Withdrawal Agreement: Legal Opinion

Chuka Umunna Excerpts

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

[The Attorney General]

Yes, I do. Given what is at stake for the people of Northern Ireland and the Republic of Ireland, for the credit and faith of the European Union, which will be on the line, and for our ability to measure its performance against the detailed timetables and procedures that are now in place, I simply do not believe that we will be unable to reach any agreement with them. I repeat: it is perfectly possible to approach this in stages—to agree several agreements. We will be able to agree something over the next two or three years and the first priority, which is set out in this instrument, is the subsequent agreement replacing the backstop.

[Chuka Umunna (Streatham) (Ind)]

My preference would be an arrangement that does not necessitate a backstop. For all the words that the Attorney General has used, is it not the case that none of these things—the joint instrument, the unilateral declaration and the change to the declaration—facilitates an unconditional unilateral withdrawal by the UK from the backstop? More than that, for all the words that he has used, we will still end up paying a divorce bill of more than £50 billion, in part in return for a political declaration that has no legal force whatever. That is the key point.

[The Attorney General]

The hon. Gentleman is not right about that. Under article 184 of the withdrawal agreement, there is a legal duty on the Union and the UK to negotiate a deal that is in line, and according to, the political declaration. He asks, is there any unconditional right to withdraw? With respect, I have answered that question. The only circumstance in which there would be an unconditional right to withdraw is if there were a fundamental change of circumstances pursuant to customary international law.

European Union (Withdrawal) Act

Chuka Umunna Excerpts

Tuesday 15th January 2019 Commons Chamber

[The Attorney General]

I will give way to my right hon. Friend the Member for Broxtowe (Anna Soubry), but first I need to make some progress.

Orderly exit from the European Union would always require a withdrawal agreement along these lines. No alternative option now being canvassed in the House would not require the withdrawal agreement and now the backstop. Let us be clear: whatever solution may be fashioned if this motion and deal are defeated, this withdrawal agreement will have to return in much the same form and with much the same content. Therefore, there is no serious or credible objection that has been advanced by any party to the withdrawal agreement.

It was said last week by the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) that we should have negotiated a full customs union with a say within the political declaration and then there would have been no need for a backstop, because the agreement could then have been concluded within the transition period. However, he knows, and it is clear, that the European Union is unwilling to and regards itself as bound by its own law not to enter into detailed negotiations on the permanent relationship treaties. The EU was never going to do it, and its own negotiating guidelines said it would not, so there was always going to be this withdrawal agreement, a political declaration setting out a framework and months, if not years, thereafter of detailed negotiation on any final resting place that any political declaration might have.

[Chuka Umunna (Streatham) (Lab)]

Will the Attorney General give way?

[The Attorney General]

I will come to the hon. Gentleman in time. Let us examine the point. The question is what is the basis for the objection to the withdrawal agreement?

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[Chuka Umunna]

The Attorney General talks about the danger of setting unrealistic expectations, but it was the Prime Minister sitting next to him who promised in her Lancaster House speech that we would have agreed the future relationship before exit day. Secondly, he makes great play of this implementation period, but it is of no use in some respects if we do not know to what we are transitioning. He knows that we will have a different European Parliament, a different European Council and a different European President, and two other presidents, who will all have changed by the time that the future relationship is due to be settled.

[The Attorney General]

We must start from where we are now. It is easy to say, “We shouldn’t have started from here.” The political declaration sets out clear parameters about the future treaty. First, written into the DNA of the political declaration are two cardinal principles—

[Chuka Umunna]

But it is not a legal document.

[The Attorney General]

It is not a legal document, but no political declaration would ever be a legal document, by definition. Under EU law, we cannot have a finally negotiated text with all the legal detail.

Let me come to the two clear conditions in the political declaration—[Interruption.] I will complete in a few minutes. First, no free movement—

European Union (Withdrawal) Bill

Chuka Umunna Excerpts

Wednesday 13th June 2018 Commons Chamber

[Chuka Umunna (Streatham) (Lab)]

Does the Solicitor General accept that if we were to leave with no deal and we were trading under World Trade Organisation rules, that would necessitate a border, and that leaving with no deal is therefore inconsistent with Government policy as he has just stated it?

[The Solicitor General]

I entirely agree. The Government’s policy is to achieve a deal, because we are mindful of the points the hon. Gentleman and others understand.

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[Mr Vaizey]

It is great to have the opportunity to speak in this important debate. Yesterday’s was very entertaining and we did make a piece of fudge, and I am pleased to say that my side of the House got the biggest piece—I just want to put things beyond any doubt. Of course it was a fudge, because a lot of this is about compromise. Today’s debate is perhaps less entertaining, because we are debating far more serious issues to do with our economy, jobs and human rights.

I wish briefly to inject a slight note of reality into the debate and perhaps allow my constituents to contribute to it. I was emailed the other day by a small manufacturer based in my constituency on the subject of how it exports to the European Union. Some 60% of its manufactured goods, with an average price of about £150, go to countries in the EU. It told me that it was not necessarily worried about customs charges, but it is very worried about customs delays. Its customers in Germany and France know that if they order from this firm they get their goods in two or three days. Nevertheless, the costs are real. Its product costs 40% more for Norwegian customers than for Swedish customers, and 50% more for Swiss customers than for German customers. This company sends out 30,000 parcels a month. It is a great British employer, but the punchline is that its new distribution centre is going to be based in the EU, because of the 15% costs that are going to be added to its business by our decision to leave. The reason it has to compete is that its competitors are based not in the United States, Norway or Switzerland, but in Germany, France and Italy, and Brexit has given them an immediate advantage.

That is the reality of what we are talking about. We hear a lot of bluster. Whenever people who urge caution or realism about Brexit stand up, they are told to be optimistic and, indeed, patriotic. One prominent member of the Government compared Brexit to Y2K, which was an issue when, 18 years ago, double-digit computers were switching from the 20th century to the 21st. Apparently, Y2K was a ridiculous scare story and absolutely nothing happened. [Interruption.] This was the millennium bug; sorry, I am so old that I call it Y2K. A constituent emailed me to say that it is true that nothing happened with the millennium bug, but that was because, as he pointed out, thousands of people—he was one of them—delivered millions of lines of code, planned for it for five years and implemented the changes for two years, giving up their nights and weekends. The message to Government Front Benchers—perhaps the Foreign Secretary—is that changes of this nature are complex and difficult, and they take time and require planning. That is why the amendments we are debating are important and why a spirit of compromise and pragmatism must be injected into the debate.

To a certain extent, I am on repeat mode: I always like to have a bit about free trade deals in my Brexit speeches. We have already heard one speech saying that the EU is absolutely rubbish at free trade deals, but if we look at the large trading blocs’ free trade deals, I think it compares pretty well. It certainly compares well at the moment with the United States, which has come out of the Trans-Pacific Partnership and is bitterly renegotiating the North American Free Trade Agreement. The United States does not have a free trade deal with India or China, so we cannot really castigate the EU. The EU has free trade deals lined up with Japan and Singapore. Indeed, as the trade envoy to Vietnam, my instruction from the Department for International Trade is to secure a trade deal between the EU and Vietnam so that we can piggyback off the back of it.

As I have always said, trade deals are not easy to negotiate, but the EU can hold its head up high. We are often told that the EU holds back developing nations; it does have trade deals with developing nations and encourages them, but it quite rightly expects some give and take—for example, high labour standards, so that there is not unfair competition—and perhaps to have a voice in those countries on issues such as human rights.

I am not a dyed-in-the-wool Euro-fanatic, and I echo what my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) said when he cited Dan Hannan, because we all know that as a pragmatic Brexiteer, Dan Hannan has said repeatedly that we should try to stay in certain elements of the single market—that is in black and white. The ideology has to be stopped, and we have to look at things. That is not to say that the EU itself cannot reform. It should take Brexit as a signal of how it should be more flexible, and its legally based approach to the negotiations is unhelpful. Although I appreciate the irony of the Brexiteers who campaigned against Galileo now saying that we should have our own Galileo, for me it is an example of European Union inflexibility. The amendments are important, and I shall continue to listen to the debate. I look forward to further developments.

[Chuka Umunna]

I rise to speak in support of Lords amendments 1 and 51 on the customs union and the EEA. To be clear, I regard Brexit as rather like the hay fever from which I am currently suffering: it is consistently horrendous and there is very little that can mitigate the appalling effects. But I am absolutely clear that if we are to leave the European Union, the least worst option is for us to continue to participate in those two entities. All the evidence shows that, and many British businesses support it.

The arguments for the customs union have been well made by the Opposition Front Benchers, so I shall concentrate on the EEA. It is not the perfect model—I have never claimed otherwise—but it should be the starting point of any discussion if we say, as both main parties do, that we seek in any deal the exact same benefits as the single market. As has been said, the EU is clear—Michel Barnier said it yesterday—that we can be part of the customs union and the EEA. It is true that we would no longer have a vote on EEA rules at the EU Council; rather, we would be a rule shaper that served on the committees that draw up those rules.

Let us be honest, though: none of that really goes to the heart of where most concern about the EEA lies, which is with immigration and the continuation of some form of freedom of movement. Those are the big issues—the two elephants in the room. I am the son of an immigrant and I represent a constituency in which the majority of families are of an immigrant background, but I acknowledge that many of the communities that the Labour party represents are the opposite.

There is concern about immigration out there; we cannot duck it and we cannot ignore it. If we are honest, views are just as strong, if not stronger, in relation to non-EU immigration as they are in relation to EU immigration. There are parallels between the discontent in some of our traditional seats about EU immigration now and the discontent that there was about the Commonwealth immigration in the 1960s of which my late father was a part. There was, after all, a form of free movement from the Commonwealth until 1971, and there is now, of course, a form of EU free movement and would be if we were in the EEA. I do not deny, and I have never denied, that immigration can pose challenges, both economic and cultural, to communities, but it need not be that way if we implement the right policies.

As has been said, our former Prime Minister Gordon Brown has put forward a six-point package to address some of the concerns and better manage immigration, which includes acting to prevent the undercutting of wages by immigrants; removing newcomers after nine months if they fail to find a job; and putting in place a bigger fund to help mitigate the impact of migration on local communities. However, we need to do far more to help immigrants to integrate into their local communities, to speak English, to learn about the culture and so on. My father was so successful at that that he married an English woman and had mixed-heritage children.

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[Mr Speaker]

Let me encourage colleagues, please, to make brief interventions. There is very, very, very little time.

[Chuka Umunna]

I very much agree with the hon. Gentleman.

All the things I was talking about can be implemented now to better manage migration while we are part of the EEA, and I support them, but what are the real underlying causes of concern here? Not enough decent affordable housing; a shortage of school places; an NHS in crisis; and not enough well-paid and decent jobs. Let us not pretend that all these problems will disappear or be mitigated if we cease participating in the EEA. As hon. Members have said, they will get worse, because there will be less revenue going to the Exchequer to pay for those things.

Those underlying problems are no more the fault of European immigrants now than they were the fault of the Commonwealth citizens who came here in the 1960s and 1970s. Let us make no mistake: people in traditional Labour voting areas were saying exactly the same things about the Windrush generation, about south Asian immigration, and about the likes of my father from west Africa being the cause of our problems way back then, as they do now in respect of EU citizens. Curbing Commonwealth immigration then and ending EU free movement now did not and will not solve these problems, and we know it. That is why Labour Governments have always addressed those problems by properly funding the NHS, by having a national minimum wage, by investing in our schools and so on. That is why I will vote for the amendment tabled by my party’s Front-Bench team, and also for Lords amendment 2.

A colleague came up to me in the Tea Room yesterday. She represents a seat in the north-west and, to my surprise, she told me that she would also be voting for the Lords EEA amendment. I asked her how come she was doing that. Despite the issues and the challenges that I know that she and many of my colleagues have to deal with in respect of that issue, which I do not have to deal with in my own constituency, she said, “Yes, there are big concerns about immigration, certainly compared with your area, Chuka, but the bottom line is that we have nothing like the amount of immigration from the EU or from outside the EU as you do in your constituency. I know that the cause of our problems is not that immigration, so I will not go around saying that I agree with any claim that that is the case, because I know what that will do. It won’t help us deal with any of these problems, but what it will do is deprive people of jobs.” That is why I say to my Labour colleagues that we should not ignore this issue of immigration, but let us deal with the problems and underlying causes in a Labour way. That is what our history dictates.

European Union (Withdrawal) Bill

Chuka Umunna Excerpts

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

[Matthew Pennycook]

I am happy to be corrected on that point, but I would say to the hon. Gentleman that it is a bit rich to suggest that the many public pronouncements that have been made on employment rights over many years by so many Conservative Members have been forgotten entirely and that Conservative Members are suddenly the champions of enhanced workers’ rights. We do not believe that, which is why we need legal safeguards in the Bill.

[Chuka Umunna (Streatham) (Lab)]

rose—

[Sir William Cash]

rose—

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[John Redwood]

I am sure that it is an important protection for workers. I do not think that anybody is threatening the protections that are already incorporated into our law codes. We will have many productive debates in future about how we can raise those standards and where we should raise those standards, as we have done in the past.

The House should remember that much of this is already in British law and goes beyond the EU minimum standards; it would be very perverse to think that Parliament would then want to turn around and start taking away those standards when it had made this very conscious effort to go beyond the EU minimum standards. It also reminds us that this House has been quite capable of imposing good standards over and above the European ones and that we are not entirely dependent on the European Union to do that.

I would like to pursue the point of my right hon. Friend the Member for West Dorset by pointing out that there are consequentials from taking the approach that the Solicitor General said that the Government are considering on clause 6(4)(a). Again, I echo what has been said, which is that it is very important that clarity is given to our Supreme Court. Like my right hon. Friend, I want the ultimate arbiter of these things to be Parliament. That is what taking back control is all about. If the Supreme Court feels that it needs more parliamentary guidance, then that is exactly what we must supply either through this or subsequent legislation.

We now come to the important set of issues that various Members have raised about what should be done by primary and secondary legislation. I suggest that, at the moment, we stick to our general rules for non-EU proposals. We know that important matters deserve primary legislation and that ancillary matters, usually arising out of primary legislation, can be done by statutory instruments, usually identified in the primary legislation itself. There needs to be primary legislation cover for the use of the SI principle. Again, Parliament has a way of deciding which ones are a bit more important and so need an affirmative resolution procedure and debate, and which ones are done by the negative resolution procedure. Where the Opposition want to call in one for negative resolution, they do get a debate and a vote, because that is part of the system that we should apply.

On the proposal of my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), I say that we should not be asymmetric in our democracy. He suggested that major pieces of legislation coming from the EU that are in passage but will not be completed by the time we leave the EU should go through under some fast-track SI procedure. I think that those pieces of legislation should face exactly the same procedure that anything else faces in this House. If they are technical or relate to some major piece of legislation that has already gone through, then of course they can go through by statutory instrument if we wish to replicate the European law. If they are substantial and new, they will clearly need to go through the primary legislative process, because we have been arguing that we need more scrutiny and more debate about this important piece of legislation, which makes everything possible.

I see clauses 2 and 3, along with clause 1, as a platform. They are very much a piece of process legislation—the legislation that takes back control. In itself, it does not prevent this Parliament in future doing its job a lot better than it was able to do when quite a lot of our laws and regulations came from Court decisions over which we had no control, from regulations on which we might even have lost the vote, or in circumstances where we were not very happy about the compromise that we had to strike to avoid something worse.

This is a great time for Parliament. I hope that all Members will see that it enables them to follow their agendas and campaigns with more opportunity to get results if they are good at campaigning and at building support in Parliament. That is exactly what clauses 2 and 3 allow us to do. The legislation will allow us to go on to get rid of VAT on items or to have a fishing policy that we think works better for the United Kingdom, while, of course, protecting the many excellent protections in employment law and other fields that have been rightly identified by the Opposition. I recommend these two clauses, which I am sure will go through, and I look forward to hearing more comments from Ministers in due course about how Parliament can satisfy itself on any changes needed to make all those laws continue to work.

[Chuka Umunna]

I will speak about the new clauses tabled by Opposition Front Benchers, particularly those on employment law, and about the new clauses in the name of my hon. Friend the Member for Lewisham East (Heidi Alexander).

First, I notice that the right hon. Members for Broxtowe (Anna Soubry) and for Loughborough (Nicky Morgan), the right hon. and learned Members for Beaconsfield (Mr Grieve) and for Rushcliffe (Mr Clarke), and others are here. They have been accused of not doing right by the people simply because they have been seeking to do their job in Committee. They have been accused in different quarters of being mutineers and trying to sabotage a process, when all they have sought is to do right by this country, this House and—most importantly of all—their constituents.

We do not live in a police state. This is a not a dictatorship where the freedom of speech of individuals, both outside and in Parliament, is curtailed. The House needs to send a strong message to those outside that this democracy will not tolerate Members of Parliament being threatened in the way that was outlined by the right hon. Member for Broxtowe in her point of order earlier, because that is not in keeping with British values and how we do things in this country. There are Members who whip this up, suggesting that we are somehow running against the people when we try to do our job on this Bill. Those Members are grossly irresponsible and should think about what they are doing more carefully in the future, because we have seen the results in the national newspapers today.

[Alison McGovern]

Does my hon. Friend agree that it is about time that we all remembered that we have more in common than that which divides us?

[Chuka Umunna]

Absolutely. I could not agree more with that statement.

I turn in particular to new clauses 2 and 58, which were tabled by Opposition Front Benchers. It is important that we have more than assurances—that we actually amend the Bill—to protect some of the vital rights that are currently protected in EU law. In particular, we should protect their enhanced status. It seems from the comments made by the Solicitor General and other Government Members that we are essentially being asked to give Ministers the benefit of the doubt regarding these rights, particularly the employment law rights. We are being asked to give Ministers our confidence that they will protect these rights.

Since I joined the House, I have seen the Government—first the coalition and then the current Conservative Government—ride roughshod, unfortunately, over some of the vital employment rights that people enjoy. There was the adoption of employment tribunal fees, which were thankfully struck down by the Supreme Court. The qualification period to claim for unfair dismissal has been increased since the Conservatives have been in office, and they have sought to change the statutory duties of the Equality and Human Rights Commission. In the light of that—never mind the disgraceful Beecroft report, which was commissioned by No. 10 in a previous Parliament—it is only reasonable that Opposition Front Benchers should secure amendments to the Bill to protect the enhanced status of those employment law rights.

[Chris Stephens (Glasgow South West) (SNP)]

Is it not important that we keep laws such as the equal treatment directive, which allowed many women, particularly in the public sector, to claim equal pay from their employer?

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[Chuka Umunna]

Absolutely. I could not agree more. I referred to the Beecroft review, and one of its recommendations was to do away with equal pay audits, which only underlines the point I have been seeking to make.

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[Angus Brendan MacNeil]

Will the hon. Gentleman give way?

[Chuka Umunna]

I am going to be quick, so I will not take any more interventions.

We have talked a lot about parliamentary sovereignty, which is why it is vital that we see changes made to the Bill, but the biggest threat to national sovereignty for many countries, particularly in the advanced world, is the power of multinational corporations in an era of globalisation. I am not opposed to those organisations per se, but they do need to be properly regulated and marshalled for the common good. However, they operate across borders, and, ultimately, if we want to regulate them properly and make them work particularly for lower and middle-income families in the advanced world—of course, people’s discontent with globalisation was primarily the thing that drove them to leave the European Union—we have to do that across borders.

Being in the EEA—being part of that framework—enables us to get the system to work better for people. If there is one thing we learned from the referendum we had in 2016, it is that they want us to change the system and better marshal it to their interests. Being in the EEA and EFTA helps to enable us to do that. That is why we should be focusing on it and why we need to pass the amendment tabled by my hon. Friend the Member for Lewisham East.

[Anna Soubry]

It is a great pleasure to follow the hon. Member for Streatham (Chuka Umunna). We are co-chairs of the all-party parliamentary group on EU relations; our relationship with the EU will continue. He chairs it extremely ably. I am grateful to him for the kind comments that he made at the beginning. His analysis, as ever, was absolutely spot on. For far too long, we have had far too much rhetoric and far too many insults flowing around. We have to stop the silly things that have been said about people like me, and indeed him and other right hon. and hon. Members on both sides of the Chamber, and the constant attacks. We are told that if we have the views that we have then we are remoaners who are trying somehow to thwart the will of the people and so on. It does not help and it has not helped. History will not be kind to this place when what has happened since the referendum back in 2016 is written about.

What is really interesting as we enter day two of this debate is to see Conservative Members suddenly coming over and talking to each other. People who voted leave and were very vociferous during the campaign are coming over and talking to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) where there are clear concerns on constitutional matters and on the sovereignty of this place. Conversations are held between those of both main parties and of other parties. All these things are good. This is about healing the great divide that has occurred in our party. The fact that it is happening on this side of the Chamber as well is important.

The reason that people like me get so agitated is that one moment last night was really deeply unpleasant. Some of my right hon. and hon. Friends, when they saw the electronic copy of that newspaper, were genuinely concerned and worried because they knew that they would get the sorts of emails, tweets and Facebook postings that we have had before, and we would get all that stirring up of the old antipathy of this long-running sore that has bedevilled my party in particular. It is not acceptable when people keep perpetuating these myths. As the hon. Member for Streatham says, it fuels the flames.

If nothing else, I think we can now make progress. Let us stop the rhetoric, stop accusing people like me of wanting to thwart the will of the people and accept that we are leaving. If my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) accepts that we are leaving the EU, how many times do we have to say it before all these insults stop and we make the progress that we need to make in now delivering a Brexit that benefits everybody in this country? I support new clause 22.

Injunctions

Chuka Umunna Excerpts

Monday 23rd May 2011 Commons Chamber

[The Attorney-General]

It is our duty as parliamentarians to uphold the rule of law.

[Mr Chuka Umunna (Streatham) (Lab)]

I should like to return to the response to the question asked by my hon. Friend the Member for Middlesbrough (Sir Stuart Bell). Although it is right that we do not have a strict separation of powers in this country, we adhere to the principle to some degree as it is accepted that we write the laws and the courts interpret and apply them. In that context, does the Attorney-General agree that Members of this House should exercise extreme caution when, as we have in some senses just witnessed, they take it on themselves to breach court orders using parliamentary privilege when they are not fully apprised of all the evidence in the way that the judges who hear the cases are appraised? We have the power, after all, to change the law if we see fit.

[The Attorney-General]

Yes.