European Union (Withdrawal) Bill

Edward Leigh Excerpts

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

[Caroline Lucas]

I thank the hon. Lady for her intervention, and I absolutely support what she says. Last night, I proudly went through the Lobby on amendment 79, which would have given the devolved Administrations more of a say on the Brexit process.

[Sir Edward Leigh (Gainsborough) (Con)]

We in this country are of course well known throughout Europe as a nation of animal lovers. The hon. Lady was kind enough to say that we started off this whole process. Once we leave Europe, will she join us in ensuring that in our own laws we have the best animal welfare protection in the world?

[Caroline Lucas]

As a passionate animal rights and animal welfare campaigner, I obviously want the best possible animal welfare laws in this country and in all countries, and I will not diminish my commitment to that.

I simply want to say that the omission in not transferring this bit of EU law into UK law—I understand why it cannot be transferred directly—is something that we could very easily rectify. As I say, I do not expect anyone to find any great controversy in doing so. New clause 30 is simply seeking to make sure that we close that gap. I am not for a moment suggesting that the result of our not closing it would be that we all suddenly went out and started murdering kittens—no one is suggesting such a thing—but I am saying that this is an important protocol. It was important enough for the British Government to use all their influence in the EU to have it included in the Lisbon treaty, and we should continue to have it in UK law.

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[Sir Oliver Letwin]

I leave that to the Government, but it is noticeable that new clauses 60 and 67 would have UK application. I take it that we will be able, by one means or another, to ensure that such legislation as comes forward is so discussed with the devolved authorities that it, too, has some kind of UK application. The precise means of doing that I am neither competent nor desirous to discuss in the context of these amendments.

[Sir Edward Leigh]

After Brexit, we all want to have the best environmental standards possible. Before my right hon. Friend sits down, will he return to new clause 30? If he reads new clause 30, he will see that it drives a coach and horses through the entire principle of the Bill, because in matters concerning animal welfare it would make, for all time, our courts and Supreme Court ultimately subject to the treaty of Lisbon. In that sense, new clause 30 is therefore a wrecking amendment.

[Sir Oliver Letwin]

I did not intend to return to new clause 30, which I did not table, but my hon. Friend may well be right. I am sure the Government will have something to say about sentience in UK domestic law.

I am under pressure from the Whips to end, and I certainly will end. [Interruption.] I am very sorry. I just express the hope that we can at least continue to discuss this. My hon. Friends and I, as well as the Secretary of State, have tried to discuss this in some detail with the environmental groups, and we should continue that discussion because there is a golden opportunity to do something very good for our country and for our environment.

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[Dominic Raab]

I am glad that the hon. Lady made that intervention. Clauses 2, 3 and 4 are subject to the savings and the caveats in clause 5 and schedule 1. The point about schedule 1 is not that no EU principles will apply after the date of exit, but that that date is the cut-off point for recognising EU principles as reflected in UK law. New principles that may evolve after that point do not become part of UK law; only the ones that arose before that point do. That is the clear intention schedule 1(2). I hope that that gives the hon. Lady some reassurance, but we will come on to talk about the savings in clause 5 and schedule 1 on a separate day next week, when I will be happy to return to that point if she has any outstanding concerns.

[Sir Edward Leigh]

Will my hon. Friend allow me to intervene one last time?

[Dominic Raab]

Perhaps shortly, but I am going to make some progress now, because I am hearing censorious noises from the Chair and I want to respond very obediently to them.

I turn to amendment 70, in the name of the right hon. Member for Ross, Skye and Lochaber (Ian Blackford). I think the sentiment behind the amendment is laudable, but I reassure the House that the amendment is unnecessary for the protection of rights. In fact, it is potentially counterproductive. Clause 4 will save all the directly effective rights that arise under the EU treaties to the extent that they are available now; that is the point that I wanted to get across to the hon. Member for North Down (Lady Hermon). We have deliberately not included a list of those directly effective rights in clause 4 or in the rest of the Bill, because there is no single, comprehensive and reliable list of all directly effective rights in the EU treaties. They are not set out in legislation—UK, EU or otherwise—but they are determined by the courts. Our approach is therefore based on procedural as well as substantive legal continuity.

The explanatory notes to the Bill set out a list of the articles from the treaty on the functioning of the European Union that the Government consider to contain directly effective rights, which will remain available in domestic law following our departure from the EU. That list, which includes article 157 on the right to equal pay, is intended to be illustrative of some of the rights that will continue to be available under clause 4. If we were to define a single list—especially if it was a non-exhaustive one—and legislate for it, we would inevitably run a significant risk of inadvertently omitting or mis-stating rights that individuals and businesses rely on, or suggesting to the courts that those rights were supposed to have a special status beyond the ones that were not listed.

We can reasonably expect individuals and businesses to want to rely on any list that we produced. Quite reasonably, they may not realise that they can rely on a wider set of rights that are not on any such list. The effect of amendment 70 would be at best to create legal uncertainty, and at worst—this is my concern—to mislead people about the rights available to them. The Government do not want that to happen, and I hope that I have persuaded the hon. Member for Airdrie and Shotts (Neil Gray) not to press the amendment.

I want to turn as briefly as possible—I will not take any further interventions to allow others to speak—to amendment 148, in the name of the hon. Member for Stretford and Urmston (Kate Green), who is in her place. It is important that the issue of children’s rights has been raised through the amendment, and I hope I can give her some reassurance. Most importantly, I want to reassure the Committee that the UK’s commitment to children’s rights and the UN convention on the rights of the child is and will remain unwavering. Our ability to support and safeguard children’s rights will not be affected by UK withdrawal from the EU.

Domestically, the rights and best interests of the child are protected in England primarily through the Children Act 1989 and the Adoption and Children Act 2002, as well as in other legislative measures. Scotland, Wales and Northern Ireland have their own measures for the protection of children’s rights, in accordance with the UN convention on the rights of the child.

The UK will of course continue to be a party to the UN convention, but amendment 148 is flawed in seeking to apply an EU principle of direct effect to a global UN treaty, which is of course governed by general principles of international treaty interpretation under the Vienna convention and customary international law. I am afraid that that is a recipe for legal confusion.

In any event, we already give effect to all our international obligations under the UN convention. For example, the Children Acts 1989 and 2004 set out a range of duties to safeguard and promote the welfare of children. In 2013, we issued statutory guidance to directors of children’s services, which requires them to have regard to the general principles of the convention and ensure that children and young people are involved in the development and delivery of local services. The Children and Social Work Act 2017 is a further example of how we constantly seek to make sure that we not only protect children’s rights but enhance them.

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[Sir Edward Leigh]

Will my hon. Friend give way?

[Dominic Raab]

No, I will make some progress, otherwise I will be in serious trouble. I have taken several interventions.

I must turn to amendment 94, in the name of the hon. Member for Bristol East, who has also tabled amendment 95. I will address the two amendments as briefly as I can. Amendment 94 is intended to include within the scope of clause 4 rights that might arise under EU directives, but which have not yet been recognised by the European Court or the domestic courts, and might only be recognised many years after we have left the EU.

There are three basic objections to amendment 94, notwithstanding the commendable spirit in which the hon. Lady has introduced her amendments. First, amendment 94 is at odds with EU law. It conflicts not just with the UK’s approach, but with the EU’s approach to what counts as—or what the definition is of—a directly effective right. By definition, such rights need to be sufficiently clear, precise and unconditional, and they must be recognised as such by UK courts or the European Court at the date of exit. The effect of her amendment would be to inflate the definition of what counts as EU law at the very moment that we are departing from the EU, which cannot be right.

The second objection is that the amendment would not provide the accurate snapshot of the law that we are seeking to take on departure. From a practical point of view, that would risk confusion for anyone trying to glean the true legal position with any reliability.

The third persuasive argument is that the fact that we are leaving the EU means that we are taking back democratic control of our laws. With that in mind, it would not be right, as the amendment envisages, to retain an ability for thousands of directives—parts of EU law that we are not incorporating—to continue to produce new legal effects long after we have left the EU. That would run in direct conflict with the objective of clause 4 and, indeed, the whole Bill. Given the number of EU directives in force, newly found directly effective rights would have a hugely disruptive effect on UK law.