European Union (Withdrawal) Bill

Huw Merriman Excerpts

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

The UK Government have therefore now accepted that, in relation to citizens’ rights, UK courts will continue to have regard to relevant decisions of the Court of Justice of the European Union. I urge them to reconsider, in relation to all our rights and all our rights in retained EU law, whether the courts of the United Kingdom should be able to pay due regard to relevant decisions of the CJEU in future.

[Huw Merriman (Bexhill and Battle) (Con)]

The hon. and learned Lady is making a very interesting speech. Retained rights for EU citizens perhaps go that little bit further, because they are specific to EU citizens in this country—hence the reference, perhaps with a little more certainty, to the European Court of Justice—but she is seeking to imply that same strict standard for all retained EU law.

[Joanna Cherry]

The point I am seeking to make is that having vigorously resisted my amendment, which I tabled for the benefit of everybody living in the UK in relation to issues of certainty about the interpretation of retained EU law after exit day, the Government have now conceded some ground—they are going to provide that certainty for EU citizens living in the UK—so why, if it is good enough for EU citizens living in the UK, is it not good enough for UK citizens living in the UK? Perhaps even more importantly—this adds force to my argument—senior members of the judiciary, both current and retired, have very serious concerns that the wording in the Bill as it stands will involve them in having to make political decisions.

In the past few days, we have seen the kind of vicious opprobrium that can be levelled at those who are seen to have made political decisions on the constitution where the EU is concerned, and earlier this year we saw the level of opprobrium directed at senior members of the judiciary for applying the law. The judiciary’s concern, therefore, is very real. I am not here just to advocate for the judiciary; I am here to advocate for democracy, the separation of powers, and the protection of the constitution. I may well have, as my ultimate goal, an independent Scotland with its own written constitution, but as long as Scotland remains part of the United Kingdom I am very interested in preserving UK citizens’ rights and democracy in the UK as a whole and protecting the notion of separation of powers within the constitution.

The Government do not have to take my word for it. They should look very closely at the evidence given to the House of Lords EU Justice Sub-Committee on 21 November. Lord Hope of Craighead pointed out that clause 6(2), as presently drafted, gives them a discretionary freedom rather than an obligation. Lord Neuberger, the former President of the Supreme Court, said:

“Clause 6(2), as drafted—it is a matter for a judge whether, and if so in what way, to take into account a decision of the Court of Justice on the same point in the regulation or directive, rather than in our statute. The problem for a judge is whether to take into account diplomatic, political or economic factors when deciding whether to follow the decision of the CJEU. These are normally decisions for the legislature, either to make or to tell judges what to do. We talked about our system in this country of judges being given a wide discretion, but this is an uncomfortably wide discretion, because a judge will have to take into account, or in some cases will be asked to take into account, factors that are rather unusual for a judge to have to take into account and that have political implications. It would be better if we did not maintain this system of judges being free to take decisions into account if they saw fit, if they were given some guidance as to the factors which they can and cannot take into account. Otherwise we are getting judges to step into the political arena.”

The issue of how the judiciary are to be given guidance on the interpretation of retained EU law arises directly from the wording of schedule 5 and takes us back to the wording of clause 6(2).

[Joanna Cherry]

The Solicitor General is raising his eyebrows at me, but if he looks carefully at schedule 5, as I am sure he has, he will see that it talks about the procedure for interpreting retained EU law. That is why I am revisiting these issues. I am also revisiting them because former Supreme Court judges Lord Neuberger and Lord Hope gave this evidence to the House of Lords after our discussions on clause 6(2) in this House. It is new evidence that the Government really should take away and look at before Report.

[Huw Merriman]

In a former career, I would take cases and seek direction from the courts on what they believed the law, or previous cases, were intending. Courts and judges are used to exercising discretion. Clause 6(2) makes it quite clear that they may do so if they consider it appropriate, in the same way they can refer to Commonwealth judgments if they believe that to be appropriate. I do not recognise the picture of the judiciary that the hon. and learned Lady is painting.

[Joanna Cherry]

I recognise it, because in my former career I appeared regularly in the Supreme Court of the UK and the supreme courts of Scotland. The hon. Gentleman may not recognise my concerns, but if he shares my professional background, he should recognise the concerns of senior members of the serving judiciary and the retired judiciary. These are very real concerns. They are telling us that clause 6(2), as currently drafted, on how they will be directed to interpret retained EU law after exit day, does not give them the clarity they desire and would leave in their provenance issues that are political and economic, and factors that, to use Lord Neuberger’s words, are rather unusual for a judge to have to take into account. This is complicated.

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[Mr Leslie]

I am sure my hon. Friend the Member for Brent North (Barry Gardiner) can speak for himself; he has done in the past and will do so again. I take the view that we should not shilly-shally on this issue, but stand up and say that there are risks to business and to our borders from our ports and airports being clogged up. We should also say that there is an economic cost—revenue costs for the Treasury—that could mean years of Brexit austerity ahead. All hon. Members, whichever side of the House we are on, need to recognise that some of the responsibility for these things will fall on our shoulders if we do not stand up now and say that staying in the customs union is the right way to proceed.

[Huw Merriman]

rose—

[Anna Soubry]

rose—

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[Helen Goodman]

I would like to speak first about new clause 13, because, for my constituency, the customs union is absolutely vital. I have a lot of constituents involved in manufacturing—pharmaceuticals and the automotive industry, for example. On pharmaceuticals, I think Glaxo told the Health Committee yesterday that the cost it has already faced in making plans for how to deal with Brexit is £70 million. We keep asking Ministers for certainty, and there is none.

For farmers, this issue is also absolutely crucial. There is a big risk with the free trade agreements Conservative Members are arguing for that we get floods of cheap lamb imports coming in. That will destroy the uplands. It will destroy not just farming livelihoods but the British countryside.

On the automotive industry, my hon. Friends have spoken about the importance of having shared regulation. How do Conservative Members think the European Union will agree with them to have no tariffs if it thinks that we are going to compete on different regulatory standards? It is not going to agree that. Conservative Members need to get into the real world.

Let us look also at the scope for these new great, fantastic free trade agreements, taking New Zealand as an example. Its economy is the same size as the Greek economy. This is not some great, fabulous opportunity. All that the New Zealanders and the Australians want to do—whatever sentimentality people have about the Commonwealth—is to sell their agricultural produce into the British market.

Conservative Members were enthusiastic about the idea that they could do these deals quickly. In fact, because other parts of the world also have regional trading blocs, that is highly unlikely. Latin American countries, for example, belong to a regional trading block called Mercosur. They are going to be going at the pace of the slowest, not the fastest.

The reason why I think there is a distinction to be drawn between the customs union and the single market is the Irish border. Membership of the customs union is vital for the maintenance of the soft border, in a way that membership of the single market is not. That is because of the nature of free movement. What does free movement mean? It does not mean being able to go somewhere on holiday. It does not mean Schengen—we are not in Schengen now. Free movement means being able to have a job and to take part in the social security system elsewhere.

The way to deal with the free movement problem, which is undoubtedly the immigration problem that has been raised by our constituents on the doorsteps over the last two years, is to change the rules about who can work and who can be eligible for social security in this country; it is to stop giving out national insurance numbers like confetti, as we do at the moment. I am therefore pleased that we have had this separate moment to look at the customs union, and I hope that hon. Members will reflect more carefully on the great significance of the customs union for achieving what we want in Ireland.

I must say that I am not yet reassured by what the Minister said at the Dispatch Box about amendments 381 and 400. When amendment 7 was passed last week, there was a shift in power from the Executive to Parliament. With amendment 381, whether or not it is amended by amendment 400, we are seeing the Executive yank back control to set the exit date. What Ministers have not been able to explain to us this afternoon is what happens if the legislation under amendment 7 is not passed. They can still set the exit date.

I was going to say that Opposition Members see the Tory party as extremely unstable. We are not convinced that this Government, in their current form, will last the course. However, I could not say that nearly as fluently or as lucidly as the right hon. Member for Broxtowe (Anna Soubry) said it. She laid out the problems and the divisions far more fully than I ever could. But even if we do not look into the future, we can all be alarmed by what the Prime Minister said to the Liaison Committee this afternoon. That is why we cannot be confident in what this Government are doing, and that is why amendments 381 and 400 fatally undermine amendment 7.

[Huw Merriman]

It is a great pleasure to speak in the last half hour of the 64 hours of the Committee stage of the EU (Withdrawal) Bill. I am absolutely delighted to speak in support of amendment 400. I congratulate my hon. Friends on putting it forward. We now have a position akin to article 50, whereby we leave no later than two years from the trigger date. We know when that date will be, but we retain the flexibility should it be required. That shows a great compromise across the House, demonstrating to us and to the public at large that we are capable of finding a way through where we had some discord previously.

I listened intently to the points made by Opposition Members about requiring the Government to honour their commitment on amendment 7. The Government have done so. I therefore ask all those Members that the rest of the Bill that has not been amended be honoured on that basis as well. I very much hope that they have accepted that reciprocal commitment.

I have sat through eight hours in this Committee, and the key thing that strikes me is the lack of optimism and ambition that I have heard. That in no way reflects the country at large, this being the day when it has been announced that, for the very first time, the UK ranks first in the Forbes annual survey of the best countries for doing business. If Forbes had been tuning into this debate, it may well have been wondering if it had got the right country.

The reality is that the world is changing. We must of course look for trade with our European partners. The Prime Minister has set out quite clearly that we want to continue to trade with mainland Europe and to purchase the goods that we have always purchased from it, and we will continue to do so. However, let us take Africa, for example. Germany and Spain have declining populations. Africa has 1.2 billion people at present; by 2050, that will have doubled to 2.4 billion. There are trade opportunities for us to take advantage of. Remaining inside the customs union, as new clause 13 would have it, would not allow us to take advantage of those opportunities.

[Wes Streeting (Ilford North) (Lab)]

rose—

[Huw Merriman]

I will not give way because of the lack of time.

This also misses the point that we trade as part of the EU under WTO rules with a number of countries, such as the US, China, Hong Kong, Australia, Russia, and Saudi Arabia. To say that we cannot continue to trade with those countries under WTO rules when we already do so as part of the European Union misses the point.

I now come to the real point that I wish to make. During the referendum campaign, unlike many Members in this place I did not take a view. I chaired debates but I did not take any view. Instead, I listened to the arguments going on from both sides. I dare say that right hon. and hon. Members who took a view were not listening to both sides because they were so passionate about their own. I cannot remember any individual who wanted to leave the European Union arguing, “I fancy a bit of what Norway has got. I would like to leave the European Union and remain within the single market.” The customs union has also been mentioned in that context, but of course Norway is not part of the customs union. It is quite clear to most members of the public—it was certainly made clear by those on both sides of the argument—that the EU is effectively a brand. The substance of the EU is the single market and the customs union. If more people voted to leave the European Union than to remain, which was indeed the case, there is a very fair chance that those people knew what they were voting for, and certainly did not want to leave and then return through the back door, as many hon. Members have suggested.

This is the key part for me. I really believe—I put this respectfully—that many in this Chamber are seeking to re-engineer the arguments to get them on their side because they do not want to leave. Even though most of them voted to trigger article 50, so they have chosen to leave, they now want to redesign the terms. They are seeking to have the public on their side by asking, as the hon. Member for Bath (Wera Hobhouse) mentioned, that the public are asked what they think—as if we have a spreadsheet big enough for that. The reality is that the majority of the public have voted to leave. They now look to the Executive to lead the negotiations, and they look to Parliament to support the negotiations and provide scrutiny, as it is doing. Ultimately, they want us to get on with the job and to be optimistic and ambitious about the future of this country, rather than sitting on our hands.

[Peter Grant]

I am grateful for the chance to contribute to tonight’s debate. First, I will deal with new clause 56, which is in my name and those of many other hon. and right hon. Members from across the House. I am grateful to everybody who supported the new clause, which is designed to give legislative certainty to the people and businesses of Gibraltar. Having heard the Minister’s comments—a long, long time ago now—my understanding is that the Government of Gibraltar are happy that the assurances they have been given provide the certainty they are looking for. On that basis, I do not intend to press the new clause to a vote, but I want to reserve the ability to bring it back at a later stage should the position of the Government of Gibraltar change.

We have heard a lot this afternoon and tonight about the wonderful opportunities for trade that await the United Kingdom if we leave the customs union and the single market. I welcome the fact that although the Minister repeatedly said that we would be leaving the customs union and the single market, he did not say—I listened very carefully—that we had to do so. He did not say that it was impossible to remain in either or both when we leave the European Union, even though a lot of people on the Brexit side have said that. That is simply not true; it is perfectly possible to leave the European Union without leaving those two trading agreements. The Government’s decision to leave them is purely political and it was not part of the referendum, despite what some people say. It is not yet too late for the Government to accept that that is a catastrophically bad political decision and that it should be reversed, even if doing so would come at a high political cost for some.

Earlier, we heard the right hon. Member for Chingford and Woodford Green (Mr Duncan Smith) justifying the need to leave the single market because the losing side in the referendum said that we had to. I am quite happy to go through some of the things that were in the losing Conservative manifesto in Scotland about what would happen if people voted SNP. If we are going to be bound by the promises that the losing side made, the SNP is in for a bit of a field day.

I still find it astonishing that there are Labour Members looking for a complete exit from the European Union. Only today, the Court of Justice of the European Union delivered a massive victory to Uber drivers and workers by ruling that Uber is a taxi business—surprise, surprise; that is what it is. The ruling has given Uber drivers massively better employment protection than they would have had without it. I cannot believe that any Labour Member would argue to remove those drivers from the protection of the European Court and leave their employment rights at the mercy of a Conservative Government, but that is what at least one Labour Member, the hon. Member for Vauxhall (Kate Hoey), argued for just now. I know that she is very much in the minority in her party, but I am astonished that a Labour Member can express such views.

The same hon. Member commented on how much of the UK’s trade is done outside the European Union. She forgot to mention that if we include the trade that relies on trade deals that the European Union has already made with big trading nations, more than 60% of the UK’s trade effectively depends on the European Union. When we build in the trade deals that the European Union is in the process of finalising, the figure increases to 88%. In other words, in a couple of years’ time, 12% of the United Kingdom’s overseas trade will not depend on our membership of the European Union. Twelve per cent. of our trade will probably be guaranteed, but the other 88% is up for grabs. Believe me, a lot of other trading nations will be very keen to nibble away at that 88%.

I want to comment on the confusion of the hon. Member for Edinburgh South (Ian Murray). His stamina also seems to have deserted him, although I cannot say that I blame him. He said tonight, as he has said on several occasions, that he cannot understand the contradiction between the Government’s statement that we can have free, open and easy trade across international borders, and their insistence in the run-up to the independence referendum in Scotland—where, by his own admission, he shared a platform with some people who are now on the Conservative Benches—that that would not be possible.

I can put the hon. Gentleman out of his misery. There is no inconsistency. What the Government are saying now is correct, and what they and he said in 2014 was complete and utter rubbish. There is absolutely no need, in today’s modern world, for an international border to be anything more than a line that demarcates the jurisdictions of different Parliaments, Governments and courts. That is how international borders are seen all over western Europe, and that is the kind of international border we should be seeking. It will be difficult if not impossible to maintain open borders, even the open border we want to maintain across the island of Ireland. It will be difficult to deliver what the people of Northern Ireland so desperately want to maintain if we leave the customs union and the single market.

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[The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)]

I call Suella Fernandes.

[Huw Merriman]

Last again.

[Suella Fernandes (Fareham) (Con)]

Saving the best till last, perhaps.

I rise to speak in favour of amendment 400, to which I am proud to have put my name. I applaud the constructive efforts and sincere energies invested in the amendment by right hon. and hon. Members across the Brexit divide, uniting our party and working in collaboration with the Government to improve the Bill and to reflect the genuine concerns voiced during that process. I pay tribute to the Front Bench team and the civil servants, as well as all those who have contributed to enriching the passage of the Bill during the extensive opportunities we have had for scrutiny, debate and discussion.

Amendment 400 represents a very sensible and pragmatic way forward in resolving some of the concerns raised. It provides legal certainty because, by placing the exit date in the Bill, we will have confirmed the time and date when the UK will be leaving the EU in accordance with article 50. It will ensure that the operative provisions of clauses 1 to 6 apply from that date, and it avoids a potential failure in the construction of clause 3 in that, if exit day was later than 29 March 2019, the conversion of direct EU legislation might fail. That is because clause 3(1) applies to such legislation only in

“so far as operative immediately before exit day”,

but that legislation will cease to be operative when we leave the EU in accordance with article 50. It also limits ministerial discretion, which, after all, is to some extent what Brexit is about. Brexit is about restoring power to Parliament and about giving elected representatives a say. Finally, the amendment complements those two objectives by providing a degree of flexibility on the exit day. The Prime Minister confirmed earlier today that the date might be changed only in exceptional circumstances and for a short amount of extra time.

I want to comment on the Bill more generally. I think that 2017 has been an extraordinarily successful year for Brexit. The Government have triggered article 50, supported by a convincing and large majority of this House. The Prime Minister has moved us on to phase 2 of the negotiations, and we are now at the point of discussing the exciting and new opportunities for future trade. The Bill has also been very successful in its passage.

I want to emphasise the fact that we are making progress. Everybody here in this House has been entrusted with the instruction from the British people to deliver Brexit. We want a smooth and a meaningful Brexit. That is an honour and it is also a duty. The British people are watching, and the world is watching. They might not be interested in the technicalities of constitutional law, or know exactly what the common commercial policy means, but they want us to get on with the job, and to do otherwise would be a gross betrayal of that duty.

We have to talk up the opportunities. We are the sixth-largest economy in the world. We have the world’s language. We are leaders of the Commonwealth. We have a legal system emulated around the world, a parliamentary system envied by other countries, and financial services that are unrivalled. Britain will succeed after Brexit, and we have to find ways in which we can deliver Brexit, not reasons why we cannot.