Retained EU Law (Revocation and Reform) Bill

Iain Duncan Smith Excerpts

Consideration of Lords amendments
Wednesday 24th May 2023 Commons Chamber

[Mr Rees-Mogg]

It must be said that my right hon. Friend was an excellent Secretary of State who was enormously co-operative with me, when I was in the relevant role, in trying to get DEFRA to be positive about this at a time when, as he rightly says, it was carrying a huge burden of work.

The problem is that we cannot shy away from the difficult decisions. That is what government is about, as in the old cliché “To govern is to choose.” Nature Britain, or Natural Britain, or whatever it is called, has prevented 160,000 houses from being built because of the nutrients rules resulting from a decision made by the European Court of Justice in 2018. It is all very well for Opposition Members to say that we should keep every environmental rule we have ever had, but I want my constituents to have houses, and I want other people’s constituents to have houses. We should be making those choices and putting the case to govern. That, I am afraid, is at the heart of this: a lack of decisiveness, of drive, of backbone to get things done.

I agree with my right hon. Friend that there would have been some things that were difficult. That is why the Bill contained provisions to roll things over and to say, “If you can make a good case for why this must stay, it will stay”, but the default was that it would be removed. I have mentioned the nutrients problem, and the habitats regulations are another example of rules that stop us doing things that are environmentally friendly and would benefit the environment because there may be some habitat nearby. I had to delay a decision on using waste to provide energy because of the common seal. Well, the very name of the common seal demonstrates that it is common, and that we should not be worrying about it too much when we could do something that would be enormously environmentally beneficial. The habitats directive is too dirigiste, too continental in its approach to regulating how we operate and how our economy runs.

I have already mentioned novel foods, but what about the other advantages for a modern, knowledge-based economy? What about clinical trials? I cannot tell you, Mr Deputy Speaker, how pleased I am to see my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) lurking by the Chair, because he produced a brilliant report explaining how some of these things could be done. Why have they not been done? Did the Bill not offer a perfect opportunity for us to do them? Instead, people are appealing against rules relating to anchovies, and that really seems to me not to be the Gentleman’s Relish that we would desire. This is a loss of opportunities—an opportunity for economic growth, and also an opportunity to move away from the civil code approach to law to the common-law approach, which is fundamental.

We see this in other emerging legislation. I hope you will forgive me, Mr Deputy Speaker, for a brief digression. The monstrous Energy Bill is all about regulating rather than allowing. What the repeal would have done, had it gone through, was to allow rather than regulate. This is based on the principle that wise bureaucrats—I praised civil servants earlier—really understand how business can best operate, if only people will follow the rules of those bureaucrats. What we want, according to our tradition, is an approach that says it is legal to do something unless it is specifically dangerous.

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

The taskforce on innovation, growth and regulatory reform report produced over 100 recommendations for the Government, but the big case it made was for moving regulation making from what is essentially a coded base and returning it to a common law basis, which—exactly as my right hon. Friend was about to say—is, “It’s okay unless it turns out that it is damaging.” That is how our courts work, and it is the best practice in the world. That is why we should have made that progress.

Legal Advice: Prorogation

Iain Duncan Smith Excerpts

Wednesday 25th September 2019 Commons Chamber

[The Attorney General]

If the right hon. Member for Delyn (David Hanson) is so confident that his electorate will consider that his moral right to sit here is so strong, why does he not submit it to them now? All we need—I offer this to the Labour Front Bench—is a one-line Bill, which we could put through with Mr Speaker’s help, to fix the date of a general election by a simple majority, and we could have the election. Why does he not tell his Front Bench to put his confidence in his constituents to the test?

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

I wonder if my right hon. and learned Friend, having read the full summary of yesterday’s judgment by the Supreme Court, was also struck by something that seems to be missing within its methodology. When it stood up, it said, for the right of Parliament to hold any Executive to account, at no point did it reference that one of the ways of avoiding or dismissing a Prorogation would have been to pass a vote of no confidence in the Government or to vote for a general election. Does he agree that that would have been a sure-fire way for the Opposition parties to secure an end to any Prorogation and an immediate change of Government, if they so wished, but that they were frightened?

[The Attorney General]

I entirely agree with my right hon. Friend. In our constitution, when a Government can no longer govern because Parliament has withdrawn its assent, the moral and constitutional thing to do is to have the courage of your convictions, which this spineless gang on the Opposition Front Bench do not, and to table a motion of no confidence, but they have not got the guts to table that motion of no confidence because most of them do not want their own leader in power.

Section 1 of the European Union (Withdrawal) Act 2019

Iain Duncan Smith Excerpts

Tuesday 9th April 2019 Commons Chamber

[The Solicitor General]

I am grateful to my hon. Friend. I think he is absolutely right about the way in which the European Parliament is constituted. It is due, I think, to rise on 18 April, but it does not cease to exist—it does not dissolve in the way that we do. That is important in terms of ratification, because section 13 of the withdrawal Act that we passed obviously includes that requirement as well.

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

I just want to clear up something that I heard my hon. and learned Friend say. I think I heard him say at the Dispatch Box that it was wholly feasible that the Government may actually end up fighting the European elections, then only after that not allow its MEPs to take their seats—say they had been given an extension, but somehow we had managed to ratify the deal. Is that correct? Is it Government policy that we would go as far as to fight an election but not take our seats at the end of it?

[The Solicitor General]

My right hon. Friend is right to ask about that detail. I think that we are obliged, as a matter of law, to prepare for European elections, but if we have exited the European Union by the end of June, we are no longer a member but a third country. Therefore, the requirement to take our seats in the European Parliament would have ended.

United Kingdom’s Withdrawal from the European Union

Iain Duncan Smith Excerpts

Friday 29th March 2019 Commons Chamber

[Sir William Cash]

I very much agree with my hon. Friend. Indeed, I will go further and say that the change of gear between 26 June, when the withdrawal Act received Royal Assent, and 12 July, when the White Paper that followed the Chequers proposals was published, demonstrated bad faith, because it must have been pre-planned while the withdrawal Bill—which I thoroughly agreed with and gave the Government every conceivable assistance in getting through––was going through Parliament. The reality is that it was produced only 10 days later, so we need only ask how the Government could write an 80-page White Paper without planning it some months in advance.

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

My hon. Friend knows that I revere him when it comes to constitutional law. I wonder whether, in the course of his argument, he is not slightly making the case that we need to get to the implementation Bill, because only when we can debate that Bill will we be able to decide what protections are left. I would love to hear him speak to the Bill, because I will certainly support his amendments.

[Sir William Cash]

My right hon. Friend makes a very good point. That is why I have just asked the Attorney General for an assurance—he did not answer my question—that if the withdrawal agreement is not approved today, the Government will bring in the Bill anyway. A lot of people are telling me, as Chair of the European Scrutiny Committee—I am pleased to see the Leader of the House shake her head—that if this agreement is rejected, it will not be followed by a Bill. Is that crystal clear? I look to the Leader of the House for confirmation. Is it quite clear that there will be no Bill if this agreement is rejected? She does not answer.

The European Council decision is yet another example of the manner in which this great country has effectively capitulated to the demands of the European Council. That is one of my greatest objections to the motion. Last March—a whole year ago—the European Scrutiny Committee produced a report stating that we should never have accepted the sequencing or the terms of reference laid down by the European Union. That was capitulation, not compromise. It is so important that the House recognises that in the vote today.

--- Later in debate ---

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

It is a pleasure to follow the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), but he will forgive me if I do not follow him completely, as we would never finish this debate.

I wish to apprise the House of my view of this motion. As my right hon. and learned Friend the Attorney General said, it is not the motion we have already voted on; it is a different motion. [Interruption.] I will make no excuses about that—it is a different motion. Opposition Members agreed that, so I do not know how they can laugh.

Today, I will support the Government for the very simple reason that I think nothing huge has changed in the nature of the Bill that is likely to be presented, or even in the withdrawal agreement. What I do think has changed, however, is the balance of risks, and as politicians—not lawyers—we must apprise ourselves of what that balance amounts to and to what degree we owe it to ourselves to make those decisions.

Since we had the two-week extension we now face a choice about what is likely to happen. Some of my colleagues genuinely believe that if we vote down this agreement we will go to 12 April, and we will not get an extension from the EU. I find that difficult to believe. If we consider what the EU has already said—Mrs Merkel and various others—we see that they really want to keep the UK inside the EU. One way or the other, they would rather have us in, even if it is troublesome at this stage. I genuinely believe that by 12 April we will be offered—or it could even be demanded of us—an extension of at least two years that will require us to fight the European elections. I do not know how I can go on to doorsteps, having campaigned to leave the European Union and support 17.4 million people, and tell them not to worry because even if we are not leaving right now, we might leave a little bit later. That is simply inexplicable, and I genuinely do not believe that that is what I campaigned on or for.

Some people have said that an extension does not really matter because we will be able to stay in the EU, make those negotiations and get those changes, and we will be in control because we will have votes and an ability to take that control. All I say is that I voted against the Maastricht treaty 26 years ago, and I have always maintained that we have never had real control. If we have had so much control for 40 years, why are we now trying to get out of a European Union that has extended its power and competence year in, year out?

[Kevin Brennan (Cardiff West) (Lab)]

rose—

[Mr Duncan Smith]

I hope the hon. Gentleman will forgive me but I want to finish my point. I will give way just once because, as Mr Speaker says, we want to try and keep this short.

I believe that the way to stand up for the 17.4 million is to get to the Bill. As I said to my hon. Friend the Member for Stone (Sir William Cash), whose knowledge of constitutional law I revere, Bill needs to get to the Bill. We will then look to see which of the issues raised by the Attorney General are in the Bill and how they protect us. What can we ensure is in the Bill? We can then make a judgment about whether it represents the way that we believe we should leave the EU, and my hon. Friends need to consider that issue immediately.

[Kevin Brennan]

On 3 March the right hon. Gentleman stated on his website:

“British Governments have lied about the EU for decades. This deal is the final deceit”.

Yet he is going to vote for it.

--- Later in debate ---

[Mr Duncan Smith]

My simple point is: absolutely. There has been a trail of deceit on both sides of the House and by different Governments. The judgment I make today is about the balance of risks. I believe that the one saving grace of this process so far is that we will repeal the European Communities Act 1972, and that means we will have left the European Union. That is the single issue I accept because, as my hon. Friend the Member for Stone said, we must get to the Bill and figure out how that provision is protected. Is it the default mechanism?

[Several hon. Members rose—]

[Mr Duncan Smith]

I will not give way because others wish to speak.

Is the Attorney General’s comment correct that this is the right place to be? I want my Government not to be deceitful and to own up about whether the Bill will protect those rights and for my right hon. and hon. Friends to make that judgment when we have seen the Bill.

This is an opportunity for us to get that process going. If we do not, we go to 12 April, and in that case we have only the simple statement that we will extend the date for leaving the EU. An extension is death in terms of our voters—the people who put us here and who wanted us to get this through. I ask my right hon. and hon. Friends to look around. Every one of the speeches made, even the interventions, has demanded an extension to 12 April because people know we will get that extension. This is important. We are in a Chamber of people who really do not want to leave the European Union at all.

I know and honour my hon. Friends who have fought and campaigned to get this agreement changed, but we must recognise that we need to take hold of the one element that gets us out of the European Union, leaves us out and shuts down the debate about future referendums. That will allow us to be confident that, under a new leadership, we can go forward to change the nature of this process.

In conclusion, I say to my colleagues that for me this is not an easy decision. There is a lot about the withdrawal agreement that I do not like, and I stand by that position. However, if we do not go forward to consider the Bill, we will rue this day because we will end up having to accept what I believe will be a damaging and destructive extension that means we never leave the European Union. If we say that we stand up for 17.4 million people, we must get those people what they asked for, which is to leave the European Union, and this is now the only way.

--- Later in debate ---

[Mr Grieve]

I am always willing to consider compromise, but, as I said before, compromise has to come from a settled intention to respect an outcome. I have to say that there is no such settled intention, certainly among many Members on the Government side of the House. I listened to the speech of my right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith). It was quite clear from what he said that his purpose will be to use the passage of the WAB to re-order entirely the future relationship in the way he wants. I do not disagree with that—it is his right—but it highlights why separating the two is plainly, in my judgment, impossible. Yet that is what we are being asked to do.

[Mr Duncan Smith]

I hope that my right hon. and learned Friend is not asserting that it is wrong to want to amend or debate the Bill. But getting to the Bill is of vital importance—there is nothing sinister about that, surely.

Withdrawal Agreement: Legal Opinion

Iain Duncan Smith Excerpts

1st reading: House of Commons
Tuesday 12th March 2019 Commons Chamber

[The Attorney General]

The hon. Gentleman asks me about my opinion. He knows that my opinion is that there is no ultimate unilateral right out of this arrangement. The risk of that continues, but the question is whether it is a likelihood, politically. One thing that we did not hear from him is what the Labour party’s position is on the backstop. Does they accept the backstop? Do they think it is a good thing? If they think it is a good thing, why on earth are they criticising it? Or is this just the usual political opportunism that one expects to hear from the Front Bench of the Labour party?

The hon. Gentleman says to me that there is nothing new in this agreement, but that is not so, and some of the authorities that he has quoted are saying that this morning. There are material new obligations—for example, in relation to alternative arrangements. There is now a heavy emphasis upon a swift and expedited track to negotiate them, and it would be unconscionable if, having made that emphasis and having said that time was of the essence, the European Union simply refused to consider or adopt reasonable proposals relating to alternative arrangements. That is new. What this document does is address the risk that we could be kept in the backstop by the bad faith and deliberate manipulation of the Union. This makes significant reductions in that risk.

I say to the hon. Gentleman that it would be a good thing if we could hear from the Labour party just occasionally not only political shenanigans but some sincere engagement with the real issues that this withdrawal agreement now raises. The question now is: do we assume our responsibilities as a House and allow not only this country—yearning as it is for us to move on—but the entire continent of Europe to move on? To do that, the time has come now to vote for this deal.

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

I welcome my right hon. and learned Friend to his place. He has shown absolutely that he is what he should be: an independent adviser to the Government. I congratulate him on that, because that is exactly what he should be. Given the clarity of his advice, I want to ask him a particular question. As he will know, I and others have spent some time looking at and working on alternative arrangements. I would like to clarify exactly what force he thinks those would have. As he said just now, there would be an obligation for the European Union to “consider or adopt” such proposals if they were made in a reasonable way. How does that square with his paragraph 16, in which he says

“it would be highly unlikely that the United Kingdom could take advantage of the remedies available to it for such a breach under the Withdrawal Agreement”?

[The Attorney General]

My right hon. Friend has got paragraph 16 wrong, if I may respectfully say so. What it says was that I advised in the past that that was so. What I now consider, at paragraph 17, is:

“that the legally binding provisions of the Joint Instrument and the content of the Unilateral Declaration reduce the risk”

that we would be held involuntarily and by the bad faith. Why? Because these new provisions make it easier to facilitate an effective claim to the arbitrator that that conduct is being exhibited. Those are cumulative. If one looks at the agreement as a whole, one sees that the obligations on the Union are to treat with urgency the negotiation of alternative arrangements. There is a new obligation that has not existed before in any document that the Union has agreed to, which is that it must aim to do this within 12 months of our withdrawal. That is an important obligation, because it makes time of the essence. If that deadline is passed, as in any legal jurisprudence on such matters relating in a domestic context to breach of contract, for example, that means that the parties must demonstrate that they are intensifying their efforts. If they do not, they could be in breach of their best endeavours obligation.

Withdrawal Agreement: Legal Position

Iain Duncan Smith Excerpts

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

I have the greatest respect for the hon. and learned Lady. She has put her case rationally and reasonably, and I will deal with her points one by one. She asked whether there was anything to prevent the protocol from becoming permanent in the event of no agreement. As a matter of international law, no there is not—it would endure indefinitely, pending a future agreement being arranged—but that does not exhaust all the matters of law. As a matter of EU law, it would, in those circumstances, be highly vulnerable to legal challenge. It is widely accepted, including by the EU Commission and taskforce 50, that article 50 is not a sound legal foundation for permanent arrangements between states. If negotiations irretrievably broke down, the protocol would de facto become permanent and therefore seriously challengeable in the Court of Justice of the European Union for being invalid. That legal uncertainty by itself is sufficient to promote to the EU the need to do a deal with us. It would be profoundly detrimental to thousands—indeed millions—of traders throughout the single market. That is one factor that convinces me that this is a risk worth taking.

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

I start by welcoming without reservation my right hon. and learned Friend to his position. He knows that I have believed for many years that he should have filled this post.

I welcome my right hon. and learned Friend’s statement. Page 6 of his document refers to what is defined as “good faith”. He mentioned the International Court of Justice, so I hope he will not mind if I quote from one of its judgments referenced in footnote 8. He talked about how long the backstop should last and what defined “good faith”. The judgment states that

“the failure of the Parties to reach agreement, 16 years after the conclusion of”—

earlier negotiations—

“does not itself establish that either Party has breached its obligation to negotiate in good faith.”

As my right hon. and learned Friend knows, his right hon. Friends on the Front Bench one by one have used good faith as their defence for being locked into this problem of the backstop and as their explanation of how we will get out. As a matter of law, is good faith required for best endeavours?

[The Attorney General]

The duty of good faith and to use best endeavours is a legally enforceable duty. There is no doubt that it is difficult to prove—[Interruption]—as I hear from a sedentary position, but that is not to say that it has not been proven. The case reports of the International Court of Justice, as well as arbitral tribunals throughout the world, have recorded decisions where tribunals have found breaches of good faith duties. There would need to be clear and convincing evidence that the breakdown of communication was due to bad faith—I fully accept that—but if the EU refused to engage with us, strung out negotiations in a thoroughly unreasonable way or failed to observe reasonable time limits, those would be hallmarks of a possible case of breach of good faith. It is a meaningful legal obligation.

I remind the House that we are dealing here with the United Kingdom on one hand and the European Union on the other. Their reputations in international forums, and their reputations as a question of international law, are at stake. If you put your name to a solemn legal obligation to negotiate something in good faith within a certain time limit, it is a very serious obligation of which to acquit yourself: it cannot just be played fast and loose with.

European Union (Withdrawal) Bill

Iain Duncan Smith Excerpts

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

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

I seem to recall it was not so long ago that the right hon. Gentleman was in a coalition Government in which my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) insisted that we withdrew two regulations for every new one that we introduced. Does not that make the right hon. Gentleman a regulation cutter, like the rest of us?

[Tom Brake]

I remember that clearly. The right hon. Gentleman and I—and, I am sure, Labour Members—can confirm that there are regulations, such as those relating to the British Government’s role in running the railways in India, that it would be appropriate to get rid of, because frankly they are no longer relevant. I suspect that there are quite a lot of other examples.

I want to focus briefly on the EEA. At the start of the referendum campaign, those involved in the leave campaign advocated the Norway model. As it became clearer to them that that was not what they wanted, they moved on to the Switzerland model, with its 150 or so different agreements. Once they realised that that was quite complex, Peru emerged as the model they wanted to emulate, before they eventually settled on the idea of a bespoke deal. As we heard earlier, no one anywhere is willing to identify how such a bespoke deal would work or, indeed, whether it is even possible to put one together.

As other Members have said, it is clear that membership of the EEA does not in any way, shape or form match the benefits we get from being members of the European Union. It might provide an alternative—a step down from our current position, but without the consequences of our leaving completely—to the no-deal scenario. It is a poor substitute, but it is better than no deal. It would keep us in the single market but out of the customs union, and—this major sticking point was, I think, the reason why the leave campaign moved away from the Norway model—it would probably require a financial contribution. It would allow trade deals to be struck, so there are some advantages to it, which is why we will support new clause 22 if it is pressed to a vote.

I want to finish by focusing on the question of whether leaving the European Union automatically means that we also cut our links with the EEA. Articles 126 and 127 of the EEA agreement have already been mentioned. I have been involved in an interesting exchange of parliamentary written questions and answers about the EEA. When I asked what was required to formally withdraw from the EEA agreement, the parliamentary answer stated:

“As the Secretary of State for Exiting the European Union said when he addressed the House on 7th September, there is agreement that when we leave the EU, the European Economic Area Agreement will no longer operate in respect of the UK.”

I followed that up by seeking to identify who that agreement was with and why that would happen. The response stated:

“It is Government policy that we will not be a member”,

so it seems as though the Government have reached an agreement with themselves that we will automatically be out of the EEA. I would suggest that that is not a particularly high bar. Although article 126 makes it clear that we will leave the EEA, article 127 requires us to give notice in order to do so.

As an aside, if we are leaving the EEA, it would probably be courteous for the UK Government to at least talk to its other members, particularly EFTA members, just so that they are aware that that is what we are doing. As of last week, no contact had been made with at least one of the EFTA members. It might be appropriate for the Government to inform them as a matter of courtesy.

New clause 22 is very good, as it would provide us with an opportunity to keep some of the benefits of our EU membership without crashing out of the EU completely, and without seeking the mythical bespoke deal that I do not think anyone believes can be delivered in the timescales that the Government have to work towards. I look forward to the vote on that new clause.