2019 onwards. The Government have said that we might not get the latest offer of an Act of Parliament until not only after a withdrawal treaty has been signed and sealed by Ministers, but after exit day. There is, therefore, a hiatus. What is the legal architecture that fills the gap in that transition? That is the question I am asking in new clause 14.

[Mr Kenneth Clarke]

Just to reinforce the hon. Gentleman’s question: the Bill seems to say that after exit day all European law and legal obligations drop and the jurisdiction of the ECJ goes. If we have the transition period proposed in the Florence speech, the subsequent Bill will presumably have to amend this Bill, change the Government’s position and produce new provisions that qualify it. Given that the Florence speech seems to be the only policy we can cling to—it is agreed to by both Front-Bench teams, in theory—would it not be logical just to put the substance of that speech into this Bill and adjust it so that it complies with it?

[Mr Leslie]

The right hon. and learned Gentleman and I have shared this inspiration in the form of an amendment that will also come up on day eight of Committee. Of course, the Labour Front-Bench team will shortly be talking to their own amendment 278, which seeks to deal with this problem by deferring exit day until after the transition has been completed. The idea essentially is to keep the existing legal framework in place, not just for the period up until exit day but for the transition period. That, of course, is one way to solve the problem.

The Bill, though, cannot adequately deal with the transition, and not just because of the contradictions in clauses 5 and 6. Even if one stands on one leg and squints a little bit at the order-making powers in clauses 7 or 9, none seems capable of dealing with the implementation of a transition period. It is clear, then, that we need answers from Ministers. They have said that they will bring forward a Bill, but they have to ensure certainty for business during the transition period. It could be a two-year-plus period. I do not think that two years is long enough, but if it is to be two years, that is still a long time for businesses to operate without a framework of legal certainty. New clause 14 simply says that Ministers must give details within one month of Royal Assent as to how the ECJ arrangement will apply during the transition.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

Is it not clear, from what has been said in Europe and by business, that they want the transition deal to be the same as what we have now, with all the same obligations, so that they do not have to go through two sets of changes?

[Mr Leslie]

That is absolutely the preference of most sensible observers. We need a transition, of course, because the trade deal arrangements cannot possibly be made adequately by the time of exit day, unless the Secretary of State for International Trade pulls a rabbit out of the hat—perhaps he has been known to do that in the past, but I doubt it will happen this time. The transition period is therefore vital if the UK is to salvage and stitch together a trade arrangement.

We must not forget, moreover, that the 57 existing free trade arrangements with non-EU countries from which the UK benefits by virtue of our EU membership will have to be grandfathered—copied and pasted into UK arrangements. The right hon. and learned Member for Beaconsfield (Mr Grieve) talked about the 759 different international treaties. We do not know quite how those will apply. We have to think about the legal framework not just after but during the transition. We have a massively complex set of legal steps to take, yet we have no clarity from Ministers, apart from this concession yesterday that there might be a Bill at some point, possibly after exit day, perhaps with a vacuum—

[Mr Robin Walker]

indicated dissent.

[Mr Leslie]

I will give way to the Minister, if he is saying no. If I understand him correctly, he is going to introduce and enact the promised Bill well ahead of exit day. I will give way to him if that is the case.

[Mr Robin Walker]

indicated dissent.

[Mr Leslie]

Well, the Minister proves my point. We need a report from the Government very soon after Royal Assent to answer this question. New clause 14 is a very gentle, soft amendment that I hope will nudge the Government into answering that question.

[Peter Kyle]

A transition implies moving from one place to another. If we write into statute the date on which we are to leave, industry and the economy will wake up the next day and find that we are out of the jurisdiction of the European Court of Justice, out of the customs union and out of the single market. That is not a transition but an overnight crash. The Government say that we will then make a further transition and then pick up the pieces, like the Road Runner hitting the ground and having to pick himself up afterwards. This is not an orderly transition; it is, by any definition, a car crash. Does my hon. Friend not agree?

[Mr Leslie]

Yes. There are massive risks, and if we do not have an orderly transition, there will be big consequences. However, although we have identified 29 March 2019 as a key date, there is another critical date, which will fall in the first quarter of the next calendar year. Many businesses are saying that they must have certainty about what the shape of the transition will be by that time.

The clock is ticking much more swiftly than Ministers may have appreciated. We need to know that they are rolling up their sleeves ahead of the European Council, which begins on 14 December. We may just complete the Committee stage during that week, but it is vital for businesses to have certainty, and it is also vital for Ministers to explain how aspects of the transition will take place. In a way, it would be disloyal to the Prime Minister for them not to do so.

[Mike Gapes]

My hon. Friend has mentioned the concern felt by businesses. That concern is widespread, ranging from the Confederation of British Industry to the Federation of Small Businesses. It is also felt by the workers and their representatives, including the TUC and many individual trade unions. Why on earth are the Government being so stubborn?

[Mr Leslie]

We can only speculate. There was even a suggestion at one point that Ministers had not yet broached the topic of transition with their counterparts in the EU and Michel Barnier. Thankfully the Prime Minister raised it in her Florence speech, and I hope that her Ministers are now getting it under way, but we need more certainty and clarity. There is a serious period—two years plus—during which legal arrangements must be put in place. It is not unreasonable for the House to ask Ministers to clarify the position at the earliest opportunity, and certainly by the time the Bill receives Royal Assent.

[Mrs Cheryl Gillan (Chesham and Amersham) (Con)]

I want to talk about amendments 303 and 304, which stand in my name, and to return to a matter that I raised on Second Reading. I hasten to add that the amendments relate to a specific constituency case. However, I do not want to air the details; I want to stick to the principles, because the case in itself raises a problem that I would like the Government to have a look at.

As we know, the Bill transfers all EU law into UK law. That will become effective on the day of exit, ensuring that all the rights enjoyed by British citizens today will be available to them after Brexit. Owing to some practical difficulties, however, some rights cannot be transferred easily because they are entirely reliant on the European Court. The right of the individual to sue a member state for damages when the law has been incorrectly applied and has caused them harm is ultimately reliant on the rulings of the European Court, and on a legal precedent that I think many of the lawyers who surround me in the Chamber know as Francovich.

Although the UK courts will deal with such cases, they must refer questions about the interpretation or application of EU law or EU legal principles to the European Court, particularly when the interpretation is unclear and applies to every member state. Such a reference to the Court will occur, for example, when the interpretation of rules pertaining to the application of VAT across the EU is required. After Brexit the UK courts will determine all law, and there will be no references to the European Court.

I want to give the Government an opportunity to ensure that the principle underlying Francovich—the protection of individuals against malfeasance by the state—will develop within the British legal system. In the meantime, however, there is a transitional issue arising from changes in the law that impacts individuals who have already commenced such legal action prior to Brexit, or who might wish to commence such an action after Brexit in relation to an issue that occurred in the period prior to Brexit.

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[Dominic Raab]

I think the Chair of the Select Committee has answered his own question. The point is that we will produce separate primary legislation to deal with the withdrawal agreement and the terms of any transition. We should not be putting the cart before the horse. This Bill is about making sure that we have at our disposal all the means to implement in UK law any deal, and its terms, as and when it is struck.

[Mr Leslie]

Will the Minister give way?

[Dominic Raab]

If the hon. Gentleman will allow me, I shall make a little progress, because I suspect that—

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I hope that the hon. Member for Nottingham East will agree; I sensed during his speech that he recognised that his new clause has now been rendered redundant by the statement made to the House yesterday by my right hon. Friend the Secretary of State, who made it clear that the Government will introduce primary legislation and implement the withdrawal agreement and the terms of any implementation period.

[Mr Leslie]

rose—

[Dominic Raab]

Let me finish my point.

Therefore there will be full transparency and accountability to this House on the issue that the hon. Gentleman feels so strongly about. I urge him to withdraw his new clause, but I will give him one further crack at it.

[Mr Leslie]

I am grateful to the Minister for allowing me to probe him on this point. He has suggested that the legal architecture framework for the transitional period will be set out in the Bill that he brings forward for the implementation period. However, it is only possible to agree with that plan if he is guaranteeing that Royal Assent for the implementation Bill will come in ample time before exit day. Clearly, it would be nonsensical to have an implementation piece of legislation that leaves a vacuum between exit day and some later date, when the transition had already started. Can he guarantee that that Bill will be enacted and enshrined in law in good time, well before exit day?

[Dominic Raab]

I sense that the hon. Gentleman recognises that he is putting the legislative cart before the diplomatic horse. Of course the implementing legislation relates to the agreement, and we need to have one in place to comply with the terms of any obligations, whether they are under the withdrawal arrangement, the implementation period or the future partnership deal.

I now turn to amendment 357, tabled by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), Chair of the Justice Committee.

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[Dominic Raab]

The hon. Gentleman is very kind. He had the chance in his speech to make his rapier-like points. I am dealing with his amendment and the very real risk that, with the greatest will in the world, what her Majesty’s Opposition are proposing will add to, rather than mitigate, the uncertainty. When we go away from the fireworks of this debate, it ought to be our common endeavour to minimise that uncertainty.

My right hon. Friend the Secretary of State for Exiting the European Union made it clear yesterday that there will be separate primary legislation for the withdrawal agreement and any implementation phase, so these amendments are entirely unnecessary in any event. We have also been clear—I think this addresses the hon. Gentleman’s point—that, in leaving the EU, we will bring an end to the direct jurisdiction of the European Court in the UK.

Our priority must be getting the right arrangements for Britain’s relationship with the EU for the long term.

[Mr Leslie]

Will the Minister give way?

[Dominic Raab]

I have given way to hon. Gentleman before. I am going to make some progress.

That priority means getting a close economic partnership, but out of the single market, out of the customs union and without the direct jurisdiction of the European Court. We want to get to that endgame in a smooth and orderly way, with the minimum of disruption.

That is why we want early agreement on the implementation period—on that much, we are agreed. That may mean we start off with the European Court still governing some of the rules we are part of for that period, but the Government are also clear that if we can bring forward a new dispute resolution mechanism at an earlier stage, we shall do so. These amendments do not allow for that. They prejudge and pre-empt the outcome of negotiations, and they introduce legislative inflexibility by saying that we must keep rules in domestic law that would bind us to the jurisdiction of the European Court after we leave, for the full duration of any implementation period, without our knowing for a second how long that might be. The Government are making the case for legal certainty. The Labour party is proposing legal limbo. We cannot accept that.

--- Later in debate ---

[Sir Oliver Letwin]

Notwithstanding the chuntering of my right hon. Friend the Member for Broxtowe (Anna Soubry)—and she is a friend of mine, but she is quite wrong about these issues—I happen to agree with my hon. Friend. My point is, however, that it does not matter nearly so much which side of the argument we are on as that we should be clearly on one side or the other.

I feel sure that the reason clause 6(3)(a) says that the court should judge

“in accordance with…any retained general principles”

is exactly the reason that was cited by the former Attorney General, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). As we see in clause 5(2), the purposive and teleological nature of the judgments, and the ability of those judgments to be used to quash even Acts of Parliament, should apply to the way in which our courts continue to interpret retained law. That, I think, is the intent of clause 6(3)(a).

This leaves us with the wide-open, yawning question of whether the Supreme Court should be making judgments when it is, we are told in clause 6(4)(a),

“not bound by any retained EU case law”,

but should nevertheless apply the general principles, and try to use the same purpose and teleological reasoning that the ECJ uses. We are not told, and the judges are not told. Far from creating legal certainty, clause 6 seems to me to create the largest possible degree of legal uncertainty. That is not a tolerable position. It is not one that the Government wish to achieve, and not one that the Opposition wish to achieve. I do not believe that anyone in the House of Commons wishes to achieve it. However, it is what the clause, as currently drafted, achieves.

[Mr Leslie]

The right hon. Gentleman is absolutely right to point out issues that need to be clarified as soon as possible, which is why new clause 14 says, in a very polite way, that it would help everybody if the Government, within one month of Royal Assent to the Act, could publish a report explaining in proper detail how EU retained law applies in that transition period.

[Sir Oliver Letwin]

The hon. Gentleman did not allow me to intervene on him, but let me say now that, unfortunately, his point is wholly irrelevant to clause 6; it relates to the transition which will be covered in another Bill. My concern is about the continuing state of UK law following exit. This is not going to be resolved by the Government producing a White Paper. It has to be resolved by clause 6 being drafted in a way that creates the very legal certainty that the Government so admirably wish to create, and which they at present so abundantly fail to do.

--- Later in debate ---

[Dominic Raab]

I am not going to give way; the hon. Gentleman has had his opportunity. Time is running out and I want to give the hon. Member for Nottingham East (Mr Leslie) the chance to wind up. We cannot accept amendments that create more rather than less legal certainty, so I urge all hon. Members to pass clause 6 unamended this evening.

[Mr Leslie]

I thank Members for a debate that has covered a wide range of issues relating to transition and the application of EU law, but that has also revealed a number of interesting facets of Government policy. It was particularly stark that the Minister, who would not give way just now to my hon. Friend the Member for Ilford North (Wes Streeting), could not let the words, “The ECJ would apply during a transition” pass his lips. That was the very phrase the Prime Minister, for it was she, put into the Florence speech. I thought that speech was Government policy, but it turns out apparently not to be—not today.

[Dominic Raab]

rose—

[Mr Leslie]

Oh, perhaps I am wrong. I will give way, of course.

[Dominic Raab]

I will repeat, in terms, exactly what I said earlier. We want an early agreement on an implementation period. As the Prime Minister said in the Florence speech, that may mean we start off with the European Court still governing some rules we are part of for that period, but the Government are also clear that if we can bring forward a new dispute resolution mechanism at an earlier stage, we will do so. The hon. Gentleman should have listened to what I said earlier.

[Mr Leslie]

Well, well, well. The number of caveats, little changes and weasel words within that particular obfuscatory explanation were not as clear as what the Prime Minister said at that time. That was fascinating and I suspect the Minister will get a phone call from No. 10 in the morning. New clause 14, which I would like to test the will of the House on, is still very relevant; we need to get clarity from the Government a month after Royal Assent on how exactly transition would apply. It is clear that although they say there will be an Act of Parliament, we do not know that that can be completed and enacted before exit day. We may find ourselves with a vacuum. We need much more clarity from Ministers. The Minister has proven the point and made the case amply, which is why I wish to press new clause 14 to a vote.

Question put, That the clause be read a Second time.