Withdrawal Agreement: Legal Opinion

Chris Leslie Excerpts

1st reading: House of Commons
Tuesday 12th March 2019 Commons Chamber

[The Attorney General]

No, I do not agree. The position is more nuanced than that. The pattern of refusing to accept reasonable proposals such as alternative arrangements that could not be said to compromise fundamental interests at the border would be raised immediately—a prima facie question. A pattern of consistent refusal would raise a prima facie question over the best endeavours and good faith clause. As my hon. Friend will have seen, some of these provisions are already in the joint instrument, including systematic conduct, declining to consider, declining to be flexible and declining to consider adverse interests. These best endeavours duties are real duties that are contained in commercial contracts all the time. They are litigated and brought to court, as he will know. We must not allow our fears to run away with us. We need to trust ourselves. We can make the leverage of the backstop as powerful an argument for them not to remain in it as it is for us.

[Mr Chris Leslie (Nottingham East) (Ind)]

Does not all this hand-wringing over the backstop reflect the hubris of those who thought they could reconcile the irreconcilable—the alchemists who believed that they could conjure up this pretence of Brexit at the same time as a frictionless, open Irish border? Have we not finally reached the end of the road for the spinners, peddlers and blaggers in the leave campaign who stooped to lying about this being the easiest thing in the world?

[The Attorney General]

Of course, claims are made on both sides of the argument in any election or battle before the electorate. I remember some pretty exaggerated ones being made on the hon. Gentleman’s side of the argument, to be frank. If there is a serious point lying beneath that stream of adjectives, I would have to say that I agree with the hon. Gentleman in one respect: the enemy of the interests of this country is dangerous oversimplification of the complexity of the problems that we face. If that is the point that resides beneath his question, I would agree. We cannot underestimate the complexity of separating ourselves from 45 years of organic, legal and other integration with the European Union, but this withdrawal agreement does not underestimate that; it addresses the issues at a complex level, secures rights, and fairly apportions the dues and obligations. It is a deal that we need in order to achieve the first stage of that separation.

European Union (Withdrawal) Bill

Chris Leslie Excerpts

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[Paul Blomfield]

I agree absolutely with my right hon. Friend, and I hope even at this stage that Members across the House might join us in supporting amendment 4.

I do not often agree with the Under-Secretary of State for Exiting the European Union, the hon. Member for Fareham, but I am delighted to say that in this case I do. She is right that the charter does indeed go beyond the European convention on human rights and that EU retained law will be incoherent without it. Our amendment is necessary, therefore, if we are to achieve the Government’s own stated objective of protecting the rights of UK citizens. This is a crucial issue. The chair of the Government’s own Equality and Human Rights Commission, David Isaac, has said:

“The government has promised there will be no rowing back on people’s rights after Brexit. If we lose the charter protections, that promise will be broken. It will cause legal confusion and there will be gaps in the law.”

These are serious concerns. Human rights should not be a dividing line across the House but should be seen as a British value, and I urge all Members who do not want Brexit hijacked and the rights of UK citizens diluted and reduced to support the amendment.

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

I want to speak briefly to several of the amendments in this group. In particular, I want to encourage the right hon. and learned Member for Beaconsfield (Mr Grieve) to elaborate on his rather carefully crafted new clause 13, which sets out quite a clever solution to the vexed question of EU retained law. He slightly rushed through his explanation of the new clause towards the end of his speech, but as I understand it, he is suggesting that, rather than treating as a new category of law the whole corpus of 40 years of accrued EU legislation, rights and duties that we all enjoy—or not, depending on how they apply—for the purposes of future amendment or reform of those rights and retained law, certain aspects should be treated as primary legislation and others as secondary legislation.

I think the right hon. and learned Gentleman was saying that issues that fell under article 289 should be treated as primary legislation because they were of greater import, and that if we wanted to amend them again in the future we should do so by Act of Parliament, whereas aspects of retained EU law that related to delegated instruments under article 290 should be treated as secondary legislation, and if there were future reforms of those aspects, Parliament could use the secondary procedure. It would be most helpful if the right hon. and learned Gentleman could give us a little more detail about why he felt that those were the right categories to pursue.

[Mr Grieve]

I am certainly not going to make a mini-speech; I said what I felt was sufficient. I offer the new clause not as a perfect solution, but as an alternative to what I consider to be the rather incoherent approach that the Government have adopted. The new clause seemed to me to have some merit, especially because it includes a provision allowing the status of retained EU law to be altered by statutory instrument, so the House could be done with the process quite quickly. I thought that it was a way of trying to resolve what I saw as a practical problem. Let me emphasise that it was not intended to be a weapon with which to beat Ministers on the head. I saw it merely as a sensible way of trying to take things forward, and I present it to the Committee in that spirit. It is not perfect, but represents another way in which we might approach the issue.

[Mr Leslie]

This may seem a dry and technical question, but from time to time Parliament does reflect on the nature of legislation that has been passed. We all assume that it has been accrued through Acts of Parliament or through secondary legislation, but we are now importing a third category, that of retained EU law, into our legal context, and we need to know how to treat it in the future. I do not think that the Government have addressed that question adequately, which is why I think that new clause 13 is of particular interest.

[Catherine West (Hornsey and Wood Green) (Lab)]

One of the perplexing aspects of Brexit is the lack of certainty. Many external advisers have come to see us, both in our capacity as constituency MPs and as people who are concerned about the economy and the legal picture and who are asking for certainty. The new clause would assist that process.

[Mr Leslie]

These issues are very much to do with legal clarity. They are to do with ensuring that the body of our law can operate smoothly and with stability, and that the courts can properly interpret the way in which various rights will apply in the circumstances that our individual constituents may encounter.

You were not in the Chair during the Committee stage, Mr Speaker, but you may recall that we had some discussion about aspects of the charter of fundamental rights. Amendment 4, and amendment 7 tabled by members of the Scottish National party, makes the important point that, as we heard earlier from my hon. Friend the Member for Sheffield Central (Paul Blomfield), this is not a simple “copy and paste” piece of legislation. I agree with my right hon. Friend the Member for Leeds Central (Hilary Benn): it seems very peculiar that the charter has been explicitly excluded from the carrying forward of rights. Ministers say, “Do not worry: all those matters are already covered”, or “Common law can deal with them adequately”, but I do not think that such verbal assurances are good enough, and evidence given to the Exiting the European Union Committee bears that out.

[Charlie Elphicke (Dover) (Ind)]

I read what the report said about the issue of the charter of fundamental rights, and I must say that I thought it very inconclusive. I do not think that the Committee took a strong position on either side of the debate.

[Mr Leslie]

The Select Committee consists of Members in all parts of the House. Far be it from me to interfere with the way in which my right hon. Friend the Member for Leeds Central manages—heaven knows how—to steer through a report compiled by a Committee that is not only august but enormous. Evidence was submitted, however, and I do not think that it can be swept away.

Let me remind the Committee what we are talking about when we refer to the Charter of Fundamental Rights. We are talking about rights that relate to

“dignity, the right to life, to freedom from torture, slavery, the death penalty, eugenic practices and human cloning”.

We are talking about

“freedoms, the right to liberty, personal integrity, privacy, protection of personal data”—

which will be a massive issue when it arises later in our proceedings—

“marriage, thought, religion, expression, assembly, education, work, property and asylum”.

We are talking about

“equality, the right to equality before the law, prohibition of all discrimination including on the basis of disability, age and sexual orientation, cultural, religious and linguistic diversity, the rights of children and the elderly”.

Again, some of those rights are not necessarily enshrined in primary legislation, but have accrued because of our membership of the European Union over several decades. We are talking about

“solidarity, the right to fair working conditions, protection against unjustified dismissal, and access to health care, social and housing assistance…citizens’ rights, the rights of citizens such as the right to vote in elections and to move freely, the right to good administration, to access documents and to petition Parliament”.

We are also talking about justiciable rights:

“the right to an effective remedy, a fair trial, to the presumption of innocence, the principle of legality, non-retrospectivity and double jeopardy.”

We can all point to parts of existing UK law where many of those rights may be covered adequately, but other rights—particularly those relating to children and families and to social policy—are connected very much with EU law.

[James Cleverly (Braintree) (Con)]

The catalogue of rights that the hon. Gentleman has just read out is impressive, without a shadow of a doubt. Will he concede, however, that throughout the glorious history of this place, Governments of all political persuasions have enshrined, in primary legislation and elsewhere, rights that include almost all of those? Indeed, in continental Europe, when many of those rights were being stripped down and attacked, this place had a fantastic track record of defending them both in the UK and in other parts of the world, spilling the blood of our young people in order to do so. How on earth can the hon. Gentleman think that we would strip them away?

[Mr Leslie]

No one is more proud of being a member of this fine body than I am. Parliament is a great institution: I would say that it is one of the greatest democratic institutions in the world. We are perfectly capable of dealing with many of these issues, but the hon. Gentleman unwittingly went against his own argument when he said “almost” all the rights in the charter were covered or duplicated in primary legislation. Not all of them are covered, as was made clear in some of the evidence that the Select Committee heard.

[Mr Pat McFadden (Wolverhampton South East) (Lab)]

Is there not a fundamental inconsistency here? The Government’s reason for not including the charter is that those rights are covered in domestic law, so it would not add anything, but they propose to include thousands of other directives and rules, many of which we would also be unlikely to change in domestic law. The very same argument could be applied to those thousands of other rules that the Bill goes out of its way to incorporate. The Government say, “We do not want to change the labour laws; we do not want to change the environmental rules; we do not want to change the consumer rights.” However, they apply a different logic to the charter. Why does my hon. Friend think that is?

[Mr Leslie]

The logic of the Government is a mystery sometimes, and I wonder whether the Solicitor General actually secretly agrees that these are important rights that need to be defended and that the Government have got themselves into a bit of a pickle, possibly because they drafted this Bill before the general election and therefore before they saw some of the consequences of these things.

[Peter Kyle (Hove) (Lab)]

Those of us who are gay, who went to school in the 1980s and who remember very well the impact of section 28 might baulk at the idea that every Government have given rights and not taken them away. Does my hon. Friend agree that that is a fundamental reason why we need to share and stay within the European Union and the fundamental rights system it provides?

[Mr Leslie]

My hon. Friend is absolutely right. That right of protection for freedoms and liberties on the grounds of sexual orientation is enshrined in the charter of fundamental rights. One of the examples given was civil partnerships where in the future pension rights might be divided but at the time when the partnerships took place certain UK laws were not in place; the charter provides protections against discrimination in a way that existing UK law does not.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

My hon. Friend is making a strong point and I strongly support what he is saying and Labour Front-Bench amendment 4. I accept that many Conservative Members would strongly defend the rights in the charter and other provisions we have agreed to, but does my hon. Friend agree that the public have reason to be deeply suspicious, because they hear many Conservative Members talk about a race to the bottom in regulation, particularly in employment rights, and about wanting to scrap the Human Rights Act and pull us out of the European convention on human rights? That is why keeping such rights is so crucial.

[Mr Leslie]

That is right, and my hon. Friend will also remember that, before becoming Secretary of State, the right hon. Member for Haltemprice and Howden (Mr Davis) cited many of the rights in the charter in his own legal case against the then Home Secretary, who is now the Prime Minister. The right hon. Gentleman took a case against her and cited many of the provisions in the charter; how strange it is that he now introduces a Bill that does not necessarily carry forward those provisions.

[Seema Malhotra (Feltham and Heston) (Lab/Co-op)]

My hon. Friend is making an excellent speech. Does he agree that the issue at hand is not whether those of us in this Chamber now might want to change the rights and protections we currently have, but the process by which those laws and rights could be changed and the ease and lack of accountability and transparency that could put them at risk in future?

[Mr Leslie]

I can certainly imagine cases where our constituents, feeling the need to assert some of those rights in the charter in future, find themselves falling foul of the provision in clause 5 that says, all of a sudden, that the charter of fundamental rights is not part of domestic law on or after exit day. They enjoyed those rights hitherto; where would that situation leave them?

The Government, when being sued by the tobacco companies which did not like plain packaging and thought it was against their rights of expression, cited the right to public health in the charter of fundamental rights and managed to defeat those tobacco companies. The charter of fundamental rights proved important not just for our constituents, but for the Government themselves in upholding what was a good piece of public policy at the time.

[Anna Soubry (Broxtowe) (Con)]

I think I played a small part in that, and the hon. Gentleman is absolutely right. Does he agree that all political parties are very keen to appeal to younger voters and that things such as rights really matter to young people, so it could be seen as somewhat ironic that a party that wants to get more young people to vote for it seems to be turning its back on provision for these very important rights?

[Mr Leslie]

I am sure that advice will have been heard in senior quarters. Indeed a vice-chair of the Conservative party, the hon. Member for Braintree (James Cleverly), is sitting on the row in front of the right hon. Lady. He is a very senior and eminent individual now, who has great responsibility for digging the Conservative party out of quite a deep hole.

[James Cleverly]

rose—

[Mr Leslie]

If the hon. Gentleman wants to show us his spade, I will give way to him.

[James Cleverly]

I am not trying to scrape over the point I made earlier, but I am very proud of the history of this place in enacting and protecting rights whether they are in primary legislation or not. The implication of what the hon. Gentleman is saying is that, upon our departure from the EU, unless we bind the hands of Governments of the future in some way, we can no longer trust this place to enhance and protect human rights. Can he reassure me that in no way is he implying that this place will in any way in the foreseeable future row back from its commitment to extending human rights?

[Mr Leslie]

Who knows what will happen in terms of future majorities in this place. The hon. Gentleman is still not explaining to me why this issue of all the issues should not be carried forward into legislation. He says he is in favour of almost all or all, of the rights in the charter, but we know there are examples where problems arise.

[Lady Hermon (North Down) (Ind)]

The Government boast about their protection of human rights, and of course they sign up to UN conventions on the protection of rights of women and children, but they do not then incorporate those rights into our domestic legislation, and because we have a dualist system in terms of international law the rights in UN conventions are not directly applicable in the UK. That is why it is so important that we retain the charter of fundamental rights, and that the Government give a commitment today that they will do so.

[Mr Leslie]

The hon. Lady’s legal experience speaks volumes about the issue. Simply explaining that one is in favour of these rights, having Members on the Conservative Benches say “They are all really important”, saying that in leaflets and posting them through letterboxes at elections, and having Ministers at the Dispatch Box saying, “Trust us, it’s all fine” cannot provide the solid protections that our constituents need in a court of law, whereas the charter of fundamental rights can currently do that.

[Sir Desmond Swayne (New Forest West) (Con)]

They have never been in any of my leaflets. I may be in danger of repeating myself now, but when did that ever stop anyone? The reality is that I remember sitting where the hon. Gentleman is sitting now and being told from the Dispatch Box on this side of the Chamber by his party colleague the right hon. Member for Leicester East (Keith Vaz) that the charter would never apply in the United Kingdom and indeed that it would have no more force than a copy of The Beano.

[Mr Leslie]

As it happens, since that time we have learned that the charter provides extremely important protections for many citizens. I do not think the Government would have cited it in legal actions against the tobacco companies if it were such an unimportant protection.

[Emma Reynolds (Wolverhampton North East) (Lab)]

Does not the right hon. Member for New Forest West (Sir Desmond Swayne) make our point for us? So many on the Tory Benches disregard the importance of the charter.

[Mr Leslie]

I am worried. The right hon. Member for Broxtowe (Anna Soubry) was saying to her hon. Friends, “Be careful because our constituents do care about rights.” She said in particular that younger people care about rights. They really do matter. They may not matter to them in their daily lives today, but they may matter to them or their family or relatives or the environment tomorrow. Those are all things our constituents care about.

[Charlie Elphicke]

The hon. Gentleman has been incredibly generous in taking interventions throughout his speech. When this matter was debated at the previous stage, we had a long discussion on the charter of fundamental rights and it was clear that it divides into three sections. One section is already covered by the Human Rights Act, another section will be meaningless when we leave Europe—it includes rights such as the right to petition the European Parliament—and there is a middle section where there are rights that we should look at carefully. The right way to deal with that is through a constitutional Bill in due course to reset our own rights settlement in this country for all citizens, not just for European law.

[Mr Leslie]

If that were the right way, the Government would have introduced a Bill to provide such certainty, instead of saying, “Mañana. Maybe at some point in the future we will try to close this loophole.” We have the Trade Bill now, as well as the Nuclear Safeguards Bill and a customs Bill. We are supposed to have an immigration Bill at some point, although I suspect that the Government are having a few difficulties figuring out how to bring it forward. These Bills are supposed to be the fundamental underpinnings of the copy-and-paste process that the Government are pursuing. They are supposed to be taking aspects of European Union rules and regulations and ensuring that they will still be here after March 2019, but no Bill relating to the charter of fundamental rights has been brought forward.

[Alex Chalk (Cheltenham) (Con)]

The hon. Gentleman is right about the importance of some of these rights, but may I suggest that incorporating the charter would create complete legal confusion? Under the convention, there is purely a power to make a declaration of incompatibility. Under the charter, however, UK law can actually be trumped. The extraordinary situation could arise in which, if a prohibition against slavery were breached, the courts could merely say that it was incompatible, but if there were a breach relating to data protection, UK law could be trumped. That would create confusion and chaos, which is not what we need in this country.

[Mr Leslie]

Personally, I believe that Parliament does and should value the provisions of the charter of fundamental human rights. I trust our legal system to be able to reconcile textual difficulties between different Acts. I would rather operate on the precautionary principle and have those rights covered within our law than see the protections that are offered to our constituents expunged at this point, only to unwittingly discover later that the rights we used to have under the charter are no longer provided for because the Government of the day did not want to transpose them.

While talking about rights, but in a completely different context, I want to talk about new clause 7, which has been tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas). It relates to animal sentience and the welfare of animals—not human rights but animal rights. If there is one issue that can be guaranteed to fill all our inboxes, it is the protection of animal rights. Our constituents really do care about this issue. The Government have already got into a tremendous pickle over this, and it would have been funny if it were not so tragic to see the Secretary of State for the Environment scrabbling around trying to pretend that, all of a sudden, the Government really cared about these matters.

Brexit will affect this area quite considerably. On the International Trade Committee, we heard evidence from various animal rights organisations and others involved in the agricultural trade sector, including the National Farmers Union and those involved with what are known as the sanitary and phytosanitary regulations relating to the import and export of animal products. There is a reason that the Americans dip their chickens in chlorine, Mr Speaker. I do not know whether you have had chlorinated chicken recently. I am not that fussy myself, but perhaps we will be invited to a tasting session at the new American embassy at some point. The reason they dip their chickens in chlorine is that the welfare standards that cover their abattoirs and the way in which their animals are looked after before slaughter are far worse than ours. Before the animals reach the consumer, they need to be cleaned up in a way that is not necessary here in the UK because we have higher welfare standards, not least by virtue of our membership of the European Union. Across all the European Union, we take a precautionary principle when it comes to this kind of regulation. We do not have to dip our chickens in chlorine, because they are already subject to certain health and safety standards.

Animal welfare issues matter in relation to trade as well. I find it perplexing when Conservative Members say that our salvation will be a trade deal with President Trump and the United States. We all know that the primary goal of the United States will be to have a treaty in respect of agriculture. If we do such a deal, the Americans will want to sell us animal products that have been produced under lower welfare and regulatory standards. That will be the deal they will seek. However, if the Secretary of State for the Environment says that we are going to have exactly the same regulatory standards as we have now, he will effectively be telling the Americans that there can be no trade deal. That would be the outcome—[Interruption.] It would certainly be a very big sticking point.

[Charlie Elphicke]

In Dover and Ramsgate in east Kent, we have to put up with the evil and wicked trade of live animal exports, and we have to do that because of European law. We now see an opportunity to stop that evil trade, for the sake of our communities and for animal welfare, by leaving the European Union and taking back control. Does the hon. Gentleman not welcome that?

[Mr Leslie]

There are ways of mending, improving and reforming animal safety standards within the European Union. We should be making the case to do that. We do not want to throw away the benefits that the hon. Gentleman’s constituents enjoy, such as being free from traffic jams—not all the time but on many occasions. If Dover has to institute all the necessary sanitary and phytosanitary checking and inspections, with all the warehousing arrangements and other obstacles and regulations that will be needed at the border because we have left the European Union, his constituents will be mightily annoyed by the bureaucracy that they will encounter.

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

Does the hon. Gentleman agree that, if the Government had had the political will to do this, they could have ended live animal exports by now? There are already references in the EU treaties to public morals, so they could have done it if they had had the political will to do so. Also, if the Government really want to persuade us that they care as much about animal welfare as they claim to do, why on earth would they oppose the new clause? It will simply ensure that we do not have a gap when we leave the EU and before the new Bill, if it happens, comes in?

[Mr Leslie]

The hon. Lady makes a very good point. In relation to specific issues relating to Brexit, the Government are finding, when the rubber hits the road, not only that there are potential problems such as the one relating to an American trade deal but that an awful lot of their constituents are saying, “Hang on a minute, what exactly are you doing about animal rights issues? Where will we be when we exit from these particular provisions?”

[Graham Stringer (Blackley and Broughton) (Lab)]

My hon. Friend knows that we do not agree on many issues relating to the EU, but we were both elected on the same glorious day in May 1997, and he will remember that our postbags then were full of campaigns to stop the export of live animals to Europe. The reason that that did not happen was not a lack of political will. The reason that the Labour Government, the coalition Government and the Conservative Government did not change the law is that it is a fundamental part of the treaty of Rome. That gives the lie to the argument that the EU can be reformed from inside. The treaty of Rome is not going to be reformed.

[Mr Leslie]

Treaties are reformed every time there are adaptations to them, whether it is Maastricht, Nice or Lisbon. The body of European rules and regulations is adapted and reformed all the time. It is all part of working together in co-operation. Sometimes we get our way on particular issues; sometimes we have to continue to argue our case. That is the nature of pooling some of our rules and sharing sovereignty in some respects with our wider neighbours. That is the nature of agriculture and of the environment in which we live.

[Kerry McCarthy]

It is an absolute fallacy to suggest that this Government have been dying to ban live animal exports and that it is only the EU that has held them back. I think it was Germany and the Netherlands that tried in the past few years to put a limit of eight hours, transit time on live exports. The UK went along to those negotiations and argued against those proposals. This is definitely a question of political will.

[Mr Leslie]

My hon. Friend absolutely nails the point and brings it home. She knows a great deal more about such issues than I do. The Government of the day do have a say on the rules and can sometimes effect reforms or block them.

[Mr Jenkin]

rose—

[Antoinette Sandbach (Eddisbury) (Con)]

rose—

[Mr Leslie]

I do have to conclude my speech, but I will give way to the hon. Lady first.

[Antoinette Sandbach]

I am grateful to the hon. Gentleman, but this country is a leader in animal welfare legislation, having introduced the concept of unnecessary suffering in 1915 and, in effect, the first protections for animal welfare, and we have continued that process. Indeed, this Government have reformed animal welfare and this country has high animal welfare protection standards.

[Mr Leslie]

We do have high animal welfare standards. I do not deny that there could always be improvements, but I want to retain what our constituents want, which is high standards. By leaving the European Union in this particular way, I worry that we will be forcing ourselves to chase after trade deals with other jurisdictions that have a totally different approach to regulation. The world effectively has three regulatory philosophies: the Chinese have a particular view of regulation; the European Union has a precautionary principle; and the Americans have a different cost-benefit analysis view of the world. If we depart from the precautionary principle ambit, that will affect agriculture, animal rights and many other issues. It would lead to wholly different and lower regulatory standards, which in some ways is the backdrop to this whole question.

[Stephen Doughty]

rose—

[Mr Leslie]

I will take one last intervention, but then I must conclude.

[Mr Jenkin]

rose—

[Mr Leslie]

No, I have to conclude.

[Stephen Doughty]

I thank my hon. Friend for giving way; he is being very generous. Does he recognise that people are suspicious given that, for example, the new Under-Secretary of State for Exiting the European Union, the hon. Member for Fareham (Suella Fernandes), who has just joined us in the Chamber, said that the Government were right not to copy the charter of fundamental rights into UK law because lawyers will love the extra rights that it gives? That shows the real intention behind what some Ministers want, which is to bring down the rights that have protected so many people and workers, the environment, and safety.

[Mr Leslie]

I congratulate the hon. Member for Fareham (Suella Fernandes) on her appointment, but I am very much looking forward to her speech, which will perhaps wind up one of the sections of this debate, because Parliament will want to scrutinise her views, past and present. I will conclude with that because I have taken up more than half an hour and other Members will want to contribute.

[Several hon. Members rose—]

European Union (Withdrawal) Bill

Chris Leslie Excerpts

Committee: 2nd sitting: House of Commons
Wednesday 15th November 2017 Commons Chamber

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

It is a pleasure to follow the right hon. Member for Witham (Priti Patel), who has had a busy few weeks. Brexit must not mean isolationism for the United Kingdom. The right hon. and learned Member for Beaconsfield (Mr Grieve) spoke of a global Britain and globalisation, and we have to recognise that we live in an interconnected world. The right hon. Lady did her duty and played her part at the Department for International Development, helping to save lives and foster that interconnected world. In some ways, she helped Britain and DFID play their part in pooling sovereignty with other countries, working together to make sure that we can deliver positive outcomes internationally.

It is partly in that spirit that I tabled new clause 15, which would make sure that, after Brexit, we stay informed about developments in the European Union and the European economic area. If they depart from our corpus of law and regulations, it is important that we know and are informed about it, and that we keep pace with and are aware of what they are doing. It would be to the advantage of the House of Commons and Parliament in general if we make sure that we know about any EU reforms and any ideas it develops, because ultimately there is a crucial question about our economy and its linkages with our nearest neighbours across the European Union. We cannot just pretend that we are isolated and cut off from them and that we have nothing to do with their economic progress. Our fate and theirs are integrally linked.

It is important that we should have the option of keeping pace with the EU and the EEA, for a number of reasons. We have an integrated economy and we share the EU’s warehouse inventory with regard to many of the goods that are produced and manufactured in this country. The relationship goes beyond hard economics; we have cultural ties and share other interests as well.

If there is a hard-headed economic case, it must lie in the notion of regulatory equivalence. Keeping pace with the way in which Europe develops is ultimately also in the UK’s own economic interests. If we are going to retain trading rights in full with our counterparts across the continent, I believe that the UK’s policy should be to ensure that there is regulatory alignment wherever possible.

It is often said that there are three broad regulatory paradigms in world trade today. The European paradigm effectively follows the precautionary principle when it comes to regulation. The American approach is a much more hard-headed cost-benefit analysis, which of course can often result in different regulations, and the growing regulatory approach of the Chinese is one that we might characterise as expansionist in its own particular way. I personally believe that we need to make a choice. As hon. Members, including my right hon. Friend the Member for Wolverhampton South East (Mr McFadden), have often said, this is not just a matter of negotiation; it is also about the UK having to make a choice of where we are in the world. My view is that our interests are best served by keeping pace and alignment with the precautionary principle approach to regulatory change that exists in Europe. New clause 15 would allow Parliament to stay informed about what is happening on mutual recognition agreements and the accreditation of professional services. This is a dynamic economic area and we have to recognise that we are not entirely on our own.

[Graham Stringer (Blackley and Broughton) (Lab)]

As ever, my hon. Friend makes a rational case, but can he tell me what he would do with extremely damaging and bad EU regulations? I will give him two examples: the electromagnetic field directive stops the use of the scanners in our hospitals and the clinical trials directive is so burdensome that it stops drugs coming on to the market for up to 10 years. Surely he would not want us to be aligned to those regulations, but want us to have better regulations?

[Mr Leslie]

I would want us to shape those regulations, because we are going to be affected by them. If our near neighbours—500 million residents—operate under one regulatory regime, many of our products and services will have to comply with it. It is far better that we are able to take part in the discussion and shape those regulations. In accordance with the Bill, we may leave the EU—if that does come to pass—but if we were part of the European economic area, we may still have a say on some regulatory changes. I understand the point my hon. Friend is making, but my amendment would not tie the UK to every regulatory change that takes place within the European Union; it would simply make sure that Parliament is informed when the European Union branches off and goes in a different direction. We need to know that information so that we can make a choice as laws change. If the EU takes a different route, we may want to consider doing so ourselves. We may not, but we may. That is simply the point I make in new clause 15.

New clause 55, in the name of the right hon. and learned Member for Beaconsfield, and new clause 25, in the name of my hon. Friend the Member for Bristol East (Kerry McCarthy), address the issue of retained EU laws. Over 20,000 laws and 12,000 regulations will need to be transposed in some way, shape or form. That is a massive process of change and it is still not clear whether we will convert European laws into primary legislation, secondary legislation or something else entirely. It is sensible to have a schedule that lists retained EU laws and I think the suggestions in the new clauses should be accepted.

It may be that not everything can be changed. If there are modifications via primary legislation, we might want the enhanced scrutiny procedure. When the Minister was pressed on this issue, however, he did not in any way give a proper concession to the points made by Members on both sides of the House. We could face circumstances where the EU laws to be modified affect equal pay, the treatment of workers with disabilities, or race and age discrimination. They were not part of primary or secondary UK legislation, but EU laws that we are going to co-opt. If there is to be a change to the set of rules under which we operate, we need much more clarity on whether it will involve this House of Commons doing it in an affirmative way through an enhanced procedure, or, preferably, through primary legislation.

The Minister needs to do more than just promise to look at this matter on Report, because we may not get a Report stage. We have a Committee of the whole House stage, so unless the Bill is amended there will not be a Report stage. The Minister needs to acknowledge that if we do not have a Report stage, any such assurances are not really worth that much.

[The Solicitor General]

Yes, there will be a Report stage. I can assure the hon. Gentleman of that.

[Mr Leslie]

I look forward to an amendment with an extra comma or full stop to facilitate a Report stage. It is very important that we see that.

My new clause 9 and amendment 64 relate to the EEA. As my hon. Friend the Member for Lewisham East (Heidi Alexander) said, the House should make a specific decision about whether to leave the EAA, given that that was not on the ballot paper. It is effectively the single market club, and as a member we have rights and responsibilities to one another, and not just around the freedom of movement of goods and services, people and capital. On non-tariff issues, too, the EEA ensures barrier-free relationships between the UK and the rest of the EU—on competition policy, state aid issues, consumer protection, environmental policies, research and technological development, education and training, tourism and culture and enterprise. All those issues are covered in the EEA agreement. For the Minister to say, “Oh well, it is implied that we are leaving the EEA, so it is not for the House to make a specific decision”, just will not do.

[Mr Jim Cunningham]

My hon. Friend has listed what we would like to see. Would he also include regional aid, which is very important to west midlands manufacturing industries?

[Mr Leslie]

Regional aid—and the financial side—probably has more to do with the EU, and the Government have to say how they would substitute that. All these policies are much affected by our membership of the EEA. The only things not in the EEA are many of the customs union and trade policy arrangements. If we want a smooth Brexit—a soft Brexit, we might call it—membership of the EEA is by far the better arrangement. Rather than climbing every mountain rebuilding a trade relationship with the EU, as well as reaching all the free trade agreements with the rest of the world, we could retain our membership of the EEA and with it those trading benefits with the rest of Europe, while still being free to make trade agreements with those other countries we could negotiate with. That would be a bite-size way to deal with this change and more effective than having to climb all those mountains simultaneously.

[Mr David Jones (Clwyd West) (Con)]

How could the UK continue to enjoy the trading benefits of EEA membership without being a member of the European Free Trade Association?

[Mr Leslie]

I was a member of the International Trade Select Committee in the last Parliament and recommended that we be a member of EFTA. It is certainly something to consider. It is necessary that we be a part of those alliances if we are to retain some of the trading benefits and links we have. If we want to avoid a cliff edge and a mountain of work, starting from scratch again, we have to retain our membership of the EEA and, at the very least, have a proper assessment from the Government of the costs and benefits of leaving. To do otherwise would be deeply irresponsible.

[Sir Oliver Letwin]

There is a danger in Committee that we get sidetracked into rehashing the whole of the Second Reading debate, and I certainly want to avoid that at all costs. Moreover, I have no basic problems with the structural phrasing of clauses 3 and 4, unlike clause 6, which we debated yesterday and will be discussing further anon.

I want first to put on the record what I think my hon. and learned Friend the Solicitor General, in a helpful series of exchanges with various Members, has already confirmed and then to point out one interaction with clause 6. I understood him to say that at an appropriate point, either on Report or in another place—on Report, I hope—the Government would come forward with some mixture, to be decided, of changes to Standing Orders and changes to the Bill to ensure some process for Parliament to sift, or to have sifted on its behalf and then reported to it, all the proposed amendments to existing EU legislation incorporated or saved under clauses 3 and 4, and indeed any others.

Legal aid

Chris Leslie Excerpts

Tuesday 14th December 2010 Westminster Hall

[Ms Buck]

My right hon. Friend makes a good point. It is true that legal aid practitioners who take on institutions in the public sector, and sometimes the private sector, are significantly less well paid than those professionals who make the public policy decisions that they challenge.

It is important to put on the record the fact that the previous Labour Government took decisions that bore down on legal aid expenditure. Not everyone will have agreed with those decisions—they may have challenged them—but there was a healthy debate. It must also be accepted that had Labour been re-elected, there would have been cuts in the legal aid budget. It is not the case, however, that the unfolding policy of the Labour party would have placed the pressure, which we now see emerging, on civil, family and social welfare law. Those are the areas of concern that I want to address.

It is critical to protect criminal legal aid. If it is not available at the right level and provided by quality professionals, justice will be denied. It is very important to protect a proper criminal legal aid budget. I pay tribute to Lord Bach, the former Minister with responsibility for legal aid, who looked at ways in which to bear down on exceptional costs in the criminal legal aid budget without sacrificing the principles of access to justice. I think there was consensus on that.

My concerns are about the manner in which the legal aid Green Paper attacks—and it is an attack—the legal aid budget. It bears down particularly severely on civil cases, including family and social welfare, and takes a number of areas out of the scope of aid entirely. Such areas include children and family cases in which domestic violence is not a stated factor, education, immigration where a person is not detained, clinical negligence, welfare benefits, employment, debt and some areas of housing. As a consequence, more than 500,000 people each year are less likely to receive help. Not only will that have an effect on those people unable to access legal aid services, but it will destabilise and possibly destroy such services in many areas and make it extremely hard for public services to be held to account when they are at fault.

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

My hon. Friend makes her case powerfully. The cuts are atrociously harsh on civil cases. Nottingham law centre in my constituency says that last year it helped 1,300 people avoid housing repossession. I am exceptionally worried about the impact on homelessness and the potential for people to lose their homes. This is important stuff.

[Ms Buck]

I am grateful to my hon. Friend for raising that point and I will return in a moment to the issue of housing and homelessness.

Funding for judicial review is retained within the legal aid Green Paper. However, in many cases it is not based upon the legal help that allows for an effective judicial review. I have been told that retaining judicial review but withdrawing so much legal aid is as useful as having a flight of stairs between the first and second floors of a building when there is nothing between the ground floor and the first. Judicial review emerges from a wider pool of cases and there will be inadequate tests of the law if legal aid is withdrawn.

As we know from the Green Paper, eligibility for legal aid is to be further reduced. Over recent years—this is already a trend—the proportion of the population eligible for legal aid on a sliding scale of contributions has fallen from about half of the population to about a third. The Green Paper further lowers the level at which people are asked to contribute from their assets, and increases the percentage level of contributions from earnings. Moreover, for the first time, those on social security benefits should, it is suggested, be subject to a full asset test. Will the Minister write to me and state whether the Department has calculated the cost of such an exercise? Taken together, all those measures prompt the question of whether even those who are potentially entitled to legal aid can afford to take up that entitlement, and what that will mean for access to justice.

Members of the public are being asked to insure themselves to cover future legal aid cases. However, since those who lose out are, overwhelmingly, low-income households, it is extremely unlikely that they will be able to find money for a hypothetical eventuality, rather than for the daily struggle to house, heat and feed themselves. There is nothing wrong with taking out insurance in principle—it should be encouraged—but is it realistic to ask low-income groups to insure against eventualities that are simply not as foreseeable as those risks that lead people to insure their homes and cars?

The loss of legal aid will mean that most, if not all, of the 500,000 people affected will lose access to advice and representation. That figure will include many of the most vulnerable categories of people. The legal aid consultation itself acknowledges that in respect of issues such as debt, welfare benefits and education, people with disabilities are likely to be disproportionately affected. For example, 63% of legally aided clients in the sphere of welfare benefits assistance are disabled.

The excellent briefing produced for this debate by the National Association of Citizens Advice Bureaux states that

“alternative sources of advice are simply not available, suitable or accessible for the overwhelming majority of our client group”

and

“the voluntary sector and pro bono does not have the capacity to fulfil the need currently met by Legal Aid in terms of the volume of people or the specialism required for more complex cases.”

Will the Minister say, either now or later, whether the Department has carried out a full capacity assessment to assure us that voluntary and pro bono facilities are available to fill the gap that will be created by the proposals in the Green Paper?