European Union (Withdrawal) Bill

Heidi Alexander Excerpts

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

[Jonathan Edwards (Carmarthen East and Dinefwr) (PC)]

rose—

[Heidi Alexander (Lewisham East) (Lab)]

rose—

[The Solicitor General]

I would love to give way to the hon. Lady, but I am mindful of the time, and Mr Hoyle is looking at me in a very stentorian way, so I had better follow that instruction.

There are some potentially detrimental effects of the amendments that I know hon. Members would want to avoid. Amendment 217 seeks to remove the annexes to the EEA agreement from the scope of clause 3. The hon. Member for Arfon (Hywel Williams) is not in his place at present, but the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards) is here to represent their party’s interests, and I say to him that that amendment would not allow us to remain in the EEA, for the reasons I have set out, and it would damage the clarity and certainty we aim to provide.

As many hon. Members already know, the EEA agreement effectively extends the single market to three non-EU countries: Norway, Iceland and Liechtenstein. Annexes to the agreement specify which single market rules apply to those countries, along with any necessary adaptations, in order to make the single market properly operate with respect to these countries. Clause 3(2)(b) and (c), which amendment 217 would remove, provide that EU instruments which apply to the EEA will also be converted into domestic law. Those provisions are necessary to ensure that we fully preserve the existing laws and rules that apply here before our exit. They are not, and are not in any way intended to be, a means by which the UK ceases to be a party to the EEA agreement. The retention or otherwise of such annexes within our domestic law will not change that basic fact. The effect of amendment 217 would only be to leave gaps in the law which, as I have set out, would clearly be undesirable.

Similarly, amendment 64 would remove from the Bill provisions in schedule 8 that make amendments to the European Economic Area Act 1993. Such amendments are necessary to reflect the fact that the EEA agreement will no longer be relevant when we leave the EU. Leaving the 1993 Act unamended would not change that, but it would result in more uncertainty.

[Heidi Alexander]

Will the Solicitor General confirm whether the powers outlined in part 2 of schedule 8 and in clause 8 would allow Ministers to issue an article 127 notification under the EEA agreement?

[The Solicitor General]

That is not necessary. The provisions in schedule 8 are all about the frameworks, not the policy, and this Bill is not a vehicle for policy. This is a framework Bill that allows the law to operate within it. That is the distinction that I seek to draw. While I understand and respect the reasons behind the amendments, they do not deliver the policy outcomes that the hon. Lady and others may want.

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[The Chairman of Ways and Means (Mr Lindsay Hoyle)]

Order. We have a lot of speakers and, as Members are well aware, there is no knife today. I will not be setting a time limit, so in order to get to the second debate I suggest that Members use up to eight minutes, including interventions.

[Heidi Alexander]

I rise to speak to new clauses 22 and 23 in my name. I say at the outset that I will not take interventions because I know other Members wish to speak. I put on record my thanks to George Peretz QC for his help in drafting the new clauses.

New clause 22 would prevent Ministers from using provisions in this Bill as the basis for withdrawing the UK from the European economic area, whether under article 127 of the European economic area agreement or otherwise. It would also ensure that Ministers cannot use the regulation-making powers they seek to give themselves in other parts of the Bill to circumvent that carve-out. It would mean, in effect, that if Ministers wanted to take us out of the EEA, which is the grouping of EU and non-EU countries that together make up the single market, they would need to introduce a separate Bill to authorise that.

Why is this necessary? The UK is currently a member of both the EU and the EEA. Although the bodies overlap, they have different member countries, they are governed by different treaties and they have different guiding principles at their heart. There is one process for leaving the EU, as governed by article 50 of the Lisbon treaty, and another for leaving the EEA—article 127 of the EEA agreement requires a member to give 12 months’ written notice. Parliament should determine whether we trigger article 127 to notify our withdrawal from the EEA, and not the Prime Minister sat behind her desk in No. 10. MPs in this House, the public’s elected representatives, should decide, and there should be a specific, explicit vote that is binding on Ministers.

The Government’s contention that it is not necessary to trigger article 127, and that we do not need formally to leave the EEA as we are a member simply by virtue of our EU membership, does not stand up to scrutiny. All EU states are listed as contracting parties to the agreement, in addition to the EU itself and the three non-EU EEA states.

The Government have changed their argument on article 127 repeatedly over the past year. One minute they argue that our departure would be automatic, and the next that our membership would be unworkable. They assert legal opinion as irrefutable fact. They fail to acknowledge that a basic principle of international law is that a treaty relationship with another state cannot be changed simply by changing a different treaty to which that state is not party and assuming a knock-on effect. And the Government fail to acknowledge that, at a time when we would supposedly be wanting to sign international trade treaties with other countries in our own right, we might be in breach of the treaty that underpins the EEA. This all sounds very legalistic, but the issue has critical importance beyond the legal technicalities.

At its heart, new clause 22 is about democracy and our country’s future. In last year’s referendum there was only one question on the ballot paper:

“Should the United Kingdom remain a member of the European Union or leave the European Union?”

The words “European economic area” or “single market” did not feature. Had Parliament wanted people to take a view on the EEA, we could have legislated for that in 2015, but we did not. Some people say, “Everyone knew it meant we’d be leaving the single market,” but that is simply an interpretation of the result. Some people may have voted to leave it, but others did not. The Government are now rewriting history: they claim that coming out of the single market and customs union is an automatic consequence of the leave vote, not their political choice. If just one tenth of those who voted leave believed that we would stay in the single market, there never was a mandate for the sort of Brexit that the Government are now pursuing.

We spend hours in this place debating all the twists and turns of negotiations, parliamentary processes relating to withdrawal and so on, but we never seem to get to the crux of the issue. That is what new clause 22 would do: give us a parliamentary lever to shape Brexit. Parliament must determine whether we leave the single market. We must decide whether Ministers should notify other countries of our intention to leave the EEA. The process must not be reduced to some sort of back-door authorisation that can be cobbled together by adding up various bits of the Bill, but that is precisely what the Government are trying to do.

I believe that the repeal of the European Economic Area Act 1993 contained in part 2 of schedule 8 will be used by Ministers, alongside the powers they want to give themselves in clause 8, to claim parliamentary authorisation for setting the ball rolling on our departure from the EEA. They will claim that the by-product of Parliament’s voting, as part of the Bill, to remove domestic UK rights for the citizens and businesses of EEA countries such as Norway, is a parliamentary authorisation to notify other EU and EEA countries of our intention to leave.

[Anna Soubry (Broxtowe) (Con)]

I know that an overwhelming majority of the people who voted in the hon. Lady’s constituency voted to remain. Does she share my concern that many such people feel completely excluded from Brexit? Does she think that this sort of debate will absolutely help to bring people back together and, perhaps, to form a consensus on Brexit?

[Heidi Alexander]

I completely agree. My new clause may offer some form of compromise, which I shall set out in due course.

How many of our colleagues actually understand what the Bill will do? Why do the Government want to avoid open and transparent debate? Why is there not a specific clause in the Bill that makes it clear? The answer is obvious: the Government are doing everything they can to avoid an explicit vote on whether the UK should leave the EEA and the single market. They are worried that there might be a parliamentary majority for a so-called soft Brexit, in which we put jobs first and anxieties about immigration and so-called sovereignty second.

[Catherine McKinnell (Newcastle upon Tyne North) (Lab)]

Will my hon. Friend give way?

[Heidi Alexander]

I did say that I was not going to give way to anyone, so I am not going to do it again.

New clause 22 would not decide on the substantive question of EEA membership, but it would guarantee that at a future moment the House could have its say. If we do not change the Bill accordingly, we will have sold the pass.

Mr Hoyle, if you think the democratic arguments for the new clause are strong, I can tell you that the economic arguments are even stronger. The Government seem finally to have listened to business and have accepted the need for some form of interim arrangement to fill the hiatus that will exist between the conclusion of the article 50 negotiations and the signing of any new UK-EU trade deal. They claim that they want trade to continue on the same practical terms as today, for a time-limited period, even though they envisage that we will have legally come out of the European Union. That is basically an extension of EU membership, but without political representation: no British Members of the European Parliament in May 2019 and no representation at the Council of Ministers—no influence. The Government claim that that will not be the same as our remaining in the single market and customs union, although to all intents and purposes, it will be.

Banks, car manufacturers, IT firms, chemical producers and pharmaceutical companies all need clarity about their ability to sell into the European market and the continued viability of pan-European supply chains. The Government are right to want to give them certainty for a two-year period post the conclusion of the article 50 negotiations, but those companies need more.

If we are not going to lose jobs and investment, businesses need to know what tariffs will and will not apply on exports, what checks will be conducted on goods at the border, and what overall regulatory regime will apply to them in the future—not just in 2020, but in 2022, 2025 and beyond. A fudge might cut it for a few years, but it will not last forever. As a country, we will face a fundamental choice: do we align ourselves with European standards, or do we deregulate and go for weaker American or Chinese ones? There is not some fantasy mid-Atlantic option out there that the Government can conjure up, which is why continued membership of the European economic area could be so important.

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[Stephen Doughty]

On an important point of clarification, my hon. Friend has made an incredibly strong speech. Citizens have only to go through the border and see EU and EEA as separate things on border signs to know the importance of the argument that she is making. Like me, would she like to see this measure put to the House at the appropriate time in the Bill, depending on the argument that we hear from the Government and others?

[Heidi Alexander]

My hon. Friend has issued a very timely reminder to me. If it were possible, I would like that to happen.

[Robert Neill]

It is a pleasure to serve under your chairmanship, Mr Hoyle.

This is another important debate on some key issues related to retained EU law. With no disrespect to my constituency next-door neighbour, the hon. Member for Lewisham East (Heidi Alexander), who made some powerful comments, I will concentrate specifically on those matters of retained law. As one might say in court sometimes, I adopt the arguments of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). I was about to say that I had nothing further to add, but I will not go quite as far as that. None the less, I do entirely agree with his approach to this part of the Bill and to what we should seek to achieve in relation to retained law.

May I add a couple of other broader observations? I very much welcome the spirit of the remarks made by the Solicitor General and the other Ministers currently on the Treasury Bench. I am grateful for their constructive approach. It is a reminder that Conservative Members have far more in common than that which ever might cause us to disagree about matters on this Bill. It is also a timely reminder that our commitment to protecting social standards and protections is undiminished.

As has been rightly observed, the Conservative party has historically always been a party of social protection and social reform, from the great Christian philanthropists such as Shaftesbury through to Peel—arguably one of the greatest of all Conservative Prime Ministers—and Disraeli and up to the present day. I include a short plug for a previous Member of Parliament for a good part of the Bromley and Chislehurst constituency, the late Lord Stockton, who was, of course, the Member of Parliament for Bromley. Many of us are proud to be in that one nation progressive tradition and want to ensure that we take that forward into the future.

I now turn to amendment 356, which is in my name and is supported by my hon. Friend the Member for Wimbledon. I am also grateful to the hon. Member for Ilford North (Wes Streeting) for adding his name to it. The amendment concerns the UK’s ability to maintain regulatory alignment in the immediate period after the UK leaves the EU, where there is EU-derived legislation that is not fully in effect on exit day. The Solicitor General was kind enough to refer to that topic when I intervened on him. I accept his intentions, but I would like to develop my view on these issues a little further.

As we already know, clause 3 will impose a strict cut-off on the law that is to be retained in that it must not only be on the books—so to speak—but must also be fully applicable and effective immediately before exit day. So far, so good; it is obviously right that Parliament should not automatically apply EU laws introduced after Brexit. It should decide whether we want to apply them, as a matter of our own sovereign judgment. There will be cases, however, where legislation is sufficiently far down the line as we leave the EU that a more flexible approach is justified. It is that limited, but important, area of cases that I will deal with.

There may be legislation that we have no problem with as a matter of policy and that businesses or other affected parties would wish to have—perhaps we were involved in its preparation when we were still a member of the EU. The European Scrutiny Committee and other parts of the House may even have had the opportunity to peruse the documents, and business and other affected parties might already be making preparations to implement and comply with that legislation. How do we deal with that? At the moment, it looks as though we would need primary legislation in those cases. That would be cumbersome for all the reasons that the Solicitor General recognised in his exchanges with the right hon. Member for Birkenhead (Frank Field).