European Union (Withdrawal) Bill

Dominic Grieve Excerpts

Tuesday 12th June 2018 Commons Chamber

[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.

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[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.

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[Mr Speaker]

Order. The right hon. Member for Twickenham (Sir Vince Cable) cannot give way; he has concluded his oration. We await the thoughts of the hon. Member for North West Norfolk (Sir Henry Bellingham) at a later stage, perhaps.

[Mr Grieve]

I was amused to discover that my right hon. Friend the Secretary of State was a little taken aback by the amendment I tabled late last night. I tabled it with his best interests at heart. Having spent last week understanding that he might imminently be joining me on the Back Benches and realising that Lords amendment 19, if endorsed by the Commons, might precipitate the same thing again, I thought I ought to do what I could to help him. That is why I tabled my amendment, in addition to the one he has tabled, in lieu of the Lords amendment.

I must tell the House that I really am worried: the irrationality of the debate on the detail of Brexit is truly chilling. A person opens their newspaper and discovers they are about to prevent Brexit, when what the House is doing is legitimately looking at the detail of one of the most complex legal and political exercises in which we have ever engaged in peacetime, and, as a result, our ability to have a rational debate entirely evaporates. If we continue in this way, we will make mistakes and not achieve the best possible outcome.

The House of Lords was not acting irrationally when it agreed amendment 19. It had picked up on something that ought to be of great concern to everybody in this House—namely, that although we can make provision for achieving a deal, if we do not achieve a deal at all, we will be facing an immense crisis. It might be that some of my colleagues on the Government Benches are excited at this prospect and think it a wonderful moment, but I am not; I think it will be catastrophic. The question, therefore, is: how do we take sensible steps, in anticipation of this, to try to ensure a coherent process for dealing with it? That is what this is about. It is not about obstructing Brexit.

If we want to obstruct Brexit, there are plenty of other ways to do it. We could replace the Government with one that would like to stop it, although, having already triggered article 50, we would still have to get the consent of our EU partners. There is, then, a complete constitutional incoherence in imagining that the Bill and the way it is presented somehow leads to that dastardly outcome.

[Mr Jacob Rees-Mogg]

My concern about my right hon. and learned Friend’s amendment is that it would change the constitutional balance and separation of powers. There is a perfectly reasonable way of ensuring that the Government do the proper thing, and that is a vote of no confidence. As long as the Government maintain the confidence of this House, they ought to be able to negotiate international treaties, but if they fail in their negotiations, the House has a remedy that has been a remedy for very many years.

[Mr Grieve]

I take my hon. Friend’s point, but I would like him to consider for one moment the last part of my amendment, new section 5C, which deals with what happens if, on 15 February 2019, we have no deal. His invitation would be for the House to express no confidence in the Government and to get rid of them. Can one imagine a more chaotic process than the triggering of a general election five weeks before we fall off the edge of the cliff?

[Justine Greening (Putney) (Con)]

I agree with what my right hon. and learned Friend is saying. I think that, far from suggesting that his amendment was wrong, my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) gave the very reason why it is sensible to adopt this structural process to deal with the different scenarios that the House may face.

[Mr Grieve]

I agree entirely with my right hon. Friend. Let me explain. I did take on board the Government’s concerns regarding the Lords amendment, but I could see that the micro-management of their negotiating position after the autumn, if there were no deal, could present difficulties. My amendment sought to avoid that by doing two things. First, it sought to provide a mechanism whereby no deal, if there is no deal, must come to this House. That would provide great reassurance to all Members that there was a system in place to deal with the position. Similarly, there would be a system in place to deal with the rejection of a deal, and finally—and only then would there be a mandatory condition —a system that would operate if by February we were still faced with an impossible position of having no deal at all.

[The Solicitor General (Robert Buckland)]

Of course I accept that my right hon. and learned Friend and other colleagues wish to discuss further the role that Parliament will play in all the Brexit scenarios that may present themselves to us. We cannot bind the negotiations, nor can we disrespect the referendum result, but—as my right hon. Friend the Secretary of State said in his speech—we do commit ourselves to meeting to see how we can build on Her Majesty’s Government’s amendment (a) in lieu today, ahead of the Bill’s stages in the House of Lords, and to meeting my right hon. and learned Friend tomorrow to make that important progress on what we have achieved today.

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[Mr Grieve]

I take my hon. and learned Friend’s comments at face value, and I am most grateful to him for making them. He must understand, however, that, as usual when we reach this stage of a process, we face some difficult challenges. There is a Lords amendment, and if we agree to it, that is what will go into the Bill. Alternatively, we may endorse the Government’s approach and support the amendment in lieu. The Government could, I think, adopt my amendment; it is a rather arcane procedure, but they could include it. If they do not want to do that, however, I shall need some pretty cast-iron assurances that when the Bill returns to the Lords, with the Government’s amendment in lieu, we will implement significant parts of what I have put forward, because we cannot allow a situation in which there is no mechanism for dealing with no deal.

[The Solicitor General]

Overnight, I read my right hon. and learned Friend’s amendment (ii) to Government amendment (a) very carefully, and I think that there is much merit in the approach that he urges the House to adopt in subsection (5A). I need more time to think about the other parts of the amendment—[Interruption] —but by indicating my position on a key part of it, I am indicating that the Government are willing to engage positively ahead of the Lords stages.

[Mr Grieve]

Again, I am very grateful to my hon. and learned Friend, and let me say to the House that I do not think his views should be dismissed. I am conscious that if we are to make progress, we ought to try to do this by consensus. However, my hon. and learned Friend must also understand—as my right hon. Friend the Secretary of State must understand—the difficulty in which the House finds itself when faced with a choice of this kind. I have been through the same process in opposition and now in government. If the House makes the concession of allowing the dialogue to continue—and I can see the merit in that—it must be done in good faith. Let me say to my hon. and learned Friend that without that good faith, the other place will put the amendment back in, and the good will will be gone when the Bill comes back to this House.

[The Solicitor General]

I can give my right hon. and learned Friend that assurance. Everything that I do with him and other colleagues is always in good faith, and that will remain the case.

[Mr Grieve]

I am grateful to my hon. and learned Friend. I was glad to hear what he said about the principle—which, in my view, is entirely innocuous—that

“Within seven days of a statement under subsection (4) being laid, a Minister of the Crown must move a motion in the House of Commons to seek approval of the Government’s approach.”

That is not exactly rocket science. The second principle is that there must be a mechanism providing for a Minister to come to the House of Commons by a suitable date—and I think 30 November 2018 must be the one—in the event of no deal, so that the Government can tell the House how they intend to proceed and seek the approval of the House for that.

I know that subsection (5C) causes my hon. and learned Friend much more difficulty. I understand the constitutional issue, and I will come to that before I finish my speech; but the reality is that without a mechanism whereby the House can properly shape the crisis that will be enfolding us at the end of February if we have no deal, we will do it in an ad hoc way, which is likely to be infinitely more damaging to the wellbeing of the citizens of the United Kingdom than putting together a package that can be looked at now.

[The Solicitor General]

As usual, I am listening very carefully to my right hon. and learned Friend’s observations. They will form a clear basis for a formal set of discussions that we can start at the earliest opportunity ahead of the Lords—

[The Solicitor General]

Of course, Mr Speaker. I was about to give a clear undertaking to use my right hon. and learned Friend’s comments as the basis for structured discussions ahead of the Lords stages. [Interruption.]

[Mr Grieve]

I am grateful to my hon. and learned Friend. Obviously, the House will have to make up its mind about how it wishes to proceed, but, as I have said, there must be a proper understanding of the disquiet that is felt on both sides of the House.

[Chris Bryant (Rhondda) (Lab)]

I know that the Solicitor General has spoken in good faith, but would it not be best for those discussions to take place in a forthright way, for us to vote with their lordships for their lordships’ amendment and for the Government to return to the matter in the House of Lords after the discussions?

[Mr Grieve]

I fear not. I think the reality is that if we accept the Lords amendment, that will be the end of the matter. That is the problem that we face in this House.

[Mr Kenneth Clarke]

Both my right hon. and learned Friend and I accept without hesitation the good will of our hon. and learned Friend the Solicitor General, who is doing his best to resolve the slightly odd situation that we are all in. I think that the majority of Ministers—although I do not know about my hon. and learned Friend—would give my right hon. and learned Friend the undertaking for which he is asking now, and that the majority of our party would be quite happy with an arrangement of the sort proposed in his amendment. However, all we can have is what we had in Committee—offers of good faith, discussions and earnest attempts—because our proposals will be vetoed by the hard-line Brexiteers in the Government.

[Mr Grieve]

I am grateful to my right hon. and learned Friend. I think that we will hear more about that as the debate unfolds.

[Sir William Cash]

Will the hon. Gentleman give way?

[Mr Grieve]

No. I am sorry.

Let me end by saying this. The idea that it is wrong, in a crisis, for Parliament to direct the Government what to do is plainly fallacious. It cannot be right. We are entitled to do that. Of course, if the Government do not want to do what we direct them to do, that is another matter.

[Several hon. Members rose—]

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[Mr Grieve]

We have to be realistic, and there is an issue here. If the Government wanted to accept the entirety of the amendment, that could probably be done this afternoon and that would be the amendment that went back to the Lords, incorporated in theirs. In fairness to the Government, I have always appreciated that there might be some tweaking to be done. I understand that. Having said that, does the hon. Gentleman agree that there needs to be some certainty that the substance of this amendment will come with the acceptance of the Government in the other place?

[Mr Leslie]

That is right, and a bird in the hand is worth two in the bush. I suggest that it is far better to have that amendment in the Bill as it goes to the other place, which may decide to tweak or change it following discussions. That seems to reflect what feels like the majority view in the Chamber today on the need for a sense of certainty that something will be done. This is not just a matter of one Minister, because a Minister’s word can be given and then changed—