European Union (Withdrawal) Bill

Geoffrey Cox Excerpts

Committee: 6th sitting: House of Commons
Tuesday 12th December 2017 Commons Chamber

[Mr Grieve]

Indeed. To that extent, it will, as I understand it, have sufficient flexibility and will, I hope, also be able to command enough confidence. These are difficult issues, but, as I say, I am mindful of the fact that my right hon. and hon. Friends on the Treasury Bench, having been asked to consider this, have gone and done it in a conciliatory and sensible spirit. For that reason—we were talking earlier about trust—this is one matter on which I have trust in the way that they have responded and that this will be sufficient for the work we have to do.

In the longer term, this issue will not go away, and I feel strongly that this House ought to be thinking about how it can assert itself again to take a better system of scrutiny than that which we have at the moment. Heaven knows, I have sat through enough of these Committees to know their deficiencies. It is also noteworthy that, although some jurisdictions have specialist committees linked to each of their select committees to consider legislation, we do not—something I have always found mystifying. I also served for four years on the Joint Committee on Statutory Instruments. It was a very interesting Committee, but, again, it did not really have the necessary bite to correct what were sometimes egregious howlers, of the kind that my right hon. Friend the Member for Wokingham pointed out.

I turn now to the other way this matter can be looked at: by trying to constrain the powers the Government are taking. Of course, the vast majority of the amendments I have tabled along with my right hon. and hon. Friends concern constraining those powers. For example, amendment 2, which has been mentioned, would use a process first introduced in 2006 in seeking to constrain the powers set out by applying the concept of reasonableness and proportionality. Another example is my amendment 1, which would leave out the words

“(but are not limited to)”,

and so limit the deficiencies to the list of powers and functions set out in clause 7(2).

The Government have here an enormous menu of options by which the powers in clause 7, and indeed elsewhere in the Bill, can be constrained. I do not want to repeat some of the things we have said in earlier sittings of this Committee. The question for me is: how will the Government respond? There is a legitimate argument from the Government, which I have heard and listened to, that they ought to go away and consider the variety of amendments—mine are not the only ones; a great range of amendments have been tabled from across the House, and each, in my judgment, is valid. The Government have to come up with a response on how they can constrain the powers set out. At the moment, my opinion is that these powers are far too stark, far too great and not necessary. My right hon. Friend the Member for West Dorset (Sir Oliver Letwin), to whom I also always listen very carefully on these matters, approaches this matter from a slightly different angle, so I was interested to hear him say that he thought the powers were excessive and unnecessary—I hope that I do not paraphrase him wrongly.

In those circumstances, the Government have to think again. I do not want to be particularly prescriptive, because it seems to me that there are a range of ways in which this could be done. I want to hear from Ministers this afternoon broadly how they will respond to the amendments and give some thought to coming back on Report with a constraint on the powers set out. There are probably two ways this can be done—indeed, we could do both. The first is to accept some of the amendments. On my amendment 1, for example, I continue to be bemused that, in view of the extensive nature of subsection (2)(a) to (g), it is in fact necessary to provide a further power. I think that there are excessive jitters within Departments. Somebody ought to have the courage to say, “Find me some examples that fall outside the scope,” and if they can, they should add those to the list and take out the unlimited nature of the powers at the top of the clause.

I accept, picking up something that was said earlier in Committee, that the word “deficiency” provides some constraint. I take the view that if an attempt were made to extend the use of the powers outside of correcting a deficiency, it could be challenged in court, but we do not want to end up with court challenges. I say to Ministers that that would be the worst possible place to end up in January 2019—the clock ticking and people claiming the Government have used excessive powers. That would contribute to chaos rather than certainty, so the issue needs to be addressed.

The second issue, which has been highlighted by some of the other Members who have spoken, is whether the Government can sensibly identify areas of particular concern to the House, such as children’s rights, environmental law or equality rights, that can be safely cordoned off—or, in the case of children’s rights, specifically inserted—to reassure the House that these powers will not be used for a purpose other than that which was intended. That seems to me to be the challenge.

For those reasons, I am going to listen very carefully. I want to avoid putting any of my numerous amendments to the vote, but that will depend first on the answer that I receive from the Dispatch Box this afternoon and secondly on whether the answer is sufficiently clear and shows a willingness by the Government overall—we have debated this on previous days—to go away and consider the matter properly, and then come back with a sensible proposal on Report. I should be happy to wait until then, because that is exactly what the process of legislation is about—waiting to see what the Government come up with—but I put them on notice that if what they come up with is inadequate, the debate on Report will allow us to re-table amendments, or table them in a slightly different form. If necessary, we will vote on them, and I will vote to ensure that the powers are not as they currently appear. That is the challenge to the Government, and I expect a response. Provided that I receive that response, I will sit on my numerous amendments this afternoon.

Let me say one more thing, about a matter that has not been much touched on. My new clause 82 deals with tertiary powers. This is a little bit technical, but I do not like tertiary powers. I do not like them one little bit. They are, of course, powers that ultimately do not come to this place at all. I want to find out this afternoon what tertiary powers are actually for, and I want the Government to give some examples to justify their appearance in the Bill. I confess that I found it slightly difficult to see why they had crept in. One or two people have suggested some possible reasons, but I should like to hear rather more this afternoon; otherwise, again, I put the Government on notice that I shall return to this matter on Report. I do not think that the world would come to an end if they were to disappear from the Bill, although my hon. Friend the Minister may persuade me otherwise. As a result of the Government’s approach, we have already made great progress on triage. I am grateful to them for that, because it is exactly how the Bill should be dealt with. However, I want to see some progress on constraining the powers and making them less extensive, because I think that they are unnecessarily broad.

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

As ever, I am considering what my right hon. and learned Friend is saying with enormous care. Much of it has enormous force and makes a great deal of sense. However, if his objective in amendment 2, which inserts proportionality and reasonable tests, is to avoid resort to the courts, I should point out that the insertion of a clause of that kind is more likely to encourage resort to the courts than to deter it.

[Mr Grieve]

My hon. and learned Friend is right. Of course it is true that, although such measures have a history of being introduced into legislation, amendment 2 raises the risk of legal challenge, because ultimately these issues can usually only be resolved in courts.

[Mr Cox]

More often.

[Mr Grieve]

Such measures may act as a constraint, but once Ministers have taken the plunge, there will not be much that we can do. That is precisely why there is a menu of options. I personally would prefer Ministers to do a proper exercise of asking themselves whether they really need individual powers in their current extensive form. That would be the easier course, and it would provide much greater certainty and avoid the lawyers, although it might do my hon. and learned Friend out of a brief fee or two, but lawyers on the whole ought not to benefit from defective legislation in so far as possible. I am grateful to the House for listening, and I look forward to hearing the response of my hon. Friend the Minister.

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[Mr Baker]

I am grateful to my right hon. and learned Friend for that intervention.

[Mr Cox]

I wonder whether my hon. Friend might be attracted by this idea. At the moment, as drafted, the clause gives an inclusive, non-exhaustive list of examples, but I wonder whether the principle of ejusdem generis might not assist us if it were slightly redrafted. One could draft it so that any extensions beyond the inclusive list had to be of the same kind or species as those that were listed. That might give some comfort, if they have to be of a similar character to those enumerated in the Bill.

[Mr Baker]

I am extremely grateful to my hon. and learned Friend, and I would be happy to meet him, our legal team and my right hon. and learned Friend the Member for Beaconsfield to take their suggestions on board. I am keen to address this, and I know that the Secretary of State is keen to do so, but I am not in a position today to have tabled or accepted an amendment. I ask them to bear with me and have further meetings with us and our legal teams to try to find a way through.

European Union (Withdrawal) Bill

Geoffrey Cox Excerpts

Committee: 5th sitting: House of Commons
Wednesday 6th December 2017 Commons Chamber

[Ian Paisley]

I only go so far with that point, because it is wrong in this sense: every issue that comes before this House—whether a minor constituency petition or a major European withdrawal Bill—is important to the people we speak for, and we must give it the full weight and dignity that it therefore deserves.

I was delighted that tonight the Minister from the Dispatch Box nailed the fallacy that new clause 70 would bring about—the fallacy that that new clause is the only way that Her Majesty’s Government can show their commitment to the Good Friday agreement. That is common unnecessary grievance; this matter does not need to be brought before the Committee, as the Minister explained well. In fact, I would venture to suggest that the lives of soldiers and police officers, and the money from taxpayers from across the whole of the United Kingdom, as well as an international treaty, have in many ways demonstrated the Government’s commitment to the Good Friday agreement—the Belfast agreement—and the follow-on agreements. It is wrong to support this grievance culture that we are so good at in Northern Ireland. The Government are clear that they do support the Good Friday agreement, and it would be wrong to add it to this Bill. It diminishes an international treaty to say it has to be reinforced again in a Bill to which it is not relevant.

The Belfast agreement makes scant comment and reference in all of its 35 pages to the EU and its activities. It makes several references to the European convention on human rights, which is outwith the EU, and it is right to do so, and it makes one reference to the process of d’Hondt—a European mathematical mechanism for electing people in a particular way and sharing out political office—in its 35 pages, but there is no reference whatsoever to key elements of the EU.

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

The hon. Gentleman is making a logical and thoughtful case. Does he not agree that all the substantive protections that were intended after 1998 to protect the Belfast agreement in Northern Ireland’s domestic law were introduced either in the Northern Ireland Act, or in specific statutes that still apply or will apply in retained law as a consequence of this legislation, and that all the substantive protections will therefore still exist? The declaratory or mandatory provision that would be introduced by new clause 70 would simply cut across those protections and introduce significant legal uncertainty.

[Ian Paisley]

The hon. and learned Gentleman has nailed it extremely well. By agreeing to this proposal, we would be diminishing the principles that many colleagues say they are signed up to and support, because we would be limiting the provisions to a few words on the front of this Bill. That would be unnecessary and the wrong way to treat an international treaty signed by Her Majesty’s Government and the Government of the Republic of Ireland.

No case has been made that demonstrates that the Belfast agreement will be directly impacted by this withdrawal Bill. People have talked about its impact tangentially, but no specific case for a direct impact has been made. That is because, as I have said, the claim that the agreement is in some way under threat from the Bill is a made-up grievance by the Irish. It is not under threat. It is irrelevant to the Bill. To entertain that claim plays into the domestic politics of the Republic of Ireland, and it is not our place to do that in this House. We should stay well away from that.

I do not often quote David Trimble—Lord Trimble, as he now is—but I am going to make an exception tonight, given that he was one of the authors, principal negotiators and signatories to the agreement. His words are extremely helpful. He has said:

“It is not true that Brexit in any way threatens the peace process. There is nothing in the Good Friday Agreement which even touches on the normal conduct of business between Northern Ireland and the Republic. Leaving the European Union does not affect the agreement because the EU had nothing to do with it—except that Michel Barnier turned up at the last moment for a photo opportunity. The European Union does have a peace and reconciliation programme for Northern Ireland but there is no provision for it in the EU budget. It is financed from loose change in the drawer of the European Commission.”

It is also the case that Her Majesty’s Government have committed to provisions for a reconciliation programme, which they will take forward post-Brexit. That will probably be a much more targeted and beneficial fund for many of the representatives of the third sector who are knocking on the doors of Northern Ireland Members of Parliament to demand that the money should be used a lot better. That helpful insight from David Trimble should be borne in mind by all Members on both sides of the House.

For those who say that they are so committed to the principles of the agreement, the Father of the House, the right hon. and learned Member for Rushcliffe (Mr Clarke), pointed out what he called the oxymoron of the border issue. The fact of the matter is that the Irish foolishly got the matter of the border into phase 1 of the agenda. I believe that they were wrong to do that. They should have made sure that they got it into phase 2 or phase 3, because the real issue that concerns them is trade. The Irish have overplayed their hand considerably. They need a trade deal more urgently than Northern Ireland does.

Let us look briefly at the cost to the Republic of Ireland of having no deal. That is something that is never done in this place. We are always looking at what the cost to us would be, but the cost to our partner would be significant. If the Republic of Ireland does not get a trade deal, its GDP will collapse by 4% almost overnight. That is the figure that has been produced in its own Dáil report. The Republic of Ireland’s largest trading partners are the United Kingdom—with which it will no longer have a free trade arrangement—the USA, Canada, India and Australia. Those trading partners are more important than the EU to the Republic of Ireland. In the area of fishing alone, 40% of the Republic’s fishing market is in our waters. If we close those waters to the Republic of Ireland, the Spanish and Portuguese boats and other boats from across the EU will be fishing in the Irish box rather than in our fishing waters. Ireland would soon find that its fishing trade had gone completely.

It is utter madness for the Republic of Ireland to make this a key issue, because a closed border would damage it more. It is not my party saying that it wants to build a border, and it is not the Unionists of Northern Ireland or Her Majesty’s Government. Who is going to build this border? Is it the Republic of Ireland? Is the EU going to instruct people to build it? We have indicated that there are other mechanisms by which we will control our border, and that is what we will do.

Finally, Mr Hoyle, much time has been taken discussing the regulatory consequences for Northern Ireland. Today at the Northern Ireland Affairs Committee, industry representatives agreed that perhaps the tables should be turned on the Irish Government and they should follow UK regulations post-Brexit, rather than us following EU regulations. I suggest that maybe the Irish should be the ones who compromise. The hon. Member for North East Fife (Stephen Gethins) said that he supports regulatory alignment, but he seems to support it only if it applies to the whole UK, and not if it applies solely to Northern Ireland. I think that matter should also be nailed.

Finally, Mr Hoyle—[Interruption.] Those words often galvanise, Mr Hoyle. The utter confusion that the Labour party has shown on this matter is what confuses me most. The economic spokesman, John McDonnell, has said that we must leave the single market in order to respect the referendum result. The deputy leader, Tom Watson, has said that we should stay in the single market and the customs union permanently. Jonathan Ashworth and Jenny Chapman, the Front-Bench spokesman here tonight, have said that we have to leave the single market. [Interruption.] Diane Abbott has said that we should keep freedom of movement—

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[Mr McFadden]

I rise to support new clause 70, tabled by the hon. Member for North Down (Lady Hermon). Let me begin by paying tribute to her courage, and to her wonderful and moving speech at the start of this debate. The aim of the amendment is both simple and important: to place in the Bill the continuing importance of the Belfast or Good Friday agreement in the new post-Brexit context in which it will have to operate.

We have already seen the difficulties that contradictory red lines from the Government have caused; red lines on the single market, customs union and no border infrastructure have been jostling and competing with one another, producing the tensions we have seen this week. Fundamentally, this is a tension between two things. We can be part of a rule-based European-wide system, whatever language is used, be it “regulatory alignment”, “convergence” or some other form of words, in which case we keep the economic benefits from the UK and there is absolutely no need for a hard border between Northern Ireland and the Republic of Ireland. Alternatively, we can make a decision to leave the system in its entirety, in which case we have different systems and regulations on either side, we have major consequences for our economy and we necessitate a border. We either have a border or we do not. It is not a negotiation—it is a decision. All the way through, this kind of decision will have to be confronted. If we get a deal and we get approval to move on to phase two of these negotiations in the coming days, this kind of decision will confront us more and more. Avoiding the decision and pretending it is not there or that we can simply pick and choose from what we like in both options is what produced the chaos and humiliation this week.

On the issue of the Good Friday agreement, the amendment seeks to ensure that any changes are only those arising directly as a consequence of the UK’s decision to leave the European Union. It therefore places obligations on the Secretary of State and on Ministers in the devolved Assembly to act in line with the principles of the agreement. Those principles are hugely important. First and foremost was a rejection of violence and a commitment to exclusively peaceful means in the pursuit of political ends. Secondly, this was about consent. The agreement respects whatever choice the people of Northern Ireland make about their constitutional status and says

“it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people”.

That was hugely important, but the agreement is also a package. What it says about equality and the equal status of people from every community is very important.

[Mr Cox]

rose—

[Mr McFadden]

We are under some time pressure, so I would rather continue.

The agreement is also important in what it says about identity, and I wish to stress this point. It gets to the heart of the old problem that dogged Northern Ireland politics, which was the view that if one community gained, the other had necessarily lost. The tyranny of identity politics can be that it forces people to choose between multiple and overlapping identities—are they one thing or the other? When it comes to identity, the genius of the Good Friday agreement is that it does not force people to choose. Instead, it talks of

“the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both”.

Let us not forget the “or both", as it is very important. It gives everyone in Northern Ireland an equal status and a legitimate sense of belonging.

[Mr Cox]

rose—

[Mr McFadden]

I am going to continue. The point about identity is crucial, because we have to understand that the Good Friday agreement’s effects were not just economic or governmental, but profoundly psychological. By enshrining these principles, the agreement turned a page. The great danger is that Brexit is seen as going back, and we must not go back in any sense of the term. So if hon. Members want to know why the amendment is important and why it is necessary, I say to them that that is why it is necessary. It is because we must hold dear to these principles in a new political context, where, for the first time in history, one country is going to be outside the European Union and its neighbour is going to be inside it. We have never had that before.

When the agreement was signed, it was different: both countries were members of the European Union. Twenty years on, we must guard against any complacency that would see the agreement as a 20-year-old document that can simply be put aside. The agreement was the basis for a new normality, which has not only saved many, many lives—although it certainly has done—but led to a new normality in trade, in relations between the UK and Ireland, and in relationships within Northern Ireland and on both sides of the border. There is peace, but it must not be taken for granted, be treated harshly or be subject to complacency. Great care must be taken.

The Minister and Government Members have, essentially, put forward two arguments for not accepting the new clause: first, that it is technically flawed and, secondly, that it is declaratory and does not add anything. Both those things cannot be true. The truth is that if the Minister wanted to avoid a vote tonight, he should have accepted the new clause. That would have shown that he was willing to legislate for what he said at the Dispatch Box. The excuses he has given for not accepting it are out of the standard book of Ministers’ excuses for not accepting amendments. He said, “I agree with the sentiment, but it is technically flawed. I will give the hon. Member a meeting.” Ministers have been standing at that Dispatch Box saying that kind of thing for decades. The truth is that if he wants to avoid a vote, he has to go much further and guarantee that he will legislate to put in the Bill a commitment to the Good Friday agreement in the new post-Brexit context in which it will have to operate. By doing that, he would be making a statement confirming that we hold dear to the beliefs enshrined in the agreement.

I return to the question of identity. Those in Northern Ireland should be able to choose freely to be British or Irish or both. Brexit must not become a divisive wall that separates those identities. It must not mean losing those all-important words “or both”, and all the beneficial consequences that have come from them.

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I am wholly in sympathy with what the hon. Lady has proposed and I strongly support the proposal of my right hon. Friend the Member for Broxtowe (Anna Soubry)—sadly, she is not in her seat; she would probably like to hear of that support. I came into the Chamber in the middle of the Minister’s comments. He was being very emollient. He should sit down with the hon. Lady and just see whether, by Report, we could not work into the text some mention of the Belfast agreement that is not justiciable.

[Mr Cox]

My right hon. Friend might well reflect on the fact that section 75 of the Northern Ireland Act 1998 creates quite a complex but rather delicate mechanism for the enforcement of many of the Belfast agreement principles. It relies not on a court, but on the Equality Commission, and the Secretary of State is at the apex, the decision maker, and decides whether or not a public authority is obeying the principles of equality in the Belfast agreement. If this new clause is introduced into Northern Ireland’s law, it will unquestionably create a situation of complex uncertainty as to how it sits with the Northern Ireland Act.

[Mr Paterson]

I am grateful that my hon. and learned Friend, who knows considerably more about the law than me, concurs with my comments that this new clause could be justiciable. On those grounds, I will not be supporting the hon. Lady’s new clause, but I hope that she has a satisfactory meeting with the Minister.

I am more concerned about the promise in the Prime Minister’s article 50 letter—it was in the position paper published in the summer—about the border:

“We want to avoid a return to a hard border between our two countries, to be able to maintain the Common Travel Area between us, and to make sure that the UK’s withdrawal from the EU does not harm the Republic of Ireland.”

That is absolutely spot on. As I see it, the real risk to the Belfast agreement comes from some of the developments over the course of this week. As the customs paper said in the summer, the border issue is soluble with technical measures. If we look at the figures: of Northern Ireland’s sales, 66% stay in Northern Ireland and 21% go to Great Britain. Therefore, 87% are within the UK—the single market of the UK. Only 5% of Northern Ireland’s sales go south of the border to the Republic of Ireland. Going the other way, only 1.6% of the Republic of Ireland’s exports go north over the border. That is according to the Northern Ireland Statistics and Research Agency.

I am concerned that the issue of the border is being blown up out of all proportion in relation to the size of the problem. There is a border today—a currency, tax and excise duty border. It is a tax point; it is not a customs inspection border. The Government’s position paper, published in the summer, includes proposals such as electronic invoicing, authorised economic operators, and derogation for small businesses in the border area. “Farming Today” this morning reported that the majority of Northern Ireland’s milk goes to dairies in the Republic. It is milk from the same farmer in the same tanker on the same road and with same destination every day. The situation is manageable with modern technology and good will on both sides.

I know some members of the Irish Government. I went there regularly as the shadow Secretary of State and very regularly as the real Secretary of State. When I was Secretary of State for Environment, Food and Rural Affairs, I worked closely with Simon Coveney, who I am delighted is the Tánaiste. He is a thoroughly practical and effective politician, who got a grip on the common agricultural policy around the time that Ireland had the presidency of the Council of the European Union, and drove the reform through with real determination.

I really hope that, with good will, the issue of the border can be settled. A hard border is completely impractical. It cannot work. Nobody wants it on either side. The problem can be resolved. The issue that blew up earlier this week is that there can be no difference in regulation between one part of the United Kingdom and another. Any change in regulation has to pertain to every part, including Northern Ireland, to keep the integrity of the United Kingdom.

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[Mr Leslie]

I see the right hon. Member for Wokingham (John Redwood) nodding his head, so he agrees. He is an honourable gentleman, because he does believe in parliamentary sovereignty. Many hon. Members agree that the new clause is not about whether we believe in the single market or the customs union; it simply states that when the withdrawal agreement comes to fruition there needs to be a specific vote on the money, because it will come from the taxes collected by the Exchequer—by the Government—and authorised by Parliament. There needs to be authority. I want to see hon. Members who advocated the whole process, on both sides, having to put their mouth where their money is and go through the Lobbies to state an opinion about the amount of money involved.

[Mr Cox]

Has the hon. Gentleman considered whether his new clause would achieve that, because it is phrased so that a draft of the instrument authorising a payment must be approved, but that would not require a specific sum? It could simply be a framework regulation allowing for such a payment to be made. Surely his new clause is not to the point.

[Mr Leslie]

The hon. and learned Gentleman, who considers these matters in great detail, will understand that this matter relates to clause 12, which details financial provisions. Clearly it would be impossible for the Government to bring forward such a motion that did not have the clarity that the House expects. In my generosity, I drafted the new clause so as to make it as broad and flexible as possible. Any information would be better than no information. I know that he is urging me to be firmer with the Government on the issue—a manuscript amendment is always possible, so I look forward to that. Let us give the Government a chance to accept the new clause, because it is perfectly reasonable.