Legislating for the Withdrawal Agreement

Jacob Rees-Mogg Excerpts

Monday 10th September 2018 Commons Chamber

[Suella Braverman]

The Bill will be introduced after Parliament has approved the terms of the final deal with the “meaningful vote”. In that context, the Bill will have a normal passage, like all other legislation. Of course, the views of parliamentarians will be welcome. The Bill can be amended, voted on and scrutinised in the normal way, but it will always be set in the context of Parliament’s approval of the final deal, which includes approval of the withdrawal agreement. Members will, I know, have taken the time over the summer recess to review this substantial document at greater length. Views and questions will have matured and crystallised, and I am therefore delighted to return to the topic today and listen to those views.

The Government’s objective in publishing the White Paper was to set out how we intend to legislate for the parts of the withdrawal agreement that have already been settled in negotiations: those relating to citizens’ rights, the implementation period and the financial settlement.

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

My hon. Friend has just referred to what has been agreed so far. Am I right in understanding that nothing is agreed until everything is agreed and that that remains an important principle?

[Suella Braverman]

My hon. Friend is absolutely right: nothing is agreed until everything is agreed. When I say that we have reached agreement with the EU on those sections—citizens’ rights, implementation and the financial settlement—I am talking about the legal text of the withdrawal agreement, which is in the form of a draft international treaty. Members will be familiar with the screeds of text that have been shaded in green. Progress has been made since the March European Council, which indicates agreement on the legal text and substance between the EU and the UK.

It would not have been appropriate for the White Paper to attempt to cover the parts of the withdrawal agreement on which negotiations have yet to be concluded. We will seek to keep Parliament informed as we make further progress, but let me make it clear that the withdrawal agreement Bill will be the primary means by which we give effect to the agreement, including any backstop arrangements for Northern Ireland and Ireland.

--- Later in debate ---

[John Redwood]

I suggest that the hon. Lady addresses those remarks to whoever she thinks said that, but I did not.

[Mr Rees-Mogg]

I was asked a different question, which was about the rights of EU migrants who come after we have left. I have always thought that those who are here before we leave should maintain full rights.

[John Redwood]

Indeed. I would not have expected anything else. I think that it is always better if people speak for themselves.

I am very worried by this drift. I am also worried by this whole so-called implementation period or transitional period. It is clearly not an implementation period, because there is nothing to implement as of today. Even if there is a moderately detailed political agreement, it will not be something we can go off and implement. I have become very nervous about the idea that we need another 21 months of uncertainty. I have heard a lot from remain about the dangers of uncertainty. I can see that going on for too long with arguments about our future is not terribly helpful. I think 33 months is probably quite long enough to have a good old argument and see whether we can get a decent set of agreements from the EU or not. I remain to be persuaded that there is something our talented Ministers can achieve in negotiations on 1 April next year, to pluck a date out of the air with no particular significance about it being April fools’ day. What is it that could be agreed on April fools’ day next year that could not be agreed now or in December? We still have seven negotiating months left. We have already had two years or more of negotiations. I would say that that was a fair enough test. I would also take the view that if there is not something at the end of 33 months that we like, then we should just say, “Fine, it is not to be. We will go off and do bilaterals on a regular basis on the things that are of mutual interest.” I suspect we would get along just fine.

That is, of course, how the 160 other countries around the world get on with the EU. They do not have a special trade arrangement. They are certainly not bound by EU treaties in most cases. There are those who are terribly worried about the fate of the trade deals the EU has with 60-odd countries. I can reassure them that I still have not heard a single one of those countries say they wish to lose that trade deal with the UK. Of course, in law it novates to both the UK and the rest of the EU, but it needs to be agreed with the other party to the agreement. I do not know of any country that does not want to allow us to novate. Of course, some say we could improve it and make it better—why not? It is a good idea to have a look at it, but until I am told of a country that has actually ruled out taking on one of these trade deals I think they are there for us to continue to enjoy.

What is more important is that if we got on and left, we could sign trade deals and implement them from April next year. There are a number of countries friendly to us who would like early trade deals. There are off-the-shelf trade deals that they might be interested in developing, which they have developed with others, that would get us off to a good start. I do not like the provision in the White Paper—I think perhaps the Minister did not quite grasp it—that says, as I understand it, for the 21 months they are proposing for transition we are not allowed to implement a trade deal with anybody else. I think we could discuss them and get them ready for signing—that kind of thing—but they could be brought into effect. I think it would be rather nice to get on with it and bring things into effect.

There are plenty of other things I would like to talk about, but there are many others who would like to join in. Let me sum up by saying that my worry about the EU withdrawal proposal is that I do not think Parliament will be very willing to put the legislation through without great clarity, as Labour has said, on the so-called partnership—the association agreement. For myself, I am going to need a lot of persuading, because I think the money is far too great and the transition delay, so-called, is far too long. I am also extremely concerned that we will give up one EU treaty only to sign up to another two, which look to me as if they will have many of the problems that we had from the original.

--- Later in debate ---

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

It is a pleasure to follow the thoughtful speech made by the hon. Member for East Lothian (Martin Whitfield), although I confess that I have many different thoughts.

Today’s debate on legislating for the withdrawal agreement is obviously covered in the White Paper, and it seems to me that it includes three key points. The first is the obvious issue of EU nationals. I have always thought that it is really important that people who are here lawfully, and who we allowed to come and invited to come, are protected in every possible way as if they were British citizens. We are not the sort of country that applies retrospective legislation, and as Conservatives we should have a particular admiration for people whose motivation is to improve their standard of living, and who have travelled halfway across a continent, legally and lawfully, to come to a country where they do not speak the language so that they can work hard to send money back to support their families. If that is not an admirable and Conservative thing to do, I do not know what is. It is not their responsibility that we have voted to leave the European Union. They came here under treaties we had agreed, and they will be entitled to remain here, because that is the type of country that we are.

[Dr Whitford]

Does the hon. Gentleman recognise that settled status does not confer exactly the same rights that those people have at the moment?

[Mr Rees-Mogg]

The rights that they have should be no better or worse than those of British citizens. We should not have a special category of people under EU law. The extra rights they have under EU law have been a mistake, and they have been granted by the European courts contrary to our intention. It is absurd that it is easier to bring in a dependant under EU regulations as an EU citizen than it is for a British citizen. That is not a fair law and, once we have left, it should not continue. People should have the same rights as the British, not better ones.

[Dr Whitford]

Does the hon. Gentleman recognise that the initial settled status offer meant that a European citizen who went abroad to work for two years would lose that status? The period has now been extended to five years, but that is not what applies to a British citizen.

[Mr Rees-Mogg]

We can be more generous. I am in favour of generosity to people who are legally here and who have made their lives in the United Kingdom. There must be some point at which, if they separate their lives from the United Kingdom and have not applied for British citizenship, the status might not be perpetual, but they should be looked after and protected, and we should always remember that they came here legally and that we are not a nation of retrospective legislation.

Like my right hon. Friend the Member for Wokingham (John Redwood), I think that other continental countries will reciprocate, because they are civilised nations. We are dealing with allies and friends, so this should never have been a topic of negotiation. We should simply have set out our stall and said what we would do. I am glad that it is now clear that in the event of our leaving on WTO terms, we will protect the rights of EU member state nationals who are living in this country. That is the first point on legislation on withdrawing from the European Union, and I am all in favour of generosity.

The second point is law, which was covered by my hon. Friend the Member for Stone (Sir William Cash), who has great experience in these areas. We were lucky that the Henry VIII clauses in the European Union (Withdrawal) Act 2018 were, by and large, removed, as they would have allowed all European law to have been brought back through the back door. It would have gone out through the front door and returned through the back door. Now, primary legislation will be needed, but that primary legislation is dubious, because it will produce a vassal state—Gulliver tied down by the Lilliputians; this great nation state tied down by petty bureaucrats, running all over us, tying us down with ropes—because we will have to do whatever the European Union says during the implementation period. Our senior law will be made by a foreign body in which we have no say and no vote, and with which we have no association. Our money will go to—

[Peter Grant]

Which Europe are we dealing with: the one that is all friends and civilised countries that would never knowingly do anything bad to us; or a lot of miniature people who want to tie us down and, presumably, leave us to drown when the tide comes in? Or does the hon. Gentleman have a way to prevent the tide from coming in?

[Mr Rees-Mogg]

The hon. Gentleman is confusing me with the much-maligned late King Canute, who was accused of trying to hold the tide back when, in fact, he wanted to show that it was not possible to do so. The bureaucracy of the European Union is something to which I am strongly opposed, but that does not mean that I do not admire the individual member states and think of them as great countries and friendly allies. The two are completely different. Even if they were the same, while I may have a great friend, I would not want him to rule my life. There is no logical connection.

[Sir William Cash]

If we look around the European Union—at Italy and, most recently, Sweden—many if not most of the other countries are voting with their feet against the restriction on their right to make their own decisions in their own Parliaments.

[Mr Rees-Mogg]

As so often, the United Kingdom is leading by example. To paraphrase that great quotation from Pitt the Younger, we have saved ourselves by our exertion and we will save Europe by our example. We should always remember that as we make this great exertion—this worthy and noble exertion.

To have a period of 21 months, however, during which our senior law in this country cannot be stopped and our senior court is the European Court of Justice is a great mistake. It is an aspect of the legislation for which I, for one, will find it extremely difficult to vote, because there was another way—an alternative route. In terms of the courts, it is what we do with our own courts in relation to human rights challenges.

If the domestic court—the Supreme Court—decides that a bit of primary legislation fails to meet the requirements of the Human Rights Act 1998, there is a fast-tracked way of amending legislation through statutory instrument. That means, however, that if the House of Commons is against the change and wills to make the move that is against the Act, it is free to do so. That maintains control under our democratic processes, and that is how the Government should be proceeding in relation to judgments of the ECJ—or the CJEU, if you prefer—during the implementation period. We would, in the normal course, want to accept them, because we would still have treaty obligations, but they should come to Parliament to be passed into our law by statutory instrument. That would give us a straightforward reserve power not to act it if we felt that the proposal was not the right thing.

Equally, the same should apply to new laws. New laws being made by the European Union, over which we will have no say, could do specific damage to areas of our interest. There could be laws affecting the City of London, in which I have certain interests—I draw people’s attention to my relevant declarations in the Register of Members’ Financial Interests. They are not just my interests, however; they are the interests of the nation at large, and we want to protect them and to prevent unfavourable legislation over which we have no control from being passed.

What is Her Majesty’s Government’s best defence of this ability of a foreign set-up to make laws for this land, which is something that I cannot think any country has ever voluntarily agreed to before? Countries have become colonies, but normally that is after a little encouragement, usually at the end of a bayonet, spear or some such. It is most unusual—unprecedented, in fact—to volunteer to allow a foreign organisation to make one’s laws.

[Peter Grant]

Scotland did it.

[Mr Rees-Mogg]

No, that is not quite true. The hon. Member for Glenrothes (Peter Grant)—a great seat for which I once stood, in 1997, although not with enormous success—says that, but Scotland did not do that. Scotland became part of a greater whole, and how many Scottish Prime Ministers have we had who have led this country with great distinction? We became one, rather than simply farming out legislation to somebody else.

What is the Government’s best answer? It is that the EU is so slow—so slothful and sluggish—that in a period of 21 months, it could not institute any new laws and therefore we should not worry our little heads about it. This is a really unsatisfactory answer. It is not impossible for the EU to move swiftly, and it has done so the past. This is a golden opportunity for the EU to legislate in a way that we do not like, and we will have no say at all. I go back to the solution I have suggested for the courts: no new law without a vote in Parliament—and not a scrutiny vote. Although it is a very important Committee, the European Scrutiny Committee has never been able to stop any directive or regulation from coming in, and regulations have direct effect without any vote or scrutiny in Parliament anyway. There needs to be a vote as if for a statutory instrument. It is an abnegation of democracy to allow our law to be changed in this way, and this is a part of the White Paper that must be rejected.

[John Redwood]

Would it not be much easier if we did not have the so-called transition period and just got on with it?

[Mr Rees-Mogg]

That is very tempting—I would be delighted to talk about that proposition—but the title of our debate is “Legislating for the Withdrawal Agreement”, so I feel I have to stick to those terms because otherwise Mr Deputy Speaker, who I understand has had a very nice holiday in France, showing our continental cousins that we still send them our finest and best—

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

Order. For clarification, I was actually looking around a first world war battlefield, and I went to see the grave of a Victoria Cross recipient from Chorley. It was essentially not a holiday.

[Mr Rees-Mogg]

I do apologise, Mr Deputy Speaker, although I understand there was a haircut while you were abroad that was reported in the national newspapers and should be brought to the attention of the House.

The third point is money. Money is really important. The hon. Member for Central Ayrshire (Dr Whitford) intervened earlier on my right hon. Friend the Member for Wokingham to say that we were the sort of country that pays its bills—that is absolutely true—but the question is: what do we owe under international law? On this point, the most authoritative report is “Brexit and the EU budget”, published in March 2017 by the House of Lords EU Committee.

One may say that an EU Committee will be stuffed full of Eurosceptics and would be bound to come out with a report unfavourable to the EU, and that could perhaps be true in the House of Commons. I used to serve on the European Scrutiny Committee, and it would only be fair to confess that most of us were followers of that great gentleman, my hon. Friend—not right honourable, sadly—the Member for Stone, but in the House of Lords that is simply not true. The Lords Committee is made up of former Law Lords, a former Cabinet Secretary and others who, by and large, were in favour of our membership of the EU.

The case explained in that very powerful document is that if we leave under the terms of article 50 without a withdrawal agreement, we will owe no money, and the reason is that our obligation to pay any money would in normal circumstances depend on the 1968 Vienna convention on the law of treaties. If we leave under those terms, without anything in the Lisbon treaty or other EU treaties, we would indeed be liable for our share of the liabilities, but that convention says that if the treaty of the organisation to which one belongs makes a different provision for leaving, that provision is authoritative. And then we go back to article 50, and the provision of article 50 is that if we leave after two years without a deal, that is it—there is no financial provision at all. In those circumstances, this £40 billion of our constituents’ money, which could be spent on other pressing needs—every Member could identify a pressing need in their own constituency, or for their own constituents or the nation at large—is not a legal obligation, but a charitable donation, unless it comes with a very clear quid pro quo.

The hon. Member for Greenwich and Woolwich (Matthew Pennycook), the Opposition spokesman, made an excellent point on this in his very considered speech. He said that the Opposition would be expecting a good deal of detail on the second stage. What are we moving to? A report last week said that we would have a 10-page document on a political agreement saying that motherhood and apple pie was all fine and dandy. That would be £4 billion a page for waffle. Well, Members may like waffles—they may prefer Belgium waffles—but £4 billion a page for waffle is not something that any responsible Member of Parliament could vote for. For what, after all, is the job of this House and its power? How do we control the Executive? It is has always been through the provision of money, and if the Executive wish to waste British taxpayers’ money, we must say no.

The answer, then, is that we are generous and say yes to people who are living here, but that we say no to being a vassal state, no to being tied down by Lilliputians, and no to squandering taxpayers’ money.