European Union (Withdrawal)

Debate between Dominic Grieve and Jacob Rees-Mogg

Tuesday 3rd September 2019 Commons Chamber

[Mr Rees-Mogg]

I must confess that I am surprised by my right hon. and learned Friend’s astonishment because I have been making the case for WTO rules for some time. It has been a sensible way to proceed and will allow us to carry on trading as we do with many other countries.

[Mr Dominic Grieve (Beaconsfield) (Con)]

My right hon. Friend says that the House’s role is one of scrutiny, and I agree, yet does he not see that there is an incompatibility between that scrutiny and in fact taking steps through Prorogation to deprive us of the effective opportunity to carry it out? When considering that, he may also agree with me that so much in this House depends on trust. How can we have trust when there have already been a number of examples of the Government’s making inaccurate statements, such as, first, that the papers prepared for its Yellowhammer briefing were the product of a previous Administration when they were not; and secondly, and perhaps most pertinently, when it appears that the facts as stated by the Government as to the reasons for Prorogation have turned out to be entirely inaccurate and are now causing the Government considerable difficulties over their duty of candour in litigation? When he aggregates all that together, perhaps my right hon. Friend might begin to understand why many of us have finally decided that this House must take action.

[Mr Rees-Mogg]

My right hon. and learned Friend is very learned but his learning does not always lead him in the right direction. The Prorogation is completely routine. When I was first—and, indeed, last—at this Dispatch Box, Opposition Front Benchers were asking for the Session to be brought to an end. We were merely being our obliging selves in leading forth to a new Queen’s Speech in the general course of events.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and Jacob Rees-Mogg

Tuesday 12th June 2018 Commons Chamber

[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?

European Union (Withdrawal) Bill

Debate between Dominic Grieve and Jacob Rees-Mogg

Committee: 8th sitting: House of Commons
Wednesday 20th December 2017 Commons Chamber

[Mr Rees-Mogg]

My hon. Friend puts the point beautifully. That is actually the historical and traditional job of Back-Bench Members of Parliament. We should be here to protect the interests of our constituents and the interests of the constitution, and to hold the Government—of whichever party—to account.

That is why I am in such agreement with my right hon. and learned Friend the Member for Beaconsfield about the undesirability of Henry VIII powers. However, I said I would diverge from him at some point. The point on which I diverge from him is the perhaps slightly academic one about where we have started from. I think it is inconsistent to say that Henry VIII powers exercised by the British Government, subject to the normal parliamentary procedures of this House and another place, are worrying, but that the Henry VIII powers used under the European Communities Act 1972 were not.

[Mr Grieve]

My hon. Friend makes a perfectly reasonable point, and there is an argument that this House should not concede Henry VIII powers without very good reason indeed. I suggest that the difference is that the 1972 Act carried the clear implication that this was a necessity in order to meet our international obligations. The question I have asked this afternoon is whether these powers are required to meet some domestic necessity. My hon. Friends on the Front Bench may be able to reassure me that they are, but as the powers are so extensive, it is right that we should question them.

[Mr Rees-Mogg]

It is always right that we should question such powers. That issue was about meeting our international obligations, but we volunteered to take on those international obligations by treaty without allowing the House to have the final say on the regulations that would come in. A political decision was made for the convenience of the then Government to do this in such a way to get that treaty agreed, but that was just as much a power grab from this House as what is currently proposed. Indeed, to my mind, it was a very much greater power grab because of the way in which laws in the European Union are introduced. The key is not co-decision making, which we have heard about—that is marginal, and came in at a later stage—but the fact that the right to present a new law rests with the Commission, which is the least democratic part of the European Union.

One of the glories of this House is that any right hon. or hon. Member may at any point, after the first few weeks of a new Session, go up to the Public Bill Office and seek to bring in a new Bill. The right of initiation of legislation lies with all of us, not just people who win the lottery or have ten-minute rule Bills. It lies not just with the Government; any right hon. or hon. Member has that right. It is such an important part of our ability to represent our constituents and to seek redress of grievance. The highest form of redress of grievance is an Act of Parliament; interestingly, Acts of Parliament emerged at the beginning of the 14th century from the presentation of petitions to this House that Members then turned into Acts. This is at the heart of our democratic system, but it was immediately denied by the basis on which laws are introduced within the European Commission.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and Jacob Rees-Mogg

Committee: 7th sitting: House of Commons
Wednesday 13th December 2017 Commons Chamber

[Mr Grieve]

I agree with the hon. Gentleman. I hope that I will be able to develop some of those points in a moment.

As was rightly said by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), the Government had a notion when this debate started that it was possible to pull out of the European Union by use of the royal prerogative. Fortunately, time, common sense, debate and a small amount of judicial intervention has pointed out that that is not possible. As a consequence, my hon. Friends on the Treasury Bench have correctly begun to understand that in fact there has to be a proper process. I appreciate the points that have been made about a meaningful vote and how we can actually get that in the context of Brexit; it is a real, live issue. Nevertheless, I greatly welcome the written ministerial statement, which sets out what appears to be a constitutionally tenable process for Parliament approving or considering the deal by motion, and then moving on to implement the deal by primary legislation.

Of course, the Government know that they must proceed by primary legislation because, in view of the comments during the Miller case, it is blindingly apparent that there must be a serious risk of legal uncertainty if anything other than a statute were to be used to take us out of the EU at the end. That is the last thing that my right hon. Friends on the Treasury Bench should want, because that will cause even more trouble and difficulty than they already have in the challenges they have to face.

[Mr Rees-Mogg]

I hope that my right hon. and learned Friend will forgive me if I appear pedantic, but does not this Bill and the enactment of article 50 take us out of the European Union at the end, whereas the withdrawal agreement and implementation Bill legislate for the consequences?

[Mr Grieve]

Yes. If, indeed, we were leaving with nothing further to do, that might be a good point. But it seems to be a pretty universal view, even on the Government Benches—although this perhaps does not apply to my hon. Friend—that simply leaving to jump off the top of the tower block is not the best thing to do. Therefore, there will need to be primary legislation to implement the undoubted new constitutional order that we will have after 29 March 2019.

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[Mr Grieve]

The hon. Gentleman makes a good point.

Ultimately, the centre of this point is that we are being asked to give the Government a power that can be exercised on something, but we do not know what that something is. Logically, the moment to make the statutory instruments to enact our withdrawal would come when we have this further statute—whatever it happens to be called—and have debated it in this House. We will then have structured the powers conferred by statutory instrument to achieve what Parliament wants and thinks is necessary to carry out withdrawal. That is the point, and pre-empting matters in this fashion is odd. Indeed, it is so odd that I heard one Minister—I will not reveal who—informally saying that they questioned whether the clause 9 power was in fact still needed, in view of how the Government were progressing this matter.

[Mr Rees-Mogg]

Will my right hon. and learned Friend give way?

[Mr Grieve]

In a moment.

On my key issue and what I was trying to tease out in tabling amendment 7, I could, I suppose, have simply said that I will not support clause 9. Indeed, if my amendment is not accepted, I am afraid I shall be voting against clause 9 this evening—I have no option—but rather than do that, the purpose of my amendment is to try to explore what it is that the Government want clause 9 to do that, in fact, we should not be doing when we enact the legislation at the end.

It is for the Government, in those circumstances, to explain themselves; it is not for Parliament simply to roll over and accept something because the Government say that that is what we should do. Indeed, if we all get told that we must support the Government out of loyalty because to do otherwise would undermine the Prime Minister—I think that is cuckoo, for the reasons given by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper)—we need to know why.

Last week, I engaged in a whole series of dialogues with the Government, trying to understand what was bothering them. At one point, I thought we might be getting to the point where we would reach an agreement that some power might be needed in the Bill before we came to the final Bill, although I will come back to that in a moment. It started to dawn on me that one possibility was that this power might be exercisable, but only provided it could not be used to bring anything into force—we might lay some statutory instruments, but they could not be brought into force in any way until the end statute had been passed.

That is where I thought we might be—and then everything closed down, and I am none the wiser why the Government need this power, except that I note that a journalist who seemed to have been speaking to a briefing was told it might be required to effect the registration of EU citizens. I thought to myself, “I thought we were going to have an immigration Act to do that.” So I am still at this moment—this afternoon—absolutely at sea about why this power is needed. If the Government cannot make a case for this power, it should not be here.

Even at this stage, I say to my right hon. and hon. Friends on the Treasury Bench, if they accept this amendment, which is absolutely central and necessary to ensuring that a power of this scope cannot be abused in a way that the House should not tolerate, and if they want to come back on Report and tidy it up because there is some adjustment or some caveat they want to put in, I will of course listen to what they want to say—my job is not to make their lives more difficult—but I am not prepared to sign away such an extensive power, when it appears to be contrary to the Government’s stated policy on how Brexit will be carried out and, in fact, surrenders without any good reason the control of this House over how the Government conduct Brexit.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and Jacob Rees-Mogg

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Mr Grieve]

No, I do not think it will create uncertainty, any more than the Human Rights Act has created uncertainty. I have to say to my hon. Friend that I do not think that that is an issue. However, as I say, I do accept that it will take time to draft and debate these things, and it is not in this current forum that we will be able to achieve that.

[Mr Rees-Mogg]

On the point my right hon. and learned Friend is making, I think I am in complete agreement with him. It is right for this place to consider, debate and legislate on these issues, because this is the right forum for doing that, rather than by implementing a whole slew of rights, which would then be entirely in the hands of the courts.

[Mr Grieve]

Yes, and there we are in agreement. It is inevitable and regrettable that we face this situation, but that is why simply to convert the charter, which, in any case, has lots in it that is unconvertible, and to say that it should maintain entrenched rights, seems to me, in the light of what we are debating in the context of Brexit, to be an impossibility. That is not something that commends itself to me.

Let me now move to a slightly narrower issue. We have to accept that, in the course of what we are doing, we are going through a complex period of transition. Forget about the transitional arrangements we may be negotiating with our EU partners—the truth is that we are creating a whole category of transitional law. By the concept of retained EU law, we are doing some very strange things indeed with our ordinary legal principles.

Clause 5(2) allows EU law to have priority over domestic law in certain circumstances. In fact, it allows for the possibility of UK law enacted prior to exit day being quashed for incompatibility with EU law that is retained on exit day. I simply make the point that, leaving aside our EU membership, which of course will have ceased, this is an utterly unique development in our legal system—it has never happened before. We are about to create a species of domestic or semi-domestic law—I would not quite describe it as feral law—which will have the unique quality of being able to override our own laws. Clause 6(3) will also allow CJEU judgments given before exit day to be binding, but not on our Supreme Court—a matter that my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) and I have been worrying about quite a lot in the course of the passage of this legislation.

So although the CJEU will rightly lose jurisdiction, it and EU law will keep a special status. However, that is intended to be only temporary, although how temporary is speculative, and I of course note clause 5(3), which says that this law can be modified and still retain this special status, as long as the modification, I assume, is not so dramatic or drastic that it is made explicit that it should lose it. That is different from replacement. That, I suspect, is because the Government know very well that this situation may continue for decades to come.

Yet, in the middle of that, the charter is removed. Leaving aside the other issues concerning the charter, which I have touched on, and which I do not want to go back over, that creates an unusual circumstance. EU law was always intended to be purposive, and one of the purposes is to give effect to the fundamental principles under which the EU is supposed to operate. Yet we are removing the benchmark under which this law is supposed to operate, because the charter will no longer be there, although, interestingly—I think this is an acknowledgment by the Government of the problem they have—they have then, in the next clauses, essentially allowed the charter and general principles of EU law to continue to be used for the purposes of interpretation.

It is very unclear how all this, in practice, is going to work out. That is why I tabled my two principal amendments. Amendment 8 would allow the retention of the charter. It provides an easy route to ensuring that this legal framework is retained, but for the reasons we have just been debating, there are serious issues surrounding it, which is why I think it is probably wrong to pursue it.

However, there is then the question in schedule 1 of what we do with general principles of EU law. What they are is totally undefined, but I assume—I have to assume—that if the Government are content to articulate the existence of general principles, they have done enough research to establish to their own satisfaction that general principles do exist—they are the result of court judgments interpreting the law and, indeed, the fundamental principles in the charter, but not the ones that are going to disappear on the day we leave.

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[Mr Grieve]

I understand my hon. Friend’s point. However, the purpose of this Bill, as I understand it, is to put together a package that enables a smooth transition from our presence within the European Union to our presence outside of it. That, of necessity, requires adjustments to the purity of his thinking about parliamentary sovereignty, which the Government have been required to acknowledge in the way that they have drafted this Bill. In those circumstances, it does not seem to be pushing the boundaries very much further, nor should it be seen as some treasonable article, for us to consider whether the general principles of EU law ought not to be capable of being invoked when they are probably the very thing that has, over the years, prevented the EU from turning into an even worse tyranny, as my hon. Friend would see it. [Interruption.] Well, I have to say, having listened to him, that that is usually the impression that has come across. He sees it as tyrannical because it is not moderated by the doctrine of our parliamentary sovereignty. I simply make that point; I do not wish to labour it.

[Mr Rees-Mogg]

Is there not an important change once we have left the European Union in that the European Court of Justice would not accept the jurisdiction of the European Court of Human Rights because it would not accept that a higher court could intervene in any of its rulings? It therefore needed protections within its own system that within our system are provided by the European Court of Human Rights and the application of that in domestic law.

[Mr Grieve]

My hon. Friend makes an interesting point. I slightly question the extent to which we have had clear evidence of that, although I know that there has been a reluctance on the part of the European Court of Justice to accept any higher authority, despite the intention of the parties that it should become subordinate, ultimately, to the ECHR. He is right that one reason why the charter came into being was to secure compliance. I think it is rather more of a hypothetical than an actual state of affairs, although such a problem might exist in future. In any event, I do not think we are dealing here just with matters covered by the ECHR, for the very reasons that were discussed earlier in relation to new clause 16, which was tabled by the hon. Member for Nottingham East. I simply say to my right hon. and hon. Friends that the issue has to be addressed.

As I said earlier, I recognise that my amendment is not as good as it might be, and could be improved on. If the Government can give me an assurance that is adequate and goes beyond vagueness, I will be content not to press amendment 10 a vote. The issue is not going to go away, however, and when one is in this sort of dialogue with the Government, one does not want to be soft-soaped off. If that happens, there will be a road crash when we come to Report, in which I will be unable to support the Government on a whole series of matters. I hope that those things can be resolved by consensus.

I have spoken for quite long enough, but I have explained why I think that, on the important issue that we are debating today, the best solution in the interim is to use something along the lines of amendment 10 to ensure that general principles of EU law can continue to be invoked. Of course, as the transition goes on, I assume that so much EU law may disappear, but I venture the suggestion that it will continue to be relevant for some time to come.

May I, finally, touch briefly on the three other amendments —297, 298 and 299—that I have tabled? They are very simple, and they concern the use in clause 5 of the words

“any enactment or rule of law”.

I simply say that nobody I have spoken to understands why the words “rule of law” appear in the Bill. Ultimately, a rule of law is a rule of the common law; and in so far as a rule of the common law is displaced by statute, that rule will be displaced, of itself, by the courts. It does not require to be spelled out in legislation. I draw some comfort, on that, from the fact that a very distinguished lawyer who previously worked in this building shares my view that the inclusion of those words is incomprehensible. I do not think that that is a matter that I would necessarily put to the vote, if I was required to do so, but I hope that the Government might be able to provide a positive response on it. I am grateful to the Committee for listening.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and Jacob Rees-Mogg

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

[Mr Grieve]

I understand that that is why my hon. Friend thinks we should go. As he knows, I personally think that in the globalised world in which we operate, as we mentioned yesterday, the notion that the only source of law is likely to be the domestic Parliament of one’s country is rather fanciful, given that we are currently subordinate or have signed up cheerfully to all sorts of areas of international law without any difficulty at all. I accept, without wishing to go over old ground, that the way in which EU law operates in this country through its direct effect does pose some issues that have particularly exercised my hon. Friend the Member for Stone. Nevertheless, the idea that all sources of law in this country come from this House is wrong, full stop.

The question is how we make sure that in bringing this law into our own law, we preserve its essence—because that is what the Government say they want to do—until such time as we as a domestic Parliament decide that we want to do something about it. The problem that has arisen is that, as currently drafted, the importation of EU law means that standards in areas such as equalities and the environment will no longer enjoy the legal protection that EU membership gives them—indeed, they will, for the most part, be repealable by statutory instrument.

On the whole in this House, we would not think it appropriate to do that with our own primary legislation, and this legislation is undoubtedly important enough to have primary status. That is because clauses 2 to 4 on retaining most EU-derived law are worded in such a way as to turn it principally into secondary legislation in United Kingdom law.

[Mr Rees-Mogg]

There seems to be an inconsistency in what my right hon. and learned Friend is saying. He has been happy for law to come into this country and become our senior law having been approved by a qualified majority vote in which the British Government may have voted against, but he would object to its being repealed through a statutory instrument subject to a parliamentary process in this House and the other place.

[Mr Grieve]

I fully appreciate that my hon. Friend has a great distaste for the way in which this law has been imported into our country during the course of our membership of the EU. However, two wrongs do not make a right. He could profitably look at the prolonged period of time it is going to take to replace all this law—five years, 10 years, 20 years, 30 years? I would be prepared to have a small wager with him that some of this is still going to be around in three or four decades to come.

The Government's Plan for Brexit

Debate between Dominic Grieve and Jacob Rees-Mogg

Wednesday 7th December 2016 Commons Chamber

[Mr Grieve]

It depends on whether we were seeking to limit the mandate in carrying out amendments. As I have not seen what the Government are proposing by way of primary legislation, I have no idea to what extent it might or might not be amendable, but it certainly would not have crossed my mind that one of the sorts of amendments I should produce would involve creating justiciable targets. I think my right hon. Friend knows me well enough from my time as a Law Officer to know that my views about declaratory legislation and targets are probably fairly unprintable—and certainly unutterable in this Chamber—and I do not recommend it to anybody.

On the question of where we are going after that and considering the issues around Brexit, I simply point out that some of the things said, even today by Government Members who I respect, seem to me to be rather fanciful. We have heard a lot about the sovereignty issue requiring us to withdraw from the European Court of Justice. I have to gently point out that if we are going to stay within the mechanisms of justice and security, which the Secretary of State said he believed was in the national interest, although our withdrawal from the EU will mean we will no longer be subject to the direct effect of the ECJ, decisions of the ECJ on interpreting the treaty will continue potentially to have force on us in this country. That is not surprising because we are signed up to over 800 international treaties which have arbitral mechanisms for resolving disputes.

So unless we start getting out of this fantasy element about Europe as a pariah entity, we are not going to start getting down to a realistic assessment of what it is in our national interest to remain adherent to and what it is in our national interest to withdraw from, even though we will be outside the EU and therefore not subject, for example, to direct effect at all.

[Mr Rees-Mogg]

My right hon. and learned Friend’s last point is exactly the point: if we have left the EU, judgments of the ECJ will have the same effect as judgments of the WTO arbitration court. They will not be automatically law of this land and will be subject to Parliament, which is a fundamental change.

[Mr Grieve]

It is indeed a fundamental change, and I am delighted my hon. Friend is pleased and that appeals to him, but I have to say this from listening to some of the things said this afternoon: the logic of what my right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith) in particular was saying was that we would have to withdraw from all the 800 treaties that were subject to any arbitral mechanism because they undermined our sovereignty. This is the kind of issue in debate we have got to start to sort out, because the public out there expect us at least to have some degree of expertise about what we are actually trying to do, and to go and explain it against the background, as I said earlier, of vitriolic abuse against anybody who is prepared to raise their voice to put forward any argument that appears to be counter to the fantastical vision some have created out of our leaving the EU.

Another example is the situation with regard to the WTO. I may be wrong but I think joining, or rejoining, the WTO requires a negotiation with 163 countries, including an agreement with the EU.

Scotland Bill

Debate between Dominic Grieve and Jacob Rees-Mogg

Monday 6th July 2015 Commons Chamber

[Mr Rees-Mogg]

The hon. Gentleman has been more helpful to me than he may have realised. I think that the symbolic importance of this division is that it is symbolic of independence for Scotland rather than further devolution. I think that the indivisibility of the Crown in one nation is such that the Crown Estate ought not to be divided.

[Mr Dominic Grieve (Beaconsfield) (Con)]

My hon. Friend is clearly right. The Act of Union created the Crown of the United Kingdom of Great Britain, and therefore, in so far as the Crown Estate is concerned—

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[Mr Grieve]

The Union of the Crowns happened 100 years before, but in my view it is clear that the constitutional union came about as a result of the Act of Union, and that therefore the Crown Estate is indeed indivisible. The fact that it may be subject to a different jurisdictional framework in Scotland is neither here nor there, and to that extent the example of Canada or Jersey is not relevant to the debate.

[Mr Rees-Mogg]

I am grateful to my right hon. and learned Friend, who I think is absolutely spot on. The indivisibility of the Crown within the United Kingdom is central to the Unionist case, and I think that if a Unionist Government are willing to divide the Crown, that is a very dangerous step. I would rather give the Scottish Parliament other powers—some of which are the subject of other amendments—than give it this very important power relating to the Crown, which, as has already been pointed out, has been indivisible for longer than the Parliaments have been united. It brought the two countries together, and that was then established firmly in law.