European Union (Withdrawal) Bill

Dominic Grieve Excerpts

Wednesday 13th June 2018 Commons Chamber

[Keir Starmer]

It is a significant amendment, and it was also a significant amendment in the Lords. Even as amended—taking it back to being closer to the wording of the phase 1 agreement—the amendment is still a very significant measure.

[Mr Dominic Grieve (Beaconsfield) (Con)]

It also goes further than that, does it not? Not only will we have to stay in a form of customs arrangement amounting to a union, but we will also have to have a high level of regulatory alignment. Otherwise, the life that takes place along the border will be impossible because of different regulations on either side.

[Keir Starmer]

I agree, and I will develop that argument, because a customs union alone will not solve the conundrum of how to keep to the solemn commitment to having no hard border in Northern Ireland.

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[Mr Grieve]

The right hon. and learned Gentleman is making a very powerful case. I can tell him that Government Members should also be concerned about this matter. I am sure he agrees that it is perfectly possible to carry out Brexit—without incorporating the charter of fundamental rights, which I know is a subject of difficulty—while at the same time securing these rights through this perfectly sensible amendment.

[Keir Starmer]

I am grateful for that intervention. I would have thought that this is not controversial. The Prime Minister said that she did not want to reduce these rights, and we take her at her word, but if the Government convert them into a form in which they lose their protection, they make them vulnerable. I would have thought that any Government who want to change these rights would have the decency to do that through primary legislation so that this House can carry out the proper scrutiny process. It is very straightforward.

I now turn the charter of fundamental rights. Through the Bill, thousands of EU provisions are being converted into our law—only one is not being converted. All the others can be converted, changed, modified or brought into our law in some shape or form, but the charter apparently cannot be converted, and that is wrong in principle.

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[The Solicitor General]

It is a pleasure to rise in this debate to set out the Government’s stance on these important amendments. The right hon. and learned Member for Holborn and St Pancras (Keir Starmer) was properly concerned about the effluxion of time. I share that concern; there is a lot to go over, and I will do my very best to cover all the amendments before us and, of course, to take interventions, as I always strive to do.

May I first echo the opening remarks made yesterday by my right hon. Friend the Secretary of State, who talked about the important role of the other place as a revising Chamber? There is no doubt that in some instances the other place has made some constructive improvements to the Bill, which the Government have every reason to support. However, on other matters, which were debated at length and agreed to by this elected House, the other place chose to ignore decisions that were taken here. Instead, we have a set of amendments that, I am afraid, are not properly thought through and would have a negative impact on our plan for a smooth and orderly exit.

We heard from the right hon. and learned Member for Holborn and St Pancras that the Opposition do not accept Lords amendment 51, which seeks to make continued participation in the EEA a negotiating objective for the Government. Well, we are sure about his position, but we are not so sure about that of certain other Opposition Members. However, on this issue, we are certainly in broad agreement.

This country is party to the EEA agreement by virtue of its membership of the EU. After the implementation period ends, that agreement will no longer apply to the UK. Seeking to participate in the EEA agreement beyond that period does not pass our test—that our future partnership with the EU must respect the referendum result. It does not deliver the control over our laws, and indeed other aspects of our domestic policy, that we seek. On borders, it would mean that we would have to continue to accept all four freedoms of the single market, including the free movement of people.

[Mr Grieve]

May I just pick my hon. and learned Friend up on his point about law? We are signed up to thousands of treaties in international law that bind us, and including on international tribunals. Membership of the EEA does not require any direct effect of that law in this country, so I fail to see how, on that point, the Government can be right. It is perfectly plain that we can be a member of the EEA without any direct effect from the European Court of Justice.

[The Solicitor General]

I am sorry, but with respect to my right hon. and learned Friend, I do not agree. He knows that the EEA is a creation that came after what were the European Communities. As I will go on to explain, we have significant concerns about what will happen not just to the EEA as it stands now, but with the inevitable development of EU rules, which will mean that we have little say. The issue of being law takers rather than lawmakers is particularly important to me.

[Mr Grieve]

Will the Solicitor General give way?

[The Solicitor General]

No, I will not give way.

I made that point during the long debates in the referendum campaign. As a dedicated and fervent remainer, I said that when we leave the EU, it means we leave the whole shebang—there is no cherry-picking when it comes to not only the attitude of the UK but, importantly, the position of our negotiating partners.

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[The Solicitor General]

I had better not. I have to move on, I am afraid, and I have taken an intervention from my hon. Friend already.

I want to deal with the charter of fundamental rights, which was mentioned by the right hon. and learned Member for Holborn and St Pancras. We continue to strongly believe that it would not be right to retain rights of action based on incompatibility with the charter or the general principles of EU law after we have left. To keep these in our domestic law, as Lords amendments 5 and 53 seek, would undermine two crucial principles. First, it is not consistent with the proper restoration of parliamentary sovereignty if legislation, including primary legislation, can continue to be disapplied or quashed by the courts on the basis of elements of the EU legal system intrinsically linked to our membership and obligations.

I will deal right away with the comparison made with the Bill’s treatment of the principle of the supremacy of EU law. It is not a comparison that I accept. I would draw a clear distinction between the need to maintain, in a strictly limited sense, a rule that has been central to the hierarchy and interpretation of our statute book for over 40 years and the charter itself.

The latter document came into effect in 2009. It was expressly intended only to reaffirm rights that exist elsewhere, as protocol 30—signed up to by the United Kingdom and Poland—made clear. Suddenly to remove the principle of supremacy would have significant and unintended consequences and would be likely to result in a confused and incoherent statute book. It would merely introduce more uncertainty to the law’s meaning and effect.

[Mr Grieve]

Has my hon. and learned Friend not just highlighted the problem himself? Supremacy carries with it implications that the law, by its very nature, can override other laws. The reason why the general principles of EU law existed before they were incorporated in the charter was a wish to ensure in part that such laws could not apply abusively; yet we are keeping the supremacy and removing the mechanism by which the abuse can, in exceptional cases, by challenged. That seems a very strange thing for a country that wants to enhance its freedoms to do.

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[The Solicitor General]

With respect to the hon. Lady, I must press on.

I am concerned that some people—including no less than the former Attorney General, Lord Goldsmith—seem almost to be contradicting themselves 10 years on. Lord Goldsmith, who was the Attorney General, made his position absolutely clear to Parliament:

“The United Kingdom’s position, like my position, has always been that the charter affirms existing rights, it does not create any new justiciable rights in any member state and does not extend the power of the courts.”—[Official Report, House of Lords, 9 June 2008; Vol. 702, c. 427.]

It was not the noble Lord but, I think, the right hon. Member for Leicester East (Keith Vaz) who described the charter as having no more significance than a copy of The Beano. I simply ask: what has changed? For that reason, I do not accept that the rights contained in the charter will add anything to the rights of individuals in our country. Equally, I do not accept that rights saved by the Bill will not be justiciable if general principles challenges are excluded. Other sources of rights will continue to exist and operate in UK law.

None the less, we have listened to the concerns that have been raised, particularly in relation to accrued rights. We want to get the balance right. When we last debated the matter here, I agreed to a change that delayed the prohibition of certain rights of challenge on general principles grounds, when the cause of action arose before exit day, for three months after exit. This week, we tabled an amendment in lieu that goes considerably further. It delays that prohibition for three years, subject, of course, to the normal statutory limitation periods, which will continue to apply.

[Mr Grieve]

Having had a gentle dig at my hon. and learned Friend a moment ago, I now thank him, because I know that it was his personal intervention which at least secured that. It is a great improvement, and I think it will be greatly valued. It is likely to apply in very few cases, but it provides a higher level of support.

[The Solicitor General]

I am grateful to my right hon. and learned Friend. I have listened to representations from him and from other Conservative Members on the issue. I believe that we have now struck a reasonable and fair compromise between the concerns and arguments raised by Members in all parts of the House, and I urge Members to support the Government’s amendment.

It is the Government’s ambition to leave our environment in a better state than that in which we found it. That is what we owe to our children and our grandchildren, and that is why the Prime Minister said in January:

“We will use the opportunity Brexit provides to strengthen and enhance our environmental protections—not to weaken them”.

On 10 May, my right hon. Friend the Secretary of State for Environment, Food and Rural Affairs launched a consultation on the development of a new independent statutory body to safeguard the environment alongside approaches to embed EU environmental principles in our own domestic law. However, the Government have listened to concerns raised in both Houses that certainty is required more quickly, and we recognise the intentions behind the amendments tabled.

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[The Solicitor General]

I cannot give way, because I really must press on.

We are committed to proper scrutiny and engagement with Parliament and the public on our corrections to EU law and future changes. In addition to all the changes we have already made to the Bill, there will be a presumption in favour of engagement or consultation where it is proportionate and sensible to do so. Of course, Departments will consult where there is a statutory duty to do so. Departments across Whitehall have already undertaken engagement or consultation with stakeholders for active discussions on areas where that has been proportionate and sensible, and that will only increase.

Most of those who have supported Lords amendment 4 are well intentioned, but some must have known that it would have hugely detrimental effects on how we could deliver a functioning statute book ahead of our exit and in the future. Instead of protecting the law in the crucial areas of employment, equality, health, consumer standards and environmental protection, it would weaken it. By calling this amendment “enhanced protection”, some are seeking to hide a great danger.

By limiting the changes that delegated powers could make to retained EU law relating to the specified policy areas to only those that are deemed technical, the amendment would fundamentally limit our ability to properly correct deficiencies. That risks dramatically increasing the amount of primary legislation that needs to be enacted ahead of our exit, putting more pressure on this place ahead of Brexit. Even the changes deemed to be “technical” enough to be achieved through delegated powers would still face a lengthy enhanced scrutiny process, which the Lords could force to be as long as the 18 months required for legislative and regulatory reform orders. In other words, our statute book could not be made ready for exit by 29 March 2019.

[Mr Grieve]

I note and understand the points made by my hon. and learned Friend, but the intention behind the amendment was not to create difficulty for the Government, but to find an easier way of providing enhanced protection for areas of law. That suggests that the Government should have come back with an amendment in lieu.

[The Solicitor General]

I hear my right hon. and learned Friend. Both he and I have had anxious discussions about the definitions within the amendment. We are seeking to allow protections to be carried forward through our existing framework, so that the sort of changes that need to be made can apply to a whole range of areas. Changes could relate to the trade in seal products—cruelty to seals—or to protecting people on offshore oil and gas installations from fire and explosions, which is in the working time regulations, or to the protection of the marine environment. We need that element of flexibility.

That is not a way of avoiding the procedures of the House; it is about making the law clear, certain and usable to protect all the different categories that we are dealing with. I am worried that we would be kneecapped, not just as a Government, but as a Parliament. There is a lot of work to be done ahead of Brexit, and we need to concentrate on what is fundamental and what will involve change. Lords amendment 4 fundamentally affects how we can do that, so we must oppose it.

My right hon. Friend the Secretary of State for Exiting the European Union left the House in no doubt yesterday of the importance of this legislation. The Government listened in the other place and showed flexibility by tabling amendments that genuinely improved the Bill, but we rightly held firm on those areas where amendments proposed would have an adverse effect. I am somewhat downhearted that the House of Lords has not shown the same level of respect that we show to them and has sought to overturn decisions taken here on important issues relating to the protection of rights. I therefore ask the House to stand behind the Government tonight in ensuring that this legislation is fit for purpose, respects the referendum result, and respects the constitutional role of this House.

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[Mr Speaker]

Order. For a short period there will be a 10-minute limit, but I emphasise that it will be short. I call Mr Dominic Grieve.

[Mr Grieve]

Thank you, Mr Speaker. I shall be brief, because I am endeavouring during the course of this afternoon to finalise agreement with the Government concerning matters we debated yesterday, so I have every incentive to be out of the Chamber. However, I would not wish to leave without pausing for a moment to deal with two issues—one of a rather more specific nature, and one of a wider nature, which has already been touched on by the right hon. Member for Leeds Central (Hilary Benn) and my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke).

Let me start with the specific matter. We have had a very interesting debate during the passage of this Bill about what we do with retained EU law and human rights. We have felt our way through this, and at the end of his speech my hon. and learned Friend the Solicitor General made some sensible points about the difficulties around the charter of fundamental rights. I do accept that it sits uneasily with a situation in which we bring laws back to this country, although I highlighted to him the inconsistency of having retained EU law without having general principles potentially to override it, because it itself can override other of our domestic laws. That was the justification for it, and I regret that we are not going to keep it, but I welcome the fact that we are at least going to keep it for three years. To that extent, we have made a little progress; I am genuinely grateful to my hon. and learned Friend, and I will accept that.

That still, however, leaves amendment 4—that of Baroness Hayter in the other place—which sought to provide some enhanced protection for certain areas of EU law. These are areas of EU law that I think many Members of this House would recognise as being of special significance, including

“employment entitlements, rights and protection”

and

“equality entitlements, rights and protection”—

something that has featured more and more in our jurisprudence. In the recent case, for example, of Benkharbouche, a lady was discriminated against in an employment setting within an embassy and succeeded, by going to the Supreme Court, in setting aside our existing laws on diplomatic immunity, because they in fact went beyond what was required under the Vienna convention. Those are real areas of progress for our legal system.

Those things will be lost without the charter and the general principles. The worry is that, while I certainly do not think my right hon. and hon. Friends want to diminish areas of equality, employment, health and safety law or consumer standards—we have covered environmental protection, interestingly enough—they have given no protective status whatever to those areas. At some point, the House will have to come back to this and consider whether we should amend the Human Rights Act 1998, which we could do, to do this in a way compatible with our parliamentary tradition and our parliamentary sovereignty. Until we do that, they do not enjoy protection.

Baroness Hayter’s amendment would at least give them this protection: that they could be altered only by primary legislation or by subordinate legislation, which would have to be subject to an enhanced scrutiny procedure to be established by regulations made by the Secretary of State. My hon. and learned Friend the Solicitor General will say that that is massively unwieldy, but actually it is not. All we need is to have a set of regulations that distinguish between technical amendments, which can go through just like that, or other amendments, which would have to be dealt with in a more enhanced form. The flexibility, therefore, is in fact there in the amendment and I do not think it is as unwieldy as the Government suggest. I am afraid that the truth is that, for reasons of their own, the Government just do not want to go down this road. We discussed and debated it at great length in Committee, and although we received delightful and repeated assurances that there was an understanding that these were areas of law that really matter, I am afraid that we did not succeed in getting any further.

I am afraid, because I do not like to have to rebel against the Government line, that I will vote for amendment 4 to retain those protections, when the Government seek to remove them. It is as simple as that. It is, perhaps, a gesture, but it is a gesture designed to put down a marker to say that we cannot ignore this issue for the future. We have pretty consistently ignored them, with the one great exception of what my hon. and learned Friend secured over the three years on the general principles. Respectfully, I will differ from the Government’s approach.

The second issue, which was touched on with great eloquence by the right hon. Member for Leeds Central and my right hon. and learned Friend the Member for Rushcliffe, concerns our future relationship structure with the EU, encapsulated in the EEA Lords amendment, the amendment tabled by those on the Labour Front Bench, and, to an extent, the amendment relating to the customs union or a customs union or a customs arrangement.

Mr Speaker, I do despair. I listen over and over again—every time I stand up in this place, I receive streams of emails—to angry people insisting that the sovereignty of this country is linked to the single issue of being free of the jurisdiction of the European Court of Justice, free of any form of customs union, and free, above all, to keep people we do not like out. That is all very well, and of course one can do those things, but the first thing that completely ignores is the fact that we are subject to myriad international laws, which we observe to the letter—because we are a rule-of-law state—quite cheerfully, and which greatly enhance our commerce, peace and security. We do it all the time because that is the way the world works in a globalised environment, but we have got ourselves so angry and so fixated that we cannot see the wood for the trees anymore.

The consequence of that, which I thought was beautifully put by the right hon. Member for Leeds Central, is that we are careering off trying to do a deal on leaving the EU which entirely ignores the reality of the relationship we have. We have been discussing Ireland’s role. We have dealt with the Irish border issue very well and I am pleased with that. I hesitate to say this here, but I remember once going to Dublin and a very nice Irish economist with the Irish Government said, “Of course, we may not like it here, but the reality is that the subzone we operate in is the British economic zone and it dictates how we operate.” That is of course why we have a common travel area. Similarly, we are—for all our 65 million people, being the fifth largest economy in the world and all the other things we like to trot out, and our pride in our nation state—part of the European economic zone. That is where we trade and where our commerce goes, and although I would love it if we could enhance it, trade elsewhere and encourage the EU to trade elsewhere, that will never be a substitute for where we are.

[George Freeman (Mid Norfolk) (Con)]

I have a lot of sympathy with the points that my right hon. and learned Friend is making, and indeed those that the right hon. Member for Leeds Central (Hilary Benn) made earlier about the EMA, but will he not agree that the purpose of the Bill is to give effect to the continuity of the law at the moment? We have a Trade and a customs Bill coming after the summit. Is that not where these issues should substantively be addressed? In my view, these are mischievous amendments dealing with substantive issues with which I have a lot of sympathy, but this is the wrong Bill to give effect to them.

[Mr Grieve]

My hon. Friend makes a very good point, and I understand it—it is a feature of this place that we sometimes debate and vote on issues that are peripheral to the main point—but there comes a point when one has to stand up and be counted. If it is not this week, it has to be next week, and the truth is I am really anxious for my constituents and anxious about our general direction of travel. I respect the decision in the referendum, but we are closing off options as to how we conduct future relationships, in ways that are utterly damaging to ourselves. In a sense, some of our debates yesterday, and the negotiation I am going to conduct—successfully, I hope—in a moment, are all linked to these fixations, and the consequences for us are really damaging. Yes, of course, the EEA amendment is rather flawed, but it has the merit, unlike Labour’s “motherhood and apple pie” amendment, which I cannot possibly support because it is motherhood and apple pie, of at least having some bite, and today is the day I shall be voting for it.

[Yvette Cooper]

I will start with Lords amendment 24 and the point I raised when the Solicitor General was speaking. This is not a remain or a leave issue. This is not a party political issue. He will have heard the support from both sides of the House for simply continuing with the family reunion arrangements for child refugees that we have right now. I am unable to put my amendment to the vote, because of Standing Orders and the ludicrous programme motion, but I think if I did it would command majority support across the House. It would help a very small number of some of the most vulnerable child refugees, so I urge the Minister to look again at that amendment, simply to continue with the existing arrangements. Whatever arguments we have on both sides of the House about Brexit structures and options, surely we should be able to come together with a humanitarian agreement not to allow Brexit to turn the clock back on this vital help for child refugees.