European Union (Withdrawal) Bill

David Davis Excerpts

Tuesday 12th June 2018 Commons Chamber

[The Secretary of State for Exiting the European Union (Mr David Davis)]

I beg to move, That this House disagrees with Lords amendment 110.

[Mr Speaker]

With this it will be convenient to discuss the following:

Lords amendment 128, and Government motion to disagree.

Lords amendment 37, and Government motion to disagree.

Lords amendment 39, and Government motion to disagree.

Lords amendment 125, and Government motion to disagree.

Lords amendment 19, amendment (a) thereto, Government motion to disagree, amendments (i) and (ii) to Government amendment (a) in lieu, and Government amendments (a) and (b) in lieu.

Lords amendment 52, and Government motion to disagree.

Lords amendment 10, and Government motion to disagree.

Lords amendment 43, and Government motion to disagree.

Lords amendment 45, and Government motion to disagree.

Lords amendment 20, and Government motion to disagree.

Lords amendments 11 to 14, 18, 21 to 23, 44, 47, 102 to 107, 112, 113, 115 to 119, 121 to 124, 126, 127, 130 to 134, 136 to 140, 142 to 148, 150, 152, 154, 156 to 158, 171 and 172.

[Mr Davis]

Let me start with the obiter dictum that there is a difference between eating into time and exhausting patience.

Over nine months, across both Houses, we have debated more than 1,000 non-Government amendments and hundreds of Government amendments to the Bill. Before us today are 196 Lords amendments—the outcome of hundreds of hours of debate in the other place. I beg your indulgence, Mr Speaker, in paying tribute to my ministerial team who have brought the Bill this far: my hon. Friends the Members for Wycombe (Mr Baker) and for Worcester (Mr Walker), my hon. and learned Friend the Member for South Swindon (Robert Buckland), my hon. Friend the Member for Esher and Walton (Dominic Raab) and my right hon. Friend the Member for Aylesbury (Mr Lidington); and, in the other place, Baroness Evans, the Leader of the House of Lords, and her team—Lord Callanan, Lord Keen, Baroness Goldie, Lord Duncan and Lord Bourne. I extend the same thanks to Opposition Front Benchers.

It is worth at this early point remembering that the Bill has a simple, clear purpose: to ensure that the whole United Kingdom has a functioning statute book on the day we leave the European Union. That involves the considerable task of converting 40 years of EU law into United Kingdom law. This is an unprecedented task, carried out under a strict timetable.

The Government respect the constitutional role that the House of Lords has played in scrutinising the Bill and, whenever possible, we have listened to sensible suggestions to improve it. However, when amendments seek to—or inadvertently—undermine the essential purpose of the Bill, which is to provide for a smooth and orderly exit, or the referendum result, we must reject them. For example, on the interpretation of Court of Justice of the European Union case law, we have worked closely with former Law Lords such as Lord Hope, Lord Judge, Lord Browne, Lord Neuberger and Lord Thomas to develop a solution that has genuinely improved the Bill. Our other Lords amendments represent the outcome of similarly productive discussions. The role of the House of Lords is clear: to scrutinise legislation that comes from this House, not to recast it or repurpose it. Of course, it should not undermine decisions that were put before the British people in manifestos or in referendums.

The House of Commons’ improvements to the Bill span a number of areas, ranging from narrowing the types of deficiencies that can be corrected using the delegated powers in the Bill to bolstering the rights of individuals by extending the ability to bring certain challenges under the general principles to three months after exit day. I will address in turn the main issues covered by this group on which the House of Lords has asked this House to think again but where their lordships’ approach has either undermined the essential purpose of the Bill, or attempted to overrule well-considered amendments from this House.

The first such area is the sifting system proposed in this House by my hon. Friend the Member for Broxbourne (Mr Walker), the Chairman of our Procedure Committee. The proposal was that a committee would consider instruments subject to the negative procedure that were brought forward under the main powers in the Bill, and could recommend that they be subject to the affirmative procedure instead. This unanimous recommendation of the cross-party Procedure Committee was clearly born out of careful and detailed consideration by that Committee, and the Government were happy to accept it. My hon. Friend’s amendments were agreed by this House following an extensive debate.

What we have back from the other place—Lords amendments 110 and 128—is both an imposition on our procedures by the other place and a threat to the workability of the whole process of correcting the statute book. This is for two important reasons. First, a binding recommendation following the sifting process is not a recommendation at all—it is an instruction to the Government that would mark a significant departure from established procedures for handling secondary legislation. It is equally unacceptable, as the Chair of the Procedure Committee has noted, for the opinion of a Committee of the unelected House to govern procedure in this place. The Commons Procedure Committee’s proposals have teeth. As my hon. Friend the Member for Broxbourne said in December:

“The political cost to my Front-Bench colleagues of going against a sifting committee recommendation would be significant. The committee will have to give a reason why it is in disagreement, the Minister will be summoned to explain his or her Department’s position, and it will be flagged up on the Order Paper if a particular SI has not been agreed between the sifting committee and the Government. That will result in a significant political cost”.—[Official Report, 12 December 2017; Vol. 633, c. 266.]

He was right.

Secondly, although I understand concern about the pace at which committees will be required to operate, an extra five sitting days, as the Lords propose, would risk taking the process for a negative statutory instrument into what might well be its fifth or sixth calendar week. That would seriously jeopardise our ability to deliver a functioning statute book in time. For our part, the Government are poised to do everything we can to support the speedy work of the sifting committees. On a slightly wider point, I understand that the House of Lords wants to improve the Bill in various ways. Some of its changes can individually seem sensible and proportionate when seen in isolation, but the cumulative effect of those changes could sometimes make it impossible to deliver the smooth and orderly exit we want.

I turn now to the question of exit day. After considering the issue at length, this House accepted amendments tabled by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) that set exit day in the Bill, but allowed that time to be altered in the unlikely event that the exit date under article 50 differed from that written into the Bill. That is a sensible approach. It provides certainty about our exit day, but it also incorporates the terms of article 50. Let us remember that exit day will be determined by international law rather than by this House.

We discussed this issue at length when we considered the Bill that became the European Union (Notification of Withdrawal) Act 2017. Their lordships have suggested that this House abandons the conclusions of the lengthy and considered debates that we have already had on this issue by returning the Bill in broadly the same state in which it was first introduced. I accept the helpful scrutiny of the Lords on many aspects of the Bill, but this House has already reached a sensible position, which commanded a significant majority, and we propose to adhere to this House’s original decision on this matter.

At the heart of the Bill are the delegated powers that are essential for the United Kingdom’s orderly departure from the European Union. Those powers will ensure that the statute book continues to function as we leave the European Union. As we have consistently said, we do not take the powers lightly, which was why, in addition to the changes approved by this House, we made further amendments in the Lords. When using the principal powers in the Bill, Ministers must now give their good reasons for the changes they are making, exactly as the Lords Constitution Committee recommended. We have introduced further safeguards by preventing the powers in the Bill from being used to establish public authorities. We have also removed the international obligations power from the Bill entirely, as it has become clear that there are better and more effective ways to ensure that the Government’s international obligations continue to be met than through the use of that power.

That means that the approach before us is substantially different from what we first introduced, while still protecting the core purpose of the Bill. This reflects the fact that the Government have listened to the views of Parliament throughout the Bill’s passage, but we cannot accept Lords amendments 10, 43 and 45, which replace “appropriate” as a reason for using the powers to “necessary”. This House has accepted the premise of the Government’s approach to delivering a functioning statute book—specifically, that we will preserve and incorporate EU law, and then make the appropriate corrections via secondary legislation. Given the scale of the task and the speed necessary, that could never have been done through primary legislation, but at every turn we have sought to ensure proper parliamentary scrutiny.

Given that that fundamental premise has been supported, there needs to be sufficient flexibility for Ministers to propose changes that might not be strictly considered necessary, but that everyone here would think appropriate. “Necessary” is not a synonym for sensible, logical or proper; it means something that it is essential to do.

[Joanna Cherry (Edinburgh South West) (SNP)]

Does the Secretary of State recall that on page 21 of the original White Paper on the great repeal Bill, the Government pledged to make changes to retained EU law by delegated legislation only “where necessary”? Does he accept that if this House does not accept the Lords amendments, the Government will be breaking the pledge that they made in their original White Paper?

[Mr Davis]

With great respect, the hon. and learned Lady is a lawyer, and she knows that the words in an Act of Parliament matter, and matter very precisely, rather more than an individual word—[Interruption.] They matter very precisely. Let me explain why.

As I said, “necessary” is not a synonym for sensible, logical or proper. In many cases, changes such as correcting inconsistencies, changing terminology, removing redundant provisions, or improving clarity and accessibility could be left unmade, even if the consequences were perverse. That is not the best outcome for businesses or individuals across the United Kingdom. I do not believe that their lordships intended to constrain our ability to change the names of documents such as European aviation documentation. Nor do I think that they intended to require us to use cumbersome terms such as “national regulatory authorities of member states”, and then to have to designate our national regulators underneath that. That would be an inefficient way of making Ofcom the regulator for our open-access internet legislation, for example. This will be UK law, applied only in the UK. It would be confusing to businesses and individuals to keep laws that suggest otherwise, but such changes, while appropriate, might fail the “necessary” test.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I understand the point that my right hon. Friend is making, but I have to say that I am not sure that I agree with him. I think that all the examples that he has given would meet the necessity test without any difficulty at all. Where the necessity test provides a higher bar is that if it were thought that a Minister was using powers to change legislation in a way that was not necessary, he would be prevented from doing so. My right hon. Friend cites examples, but I just do not think that the test would be a problem for a Minister at all.

[Mr Davis]

My right hon. and learned Friend, as I have known for a long time, is a very good lawyer, but I am afraid that other lawyers disagree quite seriously.

The Lords amendments effectively increase the risk of judicial review. What that does—[Interruption]. This is an incredibly serious point, because that process asks judges to make a policy decision that this House should be making by saying yes or no to a statutory instrument. It really is as simple as that.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I am rather sorry that my right hon. Friend is so distrustful of judges on what are essentially procedural or constitutional matters, but could he define “appropriate” to me? It is one of those vague words that I suspect means “if the Minister feels that he or she wants to, one way or the other”. A decision could almost certainly not be challenged by judicial review, because the word is so wide and vague that there is no conceivable argument that could be raised to challenge the Minister’s opinion. We cannot take powers in that way meaning that the Government are able to legislate on matters that will be important to some individuals entirely at a Minister’s uncontrolled discretion.

[Mr Davis]

I hear my right hon. and learned Friend—and old friend, because we are still capable of having a dinner for two hours and not talking about Europe throughout it; in fact he paid, and it was lunch.

The simple fact is that we are not just leaving this to a single word. As I said earlier, the House of Lords Constitution Committee looked at the matter, in the context of this Bill and the sanctions Bill, and said that we should require the Minister to give “good reasons”—that was the test—which is what we have proposed in our amendment.

[Ms Angela Eagle (Wallasey) (Lab)]

Will the right hon. Gentleman give way?

[Mr Davis]

If the hon. Lady will forgive me, I will make a little progress, because I am quite sure that my next section will provoke quite a lot more interventions than the last one.

Let me turn to Lords amendment 19 and parliamentary approval of the outcome of the negotiations. This is the Hailsham amendment, which Lord Bilimoria described in the other House as the “no Brexit” amendment. What it amounts to is an unconstitutional shift that risks undermining our negotiations with the European Union. It enables Parliament to dictate to the Government their course of action in international negotiations. [Interruption.] Labour Members ask what is wrong with that. Well, I will read them a quote from Professor Vernon Bogdanor, who is not exactly a well-known leaver, but he is a constitutional expert. He described this at the weekend as “a constitutional absurdity” that

“would weaken the position of Britain’s negotiators.”

I agree with him that this is not practical, not desirable and not appropriate.

[Chuka Umunna (Streatham) (Lab)]

rose—

[Mr Davis]

I give way to the hon. Gentleman who has campaigned long on this issue.

[Chuka Umunna]

I am very grateful to the Secretary of State for giving way. What the Lords amendment seeks to do is to reassert parliamentary sovereignty such that this House approves and gets to vote on every scenario that can be conceived of in terms of the way that we withdraw from the European Union. On the Secretary of State’s amendment, may I ask him a factual question? I am not asking him whether or not he thinks we will be in a situation where there is no deal. I am simply asking him this: is it not the case that his amendment to Lords amendment 19 gives his Government a passport to take this country out of the European Union with no deal, with this House having had no say on it whatsoever?

[Mr Davis]

I start by saying to the hon. Gentleman that I respect his point of view. He has the honesty to say that he would like us to stay in the European Union irrespective of the referendum result. Although I disagree with it, it is honest position to take. But what he describes as giving the Government the right to take us out of the European Union under, frankly, any circumstances was article 50, which was passed by this House and the other House by a very large majority, so I am afraid that he is not right in that respect.

[Wes Streeting (Ilford North) (Lab)]

rose—

[Mr Davis]

I will give way in a moment.

It is accepted practice that Governments negotiate treaties, and this was the case for the European Communities Act 1972, the Lisbon treaty, the Nice treaty, the Amsterdam treaty and the Maastricht treaty. I do not remember any argument over Parliament undertaking those treaties from people who today argue that this amendment is appropriate.

[Frank Field (Birkenhead) (Lab)]

rose—

[Mr Davis]

I give way to the right hon. Gentleman. I do hope the Whip’s Office was not responsible for his injury.

[Frank Field]

I hope that our Whip’s Office is kinder than the Government’s Whip’s Office will be in getting this measure through.

Mr Speaker, I hope to catch your eye in a moment to talk about what the effects on the Labour vote will be in those constituencies that voted to leave, but on this crucial issue, is it not true that if we pass what the Lords want us to do, we, as Aneurin Bevan said, will be sending our negotiators back naked into the negotiating room? The European Union will know that the Government are beaten and that it can then impose any terms whatsoever on them.

[Mr Davis]

The right hon. Gentleman makes a very good point. It is certainly the case that the European Commission reads every newspaper in Britain, particularly the Financial Times and The Times. It reads them all, but, more surprisingly, it believes them. The simple truth is that it looks at any option that it thinks the British political system will throw up, which will allow it to get a negotiating advantage. Let us remember, too, that most, if not all, of the 27 would much rather that we did not leave—full stop. If it sees an opportunity to create that outcome, that is what it will do.

[Wes Streeting]

rose—

[Mr Davis]

I want to make a little progress, and then I will give way again.

Furthermore, the Lords amendment sets deadlines that would simply allow the other side to use time against us, as it has already tried to do. What we have proposed in lieu is an amendment that builds on commitments that I first set out to the House in a statement on 13 December last year. The amendment provides that the withdrawal agreement cannot be ratified unless both the agreement and the future framework have been approved by a motion of this House. It also prevents the agreement from being ratified unless an Act of Parliament has been passed to implement it. This is all before the Constitutional Reform and Governance Act 2010 as well. Therefore, this is in addition to the Government’s commitment to introduce the withdrawal agreement and implementation Bill if Parliament votes in favour of a final deal.

[Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)]

I am very grateful to the right hon. Gentleman for giving way. It is not clear what the choices are on a meaningful vote. Is a meaningful vote going to be between the deal that might be struck with the European Union on the current status quo, or a deal struck with the European Union and the World Trade Organisation? We need to know that.

[Mr Davis]

People keep using the phrase “meaningful vote”. What it conceals in some cases, and I suspect that that is the case for the hon. Gentleman, is that they want to reverse the result of the referendum, and nothing we do will be organised to allow reversal of the result of the referendum.

[Stephen Hammond (Wimbledon) (Con)]

Will my right hon. Friend give way?

[Mr Davis]

I will give way in a moment.

The Government have also made provisions to allow the vote to happen in this House before the European Parliament votes on the deal, as long as it is practical. This follows the spirit of the Lords amendment, but our proposal has some significant differences. First, we have attached a deadline to the Lords’ consideration of a motion on the final deal. It is not right that the Lords could have a veto on the deal simply by filibustering or refusing to consider the motion. Anyone who suggests that this is unlikely should consider that it was a concern raised by their lordships’ themselves in debate.

[Stephen Gethins (North East Fife) (SNP)]

Will the right hon. Gentleman give way?

[Mr Davis]

Not for the moment, no.

Secondly, we have removed Parliament’s power to give binding negotiating directions to the Government. As I have said, this would represent a profound constitutional shift in terms of which branch of the state holds the right to act in the international sphere. I turn again to Vernon Bogdanor, who said:

“Parliament’s role is to scrutinise legislation and policy; 650 MPs, still less 800 peers, cannot themselves negotiate.”

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

rose—

[Mr Davis]

I will give way in a moment.

Instead, we have provided that, in the event that Parliament rejects the deal put to it, the Government will be legally obliged to make a statement on their proposed next steps in relation to article 50 negotiations within 28 days of that rejection. This House would of course then have plenty of tools at its disposal to respond, but I am as confident as ever that we will secure an agreement that this House will want to support.

[Stephen Hammond]

I think that everybody in this House would accept my right hon. Friend’s proposition that we cannot bind the negotiations, but clearly the point of concern, which he is getting to now, is this: if there were no deal, does the amendment in lieu cover that circumstance? If it does not, how does he propose to deal with that?

[Mr Davis]

If there were no deal for some reason other than the House rejecting it—it is incredibly, almost implausibly, unlikely, but let us imagine that the Government decided that they would not have a deal at all—we would of course do the same thing and come back and make a statement to the House, and the House would then have the right to respond.

[Mr Grieve]

I am grateful to my right hon. Friend for giving way. I recognise some of the problems that he has and why the Government came forward with their amendment in lieu, and some of the deficiencies that can be identified in the Lords amendment. But the simple fact is that the Government have not made provision for no deal, and there is a way of doing it. The amendment that I have tabled provides a mechanism for doing that. One of the key issues for me at the end of this afternoon will be whether we make some progress on having a proper structure to address no deal. I do not think that this Bill can finish its course and get Royal Assent until we have that.

[Mr Davis]

I thank my right hon. and learned Friend for his view on this. He sort of expressed it in an amendment that he tabled late last night, so I only saw it this morning. I have not really had a lot of time—[Interruption.] Well, this is an interesting demonstration of the Labour party’s perception of how easy it is to make constitutional law on the fly. Its own voters will come to a view on that.

Let me say this with respect to my right hon. and learned Friend’s proposed amendment—as he knows, I am always open to have a conversation with him on this although he seems to have fallen foul of my telephone security system—I always want to keep three principles in mind. First, we must never do anything that undermines the Government’s negotiating position, or encourages delays in the negotiations. That is very, very important. Secondly, we cannot change the fundamental constitutional structure, which makes the Government responsible for international relations and international treaties.

[Sir Edward Leigh (Gainsborough) (Con)]

Will my right hon. Friend allow me?

[Mr Davis]

In a moment.

We cannot do that. This constitutional structure has stood for hundreds of years and many thousands of treaties. As I said earlier, nobody suggested for a moment that the House of Commons should negotiate the Maastricht treaty, the Lisbon treaty, or one or two other controversial treaties that came before the House. We cannot change that structure now, on this basis.

[Wes Streeting]

Will the Secretary of State give way?

[Mr Davis]

Not for the moment.

Thirdly, we must—under all circumstances—respect the result of the referendum. That is what this House voted for when it voted on article 50. I am very happy to talk to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) again in the next day or two, and we can discuss how we can meet his concerns in that time, within those principles.

[Sir Edward Leigh]

Is not the kernel of the problem that all the amendments tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and others make no deal more likely, because they give every incentive to the European Commission not to agree to a deal? The amendments would bind the Government and we would end up with the worst possible result. Therefore, they should be resisted.

[Mr Davis]

My hon. Friend goes to the heart of the problem, which is that we have to consider that anything passed in this House and the other House will have a very serious effect on the negotiating strategy of the other side. I hope that this House will recognise that the Government have taken a fair and positive approach to the new clause, retaining those elements that are sensible and viable, while removing those elements that are practically and constitutionally untenable. These constitutional and practical concerns also apply to Lords amendment 20, on a mandate for negotiations on the future relationship. The Government cannot demonstrate the flexibility necessary for a successful negotiation if their hands are tied mid-way through that process. That will do nothing but guarantee a bad deal for Britain. It is for the Government to set the direction during the negotiation. That is the key point.

I do not need to remind the House about the importance of this legislation. The purpose of this Bill is to maintain a functioning and effective statute book when leaving the European Union—a statute book that people and business can rely on. That is what our approach will deliver.

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

May I start by paying tribute to their lordships for the diligent and considered manner in which they so thoroughly scrutinised the Bill? In particular, I pay tribute to Labour colleagues in the other place for the extensive effort they put into securing many of the cross-party amendments that we are debating today.

This Bill began life as a fundamentally flawed piece of legislation. Many of its original flaws stem, I suspect, from the fact that at the time it was being drafted, the Government had yet to fully work through precisely how withdrawal would have to take place. Indeed, some of us still remember the Secretary of State’s glib dismissal of the need for any transitional arrangements after 29 March next year, and the misplaced magnanimity with which he made it clear that he would only consider granting transitional arrangements to “be kind” to the EU. But as with so many aspects of the Brexit process—even if not yet in every respect—reality has slowly caught up with the Government, just as the very real deficiencies in this Bill have now been subject to thorough scrutiny in the other place.

If anything has vindicated the Opposition’s decision to vote against this legislation on Second Reading, it is the succession of defeats that the Bill has faced in both Houses, as well as the scores of amendments that the Government themselves have had to table. That said, after successive defeats in the other place and the latest round of concessions from Ministers, some of the worst aspects of the Bill have been ameliorated.

As we only have three hours of debate on the first group of amendments, I intend to touch only briefly on most of the Lords amendments towards the end of my remarks, and focus instead on what we believe to be the critical issue in this first group. That is the issue of what form parliamentary approval of the withdrawal agreement should take. Many of the amendments passed in the other place are of great significance in terms of their constitutional implications and how they might shape what is left of the Brexit process. It is deeply disappointing that the programme motion only allocates 12 hours to debate them.