European Union (Withdrawal) Bill

Iain Duncan Smith Excerpts

Committee: 1st sitting: House of Commons
Tuesday 14th November 2017 Commons Chamber

[Frank Field]

The right hon. and learned Gentleman is such a good lawyer, but I wish he had read my new clause, because it notes the day rather than the minute that we will leave. Despite all the encouragement from Members behind me, I was so anxious to withdraw what I said about my right hon. Friend the Member for Leeds Central (Hilary Benn) that I forgot to address his substantive point, and the right hon. and learned Gentleman has reminded me to do so. If we look over our whole history in Europe, we will see that the idea that we finish any negotiations other than at the very last minute is almost unheard of. By including the time, we will be saying, “You will have to begin your shenanigans the month before rather than the month after.”

In conclusion, I am grateful for being allowed to move the second reading of this new clause, to remind people that it is part of a short exit Bill.

[Mr Iain Duncan Smith (Chingford and Woodford Green) (Con)]

I am grateful to the right hon. Gentleman for giving way, because I know he is concluding. I want to make a simple point. The whole argument about having flexibility falls when we look at article 50 itself. It was very specific for a very simple reason, which is that the timescale determines that those who are negotiating must reach, or agree not to reach, an agreement. Simply changing the timescale will not allow them to reach an agreement; they have the time to do it. That is the whole point about compression—to get an agreement. That is why the date was prompted by article 50.

[Frank Field]

I have one last point to make. I thought that my proposed new clause merely implemented article 50, which we all voted for, to tell our constituents that we had—[Interruption.] Well, apart from one Member who voted against triggering article 50. [Interruption.] Apart from two or three—[Interruption.] Were there any more than four? Perhaps there were five, six, seven or eight.

I thought that what I had to say was so uncontentious that my speech would last only five minutes. I apologise to the Committee for the time I have taken. All the proposed new clause does is put on the statute book the actual timing of article 50, which we voted for in overwhelming numbers almost a year ago. I move the new clause in my name and the names of those on the amendment paper.

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[Paul Blomfield]

There are some strands of fair comment in that intervention. We have tabled the amendments precisely because, in relation to our previous debate, we do not want the Government closing options down. If the jurisdiction of the Court of Justice is not clear during a transitional period, options would be closed down.

[Mr Duncan Smith]

Will the hon. Gentleman give way?

[Paul Blomfield]

No, I will not. I gave way many times during the previous debate, and I am conscious that many more amendments relate to this clause.

[Mr Duncan Smith]

Will the hon. Gentleman give way on his point about the Court of Justice?

[Paul Blomfield]

I have said no. I want to give others the opportunity to speak. I took every single intervention in the previous debate—except perhaps from one of my hon. Friends towards the end of my speech—so I want to make some progress.

The Government have a choice to make today—[Interruption.] I wish hon. Members would stop chuntering. The Government have a choice to make, and they have to make it in relation to our amendment 278.

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[Mr Kenneth Clarke]

The Minister is being very helpful on one aspect of the Bill, which is how the Government think European law should be interpreted once we have finally exited, but he is sidestepping the key point put to him by the right hon. Member for Leeds Central (Hilary Benn). As it stands, clause 6 does not reflect current Government policy. It is not putting the cart before the horse to ask whether current Government policy, as represented in the Florence speech, should be reflected in the Bill. The fact is that the Government are seeking, expecting or contemplating the real possibility of a transition period during which we will stay in the single market and customs union and be subject to the jurisdiction of the Court. Why is the Bill being presented and urged by the Government in terms that are totally—

[Mr Duncan Smith]

They are not!

[Mr Clarke]

They are. It may not be agreed by Eurosceptics, but that is Government policy, supported by the official Opposition. Why is it not in the Government Bill?

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[Dominic Raab]

I am going to make a little bit more progress. I have given way to my hon. Friend.

The singling out of these areas of law appears somewhat arbitrary, given other fields the amendment might equally apply to. It would lead to a splintered approach to interpretation of the law and a fragmented UK jurisprudence—more uncertainty, not less. In any case, it is totally unnecessary. The UK has a proud history of ensuring the rights and protections of individuals in this country. The UK has high standards of protection domestically in relation to workers’ rights and human rights. We are recognised as a world leader in delivering robust, rigorous health and safety protections. That record and that commitment is not dependent on our membership of the EU; it is dependent on hon. Members in this House and their eternal vigilance. It will continue to be dependent on that after we leave. I hope that the right hon. Member for Islington North (Jeremy Corbyn) and his colleagues in the Labour party will not press amendment 306.

Finally, I turn to amendment 358 tabled by the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), which sets out the ability of UK courts to have regard to material used in the preparation of retained EU law. I hope that this is the point at which I give some reassurance to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). Currently, when interpreting EU law domestically, our courts will look at the language used, as well as considering the legislation’s recitals, legal basis and other language versions to inform their interpretation. We do not want to change how this law is interpreted or to create any fresh uncertainty about its meaning, so the Bill provides for the courts to continue that approach. Clause 6 provides that questions on the validity, meaning or effect of retained EU law will be decided in accordance with retained case law and general principles of EU law. This requires taking a purposive approach to interpretation where the meaning of the provision is unclear, considering relevant documents such as the legislation’s treaty legal base, working papers that may have led to the adoption of the measure and the general principles of EU law. I hope that reassures my hon. Friend the Chair of the Select Committee and that he will not press his amendment.

[Mr Duncan Smith]

My hon. Friend is making a powerful case on each of the amendments, but I am among those concerned about the confusion around the cut-off line. The general principles he just talked about will shift and change. Is there a point by which, when we reference the principles and those principles have changed post-exit, we do not consider them to be the principles we referenced rather than the principles that existed before and are now not modified? At what point do we have the cut-off point?

[Dominic Raab]

My right hon. Friend raises an excellent, if rather esoteric, point, but it is also fundamentally about clause 5 and schedule 1. If he can be patient, we will turn to that next week and, I hope, address all his concerns.

To sum up, I hope that I have at least sought to address all the underlying concerns in each of the amendments and, given the need to maximise legal certainty, minimise confusion and ensure a smooth transition, that all hon. Members will make sure that clause 6 stands part of the Bill unamended.

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[Joanna Cherry]

The Solicitor General is absolutely right to correct my rather loose use of language. My point is that the majority of references made to the Court of Justice are made as a result of litigation between individuals or businesses to determine their respective rights rather than, as the Government’s position paper suggested in the summer, between the United Kingdom and the EU. That is not my view; that was the evidence of Professor Sir David Edward, who gave evidence on this topic to the Scottish Parliament in September. He was keen to impress on people that EU law is about the determination of individuals’ rights.

[Mr Duncan Smith]

That interchange was quite correct, but does the hon. and learned Lady also accept that the process of making those judgments is where the Court of Justice has widened the interpretation of the treaties by using individual cases that were sent to the Court for clarification?

[Joanna Cherry]

That is what modern courts do. If the right hon. Gentleman cared to study the jurisprudence of the supreme courts of the United States, Australia or New Zealand, he would find that that is what courts in adversarial jurisdictions do. I sometimes wonder whether the right hon. Gentleman’s real objection, and those of his ilk on the Government Benches, is not to the European Union, but to the very idea of courts and the rule of law itself.

Anyway, as well as creating legal certainty and protecting the judiciary, amendment 137 is also important for protecting individuals’ rights. If the UK’s courts do not pay due regard to decisions of the Court of Justice, there will be no provision to ensure that rights in the United Kingdom keep pace with EU rights after Brexit or even to encourage that to happen. That could lead to rights upheld domestically lagging behind international standards, which I am sure we would want to avoid.

[Joanna Cherry]

I agree with my hon. Friend, and that is probably why the TUC supports my amendment.

To keep rights up to similar international standards is particularly desirable in areas that require a degree of co-operation and reciprocity, such as consumer rights, equality protections and environmental standards. The Exiting the European Union Committee, of which I am a member, has heard much evidence recently about the importance of preserving rights protections after Brexit. EU case law has had an important impact on equality rights in the UK, and my amendment seeks to ensure that British courts will continue to pay due regard to that jurisprudence as our law develops. I urge all hon. Members to give amendment 137 their support in the interests of achieving legal certainty, protecting the rule of law, protecting the judiciary from political attacks and protecting our constituents’ rights.

I turn now to pending cases and amendments 202 and 203, which I am grateful to the Law Society of Scotland for drafting. There is currently nothing on the face of the Bill about what will happen to litigation pending at the time of exit day. There just is not anything. If there is, I am sure a Minister will point me to it later.

As the right hon. Member for Chesham and Amersham said, this is all about legitimate expectations. As I said when I intervened on her, if the Government do not move in the Bill to protect the legitimate expectations of litigants, they could find themselves being litigated against for failing to provide an effective remedy.

Of course, it would be objectionable on the ground of retrospectivity if a simple cut-off happens on exit day and if no consideration is given to pending cases, as other hon. Members have said. Such a situation is not without precedent. As I said in my intervention on the Minister of State, Ministry of Justice, the hon. Member for Esher and Walton (Dominic Raab), one precedent is the way in which the transition from the Privy Council to the New Zealand Supreme Court was dealt with, and I urge the Government to look at that. I urge all hon. Members carefully to consider the amendments designed to protect pending cases and pending litigation on exit day.

[Mr Duncan Smith]

I have not tabled any amendments, but I will briefly comment on one set of amendments before making a point about the drafting of clause 6. For me and many of my colleagues, that is the most important clause because the clear definition of being in or out of the European Union ultimately comes down to the Court of Justice’s ability to change the United Kingdom’s laws by direct reference as a result of a clash with European law.

Twenty-five years ago, I stood in almost the same place, during the House’s consideration of the Maastricht treaty, to make the point that the Court of Justice is more political than courts in the UK, even by its appointments and by the nature of its judgments. Judicial activism is a process that came directly from the Court of Justice, and it eventually percolated, to a much lesser extent, into the UK courts.

It is through those judgments that the Court of Justice has widened the concept of where the Commission is able to rule. A good example is that, through Court reference, whole areas of social security that were never in the original treaties were widened dramatically. Rulings have been made on the application of social security payments to individuals from countries that were never referenced in the original treaties, which is a good point about the Court’s power.

This is so critical because, after the referendum, the Centre for Social Justice, the Legatum Institute and others came together to do a lot of polling asking the public why they supported the vote to leave the European Union. The single most powerful reason—more than money and more than migration—was to take back control of our laws. I was slightly surprised because I thought it was an esoteric point for most members of the public, but they said it was their most powerful reason for voting. Some people said that, even if it meant they would be worse off for a period, it was still the overriding principle behind their vote to take back control and leave the European Union.

With that as the key, the Government are right to drive this policy. It is absolutely right for them to make it clear that, on the day we leave, the European Court of Justice will cease to have direct effect in the United Kingdom. I will return to the drafting on how long some of the other principles will continue.

The hon. Member for Nottingham East (Mr Leslie) is not here at the moment but, in line with the earlier statement by the Minister, my hon. Friend the Member for Esher and Walton (Dominic Raab), it would be wrong to support new clause 14 and amendment 278. There is a simple principle behind the Bill, and the Government have now accepted that there will be primary legislation on the agreement, or lack of agreement, as we leave the European Union with regard to our trade and other arrangements. The new clause and the amendment are wrong because they would seek to bind the hand of the Government as they sought to negotiate, and that is not the purpose of this.

Let me give an example. Not so long ago, the Secretary of State for Exiting the European Union said clearly that his view was that during the implementation period—at the beginning, we hope—we would want to have those elements of the eventual agreement in place. One of those would be a process of arbitration between the UK and the EU. If that was agreed and was part of the process, and then became part of the implementation period, the new clause and the amendment would prevent our being able to make that arrangement—they would be bound into law and we would not be allowed to go into the implementation period with these arrangements. That would immediately knock out any opportunity we have to accelerate the process of where we would eventually be by getting into the implementation period and applying an arbitration process agreed between the EU and the UK for those areas of disagreement on areas of law and other interpretations. That is why these proposals are wrong and would damage the prospects of the negotiations that are likely to take place.

[Wera Hobhouse]

I asked a couple of days ago about this idea of an arbitration court. Now that the right hon. Gentleman is here, will he clarify how it would be different for ordinary people in the street in comparison with what the ECJ is currently doing?

[Mr Duncan Smith]

The whole process of arbitration is a natural one in all trade arrangements between two different groups: they agree to an arbitration process when there are clashes of interpretation about what they have agreed. That is standard practice; it has been in pretty much every free trade arrangement.

If we seek a free trade arrangement, the way to have that governed is through such an arbitration process, where differences—when things cannot be agreed between the two—are taken for a final process of examination and some kind of judgment about the matter. That would not be done by the Court of Justice sitting in the European Union, or by a UK court; it would be outwith both of those, but in the agreement.

The point I am making is that if such an arrangement was agreed in a free trade arrangement, we would want to start it as soon as possible, because if there is an implementation period, we would want to start implementing what we have agreed as soon as possible. The hon. Lady needs to look up most of the other trade arrangements to see what I am saying. We want to give the greatest flexibility to the Government. It is crucial that as we leave, we leave the Court of Justice in that sense.

I want now to deal with some of the arrangements in clause 6. I say to Ministers that there is a certain amount of confusion over where the courts are meant to reference the ECJ, including in respect of its previous judgments. As has been mentioned by some of my colleagues, including my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), there remains a confusion as to where the courts will reference judgments from the ECJ, both past and existing. I come back to the point of clause 6(2), where they are told not to have regard to anything. However, the Bill later goes on to modify that quite a lot. I am particularly concerned—this has been raised elsewhere—by the definition that

“’retained EU case law’ means any principles laid down by, and any decisions of, the European Court, as they have effect in EU law immediately before exit day and so far as they”.

The Bill goes on to reference exactly how that will work.

My point is that those principles will themselves be modified by the European Court of Justice as it goes forward. My question really is: as they are modified, at what point will UK courts consider those principles to be no longer relevant to their judgments as they refer to them? I do not expect an answer right now, but I hope to get one as we go forward. Lord Neuberger has made the point that it is unclear to the courts how strong their reference should be—whether they should reference the principles or not. The point about the principles is the more powerful point, because I have no idea when the cut-off comes or whether it ever comes—whether we will ever break free, as it were, from continuing judgments and changes to the European Court principles.

[Mr Grieve]

My right hon. Friend makes an important point, but I wish to emphasise that my own concern is not about retaining EU law in some way, but about getting some clarity, which is certainly not in the Bill. My right hon. Friend may agree that from listening to the Government it does not appear that they are particularly concerned about this matter—yet the judiciary plainly is, and the House cannot ignore that.

[Mr Duncan Smith]

I agree with my right hon. and learned Friend. It is important that during this and future debates—we will have the opportunity to return to this issue in the debate on clause 5—my right hon. and hon. Friends in the Government take due regard of this issue. The courts have already said that they are unclear and want clarity. It is not always usual for courts to come back and say that they want us to decide, but on this matter they really do. That is important, because there has to be a future point at which they understand that they do not have to have regard to any change in the European Court principles.

I urge my right hon. and hon. Friends in the Government to make that point very clear in the course of this process, and I look forward to their response. I think the Minister, my hon. Friend the Member for Esher and Walton, said that he would return to this issue in the discussions on clause 5, and I would certainly appreciate that.

I know that other Members wish to speak, so I shall conclude. I applaud and support the Government on this part of the Bill. For me, and I think for most of our colleagues, it is the most important element. We can debate money and all these other issues, but who ultimately decides on our laws is the most important element of the vote to leave. I made this point earlier, and I conclude by making it again: the single issue on which the British public voted most was to take back control of their laws. I want that to happen as we leave the European Union.

[Helen Goodman]

I am pleased to follow the right hon. Member for Chingford and Woodford Green (Mr Duncan Smith), because his remarks about a new arbitration system relate very much to the points I wish to address.

When I consider the Bill, my overriding concern is the impact on the economic wellbeing of my constituents. Members know that the north-east is a successful exporting region. Part of the reason why we have been so successful is that we have had a stable legal framework over the past 40 years. The Bill’s purpose is obviously to provide continuing legal certainty, but it seems to me that the combination of the Government’s proposal to set the exit date before the transition period is over, and their red line on the ECJ, will have the rather remarkable effect of minimising the flexibility for negotiation and maximising the legal uncertainty.

I very much support amendments 278 and 306, to which my hon. Friend the Member for Sheffield Central (Paul Blomfield) spoke, and new clause 14, tabled by my hon. Friend the Member for Nottingham East (Mr Leslie).

Earlier, I asked the Under-Secretary of State for Exiting the European Union, the hon. Member for Wycombe (Mr Baker): if the 1972 Act is repealed before the end of the transition or implementation period, what will be the legal basis of our relations with the EU in that period and of the 57 free trade agreements that the EU negotiated with third countries? He said, “Don’t worry, it will all be set out in the next Bill, which will come in perhaps a year or 18 months.” I am sorry to say that I do not find that very reassuring. I am conscious that businesses want an element of legal certainty about the transition period as soon as possible. Waiting for another 12 months, or another 18 months, does not give them that legal certainty, which means that they can continue to close plants and divest. We are already beginning to see that. Frequently, it is not being flagged up as being about Brexit, but it is happening rather too often.