European Union (Withdrawal) Bill

Joanna Cherry Excerpts

2nd reading: House of Commons
Monday 11th September 2017 Commons Chamber

[Stephen Kerr]

My hon. Friend’s excellent point brings me neatly to the nationalists, who have called the Bill a power grab and a threat to the devolution settlement. It is no such thing. They cannot name one power that the UK Government intend to grab back from Holyrood.

[Joanna Cherry (Edinburgh South West) (SNP)]

Does the hon. Gentleman agree with the Law Society of Scotland, a non-partisan body, that the Bill would remove legislative competence from the Scottish Parliament, including in areas of law not reserved to the UK, such as agriculture and fisheries? Has he read the Bill?

[Stephen Kerr]

The answer to the first question is no. I remind the hon. and learned lady, however, that it was a Conservative Government who passed new powers to the Scottish Government, and there is no evidence, other than in the feverish imagination of SNP Members, that the UK Government intend to grab back any devolved powers.

To the contrary: I have lost count of the number of times Ministers have said in this House and elsewhere that they anticipate that the Scottish Parliament will have new enhanced powers because of Brexit. The irony is that the SNP, if it ever got its way, would hand those very powers back to Brussels. The SNP Government have spent the past 10 years power grabbing for themselves from local government and local communities, and their incessant centralising of power has undermined the very fabric of local democracy in Scotland. Just a few days ago, Scottish Ministers, against all advice, including from their own reporter, ran roughshod over local democracy in Stirling by foisting a huge commercial development on scenic greenbelt at Park of Keir. Many of my constituents—

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[Joanna Cherry (Edinburgh South West) (SNP)]

Last week, we heard excellent forensic legal analysis, on both sides of the House, from the shadow Secretary of State for Exiting the European Union and from the right hon. and learned Member for Beaconsfield (Mr Grieve). I endorse much of what they both said but, for my part, I, like my SNP colleagues, will vote against the Second Reading of the Bill. There is no question that the Scottish National party could support the Bill until there is considerable movement towards respecting the wishes of Scottish voters who, as well as having endorsed the devolution settlement 20 years ago tonight, also voted to remain in the European Union.

Conservative and Unionist Members for Scottish constituencies seem to be a little hard of hearing and appear not to have read their briefings about the Bill—or indeed the Bill itself—so let me spell out for them why this is a power grab on the devolved institutions. I will use not my own words, but those of the non-partisan and neutral Law Society of Scotland:

“The effect of the bill would be to remove the legislative competence of the Scottish Parliament in relation to any matter in retained EU law. This would be the case even if it related to areas of law not reserved to the UK under the Scotland Act, such as agriculture or fisheries.”

There are some of the devolved powers that are being grabbed back.

If Conservative Members cared to examine the Bill with the attention it deserves, particularly in relation to Scotland, they would see that it creates a complex division of decision-making responsibility that does not reflect the reality of devolution. In particular, it empowers UK Ministers to make changes in devolved policy areas without any involvement of either the Scottish Government or the Scottish Parliament. This includes policy areas such as the Scottish justice system, where the Scottish Parliament has primary responsibility. That is why we say that this Bill is a power grab.

Twenty years ago tonight, I hosted a party in my flat in Edinburgh for friends from all political parties that had voted for devolution in Scotland. The devolved scheme that followed was the brainchild of the late, great Donald Dewar.

[Chris Law (Dundee West) (SNP)]

On the position of Scottish Conservatives on devolution, I thought that Scottish Tory MPs would be interested in some breaking news. The Scottish Conservative leader, Ruth Davidson, has said on the BBC in the past hour that she is

“not flying the flag for Brexit”,

and would in fact vote again for remaining in the EU. I would like to hear what my hon. and learned Friend has to say about that.

[Joanna Cherry]

My hon. Friend makes my point for me.

The point I was about to make is that 20 years ago in Scotland, people from all political walks of life voted for the devolved settlement. It is the settled will of the Scottish people. The question for the 12 new Scottish Tory MPs is: will they make their presence felt in this Parliament, and will they protect the democratic will of the Scottish people, including their own constituents, who voted for devolution 20 years ago by 75% and voted to remain in the European Union by 62%? Tonight is a test of their mettle. Will they represent their constituents’ views? Will they defend the devolved settlement in Scotland? Will they follow what their leader in Scotland, Ruth Davidson, has said, or will they troop through the Lobby like lobby fodder to undermine the settled will of the Scottish people and their constituents?

[Several hon. Members rose—]

European Union (Withdrawal) Bill

Joanna Cherry Excerpts

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

[Mr Baker]

I forget for the moment whether the hon. Lady voted for the triggering of article 50, but the House did trigger article 50, and the process is quite clear: two years after that, we leave the European Union.

[Joanna Cherry (Edinburgh South West) (SNP)]

I wonder whether the Minister is going to admit to the Committee that setting a date for exit is mere political window-dressing. The Prime Minister has told the House that if there is to be a transitional deal, which she wants, her understanding is that it will be under article 50. That means that we will be staying in the single market, staying in the customs union and subject to EU law during the transitional period, so this exit day is simply a sop to Back Benchers. When is the Minister going to tell them the truth?

[Mr Baker]

I will come to the implementation period in a moment, but one of the crucial points is that we need to become a third country in order to conclude our future relationship agreement. The Prime Minister set out in her Florence speech the outline of that implementation period, which would allow practical continuity under new arrangements that would enable us to be a third country and conclude the future relationship agreement.

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[Paul Blomfield]

I do not disagree with the Minister. It is precisely our point that, during the transitional period, we cannot disable the role of the Court of Justice of the European Union, otherwise we will not achieve the arrangement that we apparently both seek.

[Joanna Cherry]

The hon. Gentleman is making a powerful point, and I wonder whether I might help. I asked the Prime Minister what she thought the legal basis of any transitional deal will be, and she said that the EU takes the view that it will be article 50. When I was in Brussels with the Exiting the European Union Committee last week, I raised this issue at the highest level of the EU and was told that, yes, it is envisaged that during the transitional deal Britain will stay in the single market, in the customs union, within EU law, within the acquis and under the jurisdiction of the Court of Justice of the European Union.

[Paul Blomfield]

I agree with the hon. and learned Lady. In fact, the Brexit Secretary talked about the Court in those terms yesterday.

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[Mrs Gillan]

My hon. Friend served with great distinction on the Council of Europe and I am thrilled to have been put back on the Council of Europe today, along with several colleagues across the House. I happen to think that this is extremely important, as is our membership of the Council of Europe, and my hon. Friend is right that that situation would be looked at with some suspicion by the other 46 members of the Council of Europe. For that reason, it is important that if we change the law through this Bill, changes that result from the Bill only apply from a point in the future, so that individuals can rely on the law as it stood up to the point when the law changed.

[Joanna Cherry]

I am sympathetic to the arguments the right hon. Lady is putting forward. Following on from the intervention of the hon. Member for Bromley and Chislehurst (Robert Neill), does the right hon. Lady agree that if people’s legitimate expectations and right to an effective remedy are withdrawn as a result of Government action, those individuals might have cause for action against the Government under the European convention on human rights?

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[Dominic Raab]

I am grateful to my right hon. and learned Friend. I absolutely agree that the scope and parameters of the different options will need to be settled, but I think he has implicitly accepted and recognised that that is the subject of diplomacy. As has been said, we cannot put the legislative cart before the diplomatic horse, and I fear that that is what the amendment would do.

I now turn to amendment 202, which was tabled by the right hon. Member for Ross, Skye and Lochaber (Ian Blackford) and also relates to amendment 384. In leaving the EU, we will bring about an end to the direct jurisdiction of the European Court of Justice, and this Bill is essential to ensuring the sovereignty of our Parliament as we take back democratic control. We understand, of course, the desire to ensure a smooth and orderly exit and continuity for those who have commenced matters before the courts before exit. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) also made this point.

That is why we set out in our July position paper, “Ongoing Union judicial and administrative proceedings”, that we believe that UK cases before the ECJ on exit day should not be interrupted but should be able to continue to a binding judgment. We recognise that parties involved in such cases before the ECJ will have already gone through various stages of the process, potentially including making oral and/or written submissions. We do not think that they should have to repeat those stages before the UK courts, as this would not provide certainty but undermine it. The amendment would add further uncertainty rather than mitigate it. Pending matters before the UK courts will be able to reach a final judgment post exit without needing referral to the European Court. The Bill will convert directly applicable EU law into domestic law, so our domestic courts will then apply to those matters. In this way, we will have certainty about how the jurisdiction of the ECJ in the UK will be brought to an end.

Permitting the European Court to continue ruling on cases that were not before it procedurally on the day of withdrawal, as the amendment proposes, would give rise to considerable uncertainty. It would extend the period under which the European Court would continue to issue judgments in respect of the UK, and it is absolutely impossible to predict how long that may last. Furthermore, after exit day the UK will no longer be a member state of the EU. Under the EU treaties, the European Court itself can rule only on questions referred to it by member state courts, so it follows that without a new and separate international agreement, the references envisaged by the amendment would not, in any event, be possible.

[Joanna Cherry]

I am sure that the hon. Gentleman is aware of the arrangements that were made in relation to the Privy Council when New Zealand chose to have its own supreme court. In fact, cases from New Zealand are still going to the Privy Council. All we are contemplating with these amendments, which I will address in more detail in a moment, is a similar arrangement.

[Dominic Raab]

I take the point that the hon. and learned Lady makes, but that is not the same mechanism. It is not analogous and it is not desirable.

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[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.

[Joanna Cherry]

I rise to speak to amendment 137, which stands in my name and, I am happy to say, the names of many other hon. Members on these Benches, and to amendments 202 and 203, which stand in the name of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) and other Members on the SNP Benches. I was particularly delighted to hear the Labour party spokesman say that Labour was supporting my amendment 137, which also has the support of the Trades Union Congress, Justice, the Equality and Human Rights Commission and the Fawcett Society.

I will endeavour to explain in detail why amendment 137 is necessary. In essence, we have tabled it because it is necessary to create legal certainty for individuals and businesses by giving a clear instruction to the courts about how to treat decisions of the European Court of Justice after exit day. I am afraid that the Bill does not give that degree of clarity. The purpose of the amendment is also to protect the judiciary from having to make decisions open to political criticism. We saw some pretty heinous political criticism of judges on the Supreme Court earlier this year, and we have heard judges on that Court express concern about the possibility of not being given proper direction in the Bill. My amendment seeks to address that issue. Finally, and perhaps most importantly for our constituents, the amendment will encourage UK rights protections to keep pace with EU rights after Brexit.

Amendment 202 is also about giving certainty to individuals and businesses with cases pending before the domestic courts on exit day. I listened carefully to what the right hon. Member for Chesham and Amersham (Mrs Gillan) said about her amendments, with which I have great sympathy. Amendments 202 and 203 have a similar purpose. I also listened with care to what the Minister said, but I regret that he has not given me any comfort that anything in the Bill will give the certainty required for people in the midst of litigation on exit day. That is why we seek to define a “pending matter” in amendment 384 as

“any litigation which has been commenced in any court or tribunal in the United Kingdom and which is not finally determined at exit day”.

We need clarity. It is not just me who says so, or those who support the amendment; these amendments were drafted with some care by the Law Society of Scotland, and I submit that they are necessary to protect litigants’ legitimate expectations, but I will return to that in a moment.

The underlying theme of all these amendments is the need to create the legal certainty that hon. Members on both sides of the House have referred to today. It is, of course, an absolute requirement of the rule of law that there should be legal certainty. I regret to say, however, that clause 6 does not give that degree of legal certainty. In accordance with our mandate the Scottish National party opposes Brexit, but we understand the need for withdrawal legislation, and we want to reach agreement on it if possible. We also want to ensure that the legislation is properly framed. Clause 6 is not properly framed, because it does not give the certainty that is required.

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[Stephen Gethins]

I am loth to interrupt my hon. and learned Friend, who is making a powerful case for legal certainty, but does she agree that a wide range of industries and other organisations will need legal certainty, certainly around freedom of movement, such as our education sector and food and drink sector? Does she also share my concerns about the reports that have come from the Financial Times this evening that the Secretary of State for Exiting the European Union says that bankers and other professionals have been promised a special post-Brexit travel regime? If we are going to have freedom of movement and the benefits that brings, we should not just be protecting the bankers.

[Joanna Cherry]

I am grateful to my hon. Friend for bringing this matter to the Floor of the House. I was made aware of it just before I got to my feet. If the Financial Times report is correct that the Government are going to give special deals for certain professions, that will come as a great shock to the other professions that will not get such a special deal, and a particular shock to cross-party colleagues in the Scottish Parliament who have asked for a separate deal on immigration in Scotland, as have Unison, the chambers of commerce in Scotland and the Institute of Directors. I look forward to the Secretary of State for Exiting the European Union coming to the House to explain what is going on here.

To returning to the issue of legal certainty, the Institute for Government looked carefully at different tests that might be put on this Bill to direct the courts, and expressed the view that if Parliament passes the buck on this question to the judges, it will leave the judges open to fierce political criticism. We have already seen the sort of fierce political criticism that the judges got earlier this year, and regardless of the different views we might have about the British constitution, all of us can probably accept that the independence of the judiciary is a fundamental part of any constitution that recognises the rule of law. We perhaps do not have to look too far from home in the EU at present to see a judiciary that is not independent, but I digress.

We need an independent judiciary in this country, and we have one, but it has to be protected from criticism because judges cannot go into print to defend themselves when criticised. We must provide the courts with a specific legal test on the face of the Bill governing the treatment of Court of Justice case law after Brexit, and that is what my amendment 137 seeks to achieve.

[Mr Marcus Fysh (Yeovil) (Con)]

Does the hon. and learned Lady agree that one aspect of the legal certainty that the Government should consider is that, as our relationship with the EU evolves, we do not want our judges to have to make decisions that might affect our commercial policy, or indeed our diplomatic policy, towards the EU?

[Joanna Cherry]

My amendment 137 seeks to ensure that:

“When interpreting retained EU law after exit day a court or tribunal shall pay due regard to any relevant decision of the European Court.”

The Minister questioned the term “due regard”, but it is not unknown to international law. The Lugano Convention on the mutual recognition on enforcement of judgments, to which EU and non-EU states are signatories, talks about paying “due account”, but I have followed the recommendation of the organisation Justice that it is clearer and better English to talk about paying “due regard”. Under the Human Rights Act 1998, we have a duty to take account of decisions of the Court of Justice, so paying “due regard” to taking account of such decisions is not a phrase unknown.

This amendment is not a Trojan horse designed to continue references after Brexit, and I say that as someone who does not want Brexit to happen. It is designed to create certainty for individuals, businesses and litigants, and also for the judiciary. It would leave it open to British courts to disagree with the Court of Justice’s interpretation, even if its case law was relevant to the case. It would not—as the Government’s current draft does—give an unfettered, politically controversial discretion to consider or ignore Court of Justice decisions as our courts saw fit.

The test set out in my amendment has three advantages. First, it would create legal certainty for individuals and businesses. Secondly, it would provide political cover for the courts. Thirdly, it seems to fit with the preference of the judiciary, who want a clear instruction. In recent evidence to the House of Lords Constitution Committee, Lady Hale, the new President of the Supreme Court, said:

“It should be made plain in statute what authority or lack of authority, or weight or lack of weight, is to be given to the decisions of the Court of Justice of the European Union after we have left, in relation both to matters that arose before we left and, more importantly, to matters after we leave. That is not something we”—

she means “we, the judges”—

“would like to have to make up for ourselves, obviously, because it is very much a political question, and we would like statute to tell us the answer.”

In my submission, under my amendment, statute would tell the judges the answer.

That is not just my view. The Institute for Government looked at the various options and concluded that the wording that I now propose would license courts in the UK to refer to the Court of Justice’s reasoning in future judgments without making those Court of Justice judgments binding on the UK courts—

[Sir William Cash]

rose—

[Joanna Cherry]

I will just finish my point, then I will give way to the hon. Gentleman.

The Institute for Government took the view that that approach was compatible with the objectives set out in the Government’s White Paper on Brexit and in the repeal Bill.

[Sir William Cash]

I just wanted to refer to chapter 12 of the book by Lord Bingham, entitled “The Rule of Law”, which I am sure the hon. and learned Lady is aware of, in which he criticises Lady Hale for her view on the relationship between Parliament and the judges. Is she aware of that?

[Joanna Cherry]

I am familiar with that book, but I do not think that it has any relevance to what I am saying at the moment. I remind the hon. Gentleman the Lady Hale is the President of the Supreme Court of the United Kingdom, and she has made the point that what she and her fellow judges require from the Government and the House is clarity in the directions as to how they are to treat the future jurisprudence of the Court of Justice of the European Union, because if the guidance is not clear, they will come under the sort of political attack that I am sure the hon. Gentleman, who is a great supporter of the British constitution, would abhor, as I do—although I might actually prefer a Scottish constitution.

As I said earlier, this amendment is not a Trojan horse. It is the result of careful consideration by the organisation Justice and by the Institute for Government. It also has the support of the TUC and, I am delighted to say, the Labour party, as well as the Equality and Human Rights Commission and the Fawcett Society. One reason the Equality and Human Rights Commission is so keen on this amendment is because it is also important for rights protections. It is important to remember that EU law is largely about the rights of individuals. The Government’s position paper, published in the summer, seemed to imagine that EU law was all about disputes between the United Kingdom and the EU, but it is not. Most people who make references to the Court of Justice do so in the determination of their individual rights or their rights as a business.

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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.

[Hannah Bardell (Livingston) (SNP)]

Does my hon. and learned Friend agree that we have already seen examples of the denigration of our rights, particularly in aspects of the Trade Union Act 2016? Without the safety net of the Court of Justice, there is a further risk of those rights being degraded.

[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.

European Union (Withdrawal) Bill

Joanna Cherry Excerpts

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Mr Leslie]

My right hon. Friend is absolutely right. If the hon. Member for Banbury (Victoria Prentis) had won her case, would she be here today? Perhaps she would be higher on the judicial ladder.

[Joanna Cherry (Edinburgh South West) (SNP)]

The hon. Member for Banbury (Victoria Prentis) suggested that the charter of fundamental rights contains rights that are too complicated to be incorporated into English law. Will the hon. Member for Nottingham East (Mr Leslie) reassure her that those rights have been incorporated into Scots law, which is a separate legal system, and into all the legal systems of the other member states of the European Union? In fact, it is not too complicated to incorporate the rights into English law.

[Mr Leslie]

The hon. and learned Lady makes the point very well, but perhaps the hon. Member for Banbury would like to respond.

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[Dominic Raab]

I will just make a little bit of progress and then I will give way to my right hon. and learned Friend.

I will address the detail of this by reference to the new clauses and amendments that have been tabled, because they usefully highlight and flag up the different concerns of hon. Members. As a matter of guiding principle, I hope all hon. Members can agree that we should not make changes that exacerbate the risk of legal uncertainty, which I think goes to the point my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) was making in his intervention. Our substantive law will remain the same on exit day, but it would be wrong in principle—indeed, I think we would find it counter- productive in practice—to seek to cling to all the procedural mechanisms that are inherent, intrinsic and inextricable institutional features of EU membership.

[Joanna Cherry]

Will the Minister give way?

[Dominic Raab]

I will not give way just for the moment, but I will give way to the hon. and learned Lady shortly.

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It later became clear, of course, that there was no opt-out, but it is right that we will be retaining the substantive rights and principles that the charter merely sought to codify. I will explain that in more detail shortly, but I hope that on that basis I can urge the hon. Member to withdraw his procedural amendments.

[Joanna Cherry]

Will the Minister give way?

[Dominic Raab]

I will give way shortly to the hon. and learned Lady, because I know she supports some of the amendments.

I turn now to amendments 297, 298 and 299, tabled my right hon. and learned Friend the Member for Beaconsfield, and to amendments 285 and 286, tabled by the leader of the Labour party, the right hon. Member for Islington North (Jeremy Corbyn). My right hon. and learned Friend the Member for Beaconsfield wishes to remove any reference to “any rule of law”, which is a reference in the Bill to common law rules in relation to provisions addressing supremacy of EU law. In effect, his amendments—at least as I have understood them, and I stand to be corrected—would allow EU law to continue to trump the common law after the date of exit. However, this would undermine both of the key strategic objectives of the Bill. It would mean in relation to common law rules articulated after exit day that retained EU law trumps them, undermining the UK’s basic constitutional hierarchy that we are seeking to restore and affirm.

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[Dominic Raab]

My hon. Friend makes a considered and thoughtful point. Given the changes we are making—for the purposes of greater certainty and clarity—I respectfully suggest to my right hon. and learned Friend the Member for Beaconsfield and other hon. Members across the House that it is worth having some clarity and certainty on this point.

I turn now to amendments 285 and 286. We discussed similar amendments from the leader of the Labour party on day one of the Committee in relation to clause 6, and for the same reasons given during that debate, we cannot support them. I note again what the Prime Minister said in her Florence speech:

“The United Kingdom will cease to be a member of the European Union on the 29th March 2019”.

I will not speculate on the contents of the withdrawal agreement. The Government will do whatever is necessary to prepare for our exit and have already made it clear that separate primary legislation will be brought forward to implement the terms of the withdrawal agreement and any implementation period. With that in mind, the amendments would pre-empt and prejudge the outcome of the negotiations and introduce a straitjacket of inflexibility for the duration of any implementation period. We are all in the House committed to securing the very best deal with our EU friends and partners, and I respectfully suggest that the amendments would undermine that objective. I urge the leader of the Labour party not to press them.

[Joanna Cherry]

The hon. Gentleman said earlier that one of his guiding principles was not to exacerbate any legal uncertainty, but the Exiting the European Union Committee has heard evidence from a senior lawyer that the body of retained law will contain instruments that make explicit reference to the charter. If the charter is not part of retained EU law, how are the courts supposed to interpret the body of retained law that refers to it?

[Dominic Raab]

The hon. and learned Lady makes a perfectly respectable and legitimate point, but I will address it in the context of amendment 8, tabled in the name of the my right hon. and learned Friend the Member for Beaconsfield, and amendment 46, tabled in the name of the Leader of the Opposition, both of which, in different ways, seek to retain the charter of fundamental rights in domestic law after exit by removing subsections (4) and (5) of Clause 5. I understand and appreciate the sentiments behind the amendments. Hon. Members are understandably concerned that as we leave the EU we do not see any diminution or reduction in the substantive rights we all enjoy. The Government are unequivocally committed to that objective. I remind the Committee again of the country’s record of pioneering, defending and protecting human rights standards since well before the EU existed and of our ability as a nation to withstand the darker moments in European history that have touched other less fortunate nations.

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[Dominic Raab]

I am going to make a bit of progress, but I will give way shortly.

Let me, again, be clear about what the Bill does. It takes a snapshot of substantive EU law, including the underlying fundamental rights and principles at the point of exit. It converts those into UK law, where they will sit alongside the Human Rights Act and other UK legislation on human rights. That is a crucial point. As my right hon. and learned Friend the Member for Beaconsfield rather perceptively asked during debates on the Lisbon Treaty in 2008,

“Will the Lord Chancellor confirm that every country that is a member of the European Union is also a signatory of the European Convention on Human Rights? Indeed, I believe that every single one has incorporated it. In view of that, what is the purpose of the charter of fundamental rights?”—[Official Report, 5 February 2008; Vol. 471, c. 804.]

During the same debate, my right hon. and learned Friend made the point, far better than I can—and I say this with all due deference—that the risk of adopting the charter was that it would, at least potentially, run into conflict with domestic human rights law, thereby creating at least the potential for legal confusion. This is the point that I want to make to my right hon. and learned Friend the Member for Rushcliffe. If we incorporated or implemented the charter, we would in effect be triplicating human rights standards in UK law, opening up wide scope for uncertainty. My right hon. and learned Friend the Member for Beaconsfield was right about that then, and I think he is right about it now.

[Joanna Cherry]

With all due respect, I do not understand the point that the Minister is making. The charter is already part of UK law, because we are a member of the European Union.

[Dominic Raab]

As we leave the European Union, it will make no sense to retain the institutional framework of membership. What we will do is retain, in the way that I have described very carefully, the substantive rights that were codified in the charter. If, when we publish the memorandum, the hon. and learned Lady, or any Member on either side of the House, thinks that there is a gaping gap, we will be able to address that.

--- Later in debate ---

[Joanna Cherry]

I rise to give my support and that of the Scottish National party to the amendments designed to retain the charter of fundamental rights in domestic law, and those designed to preserve legal remedies for individuals and businesses to enforce these rights in the courts and to be compensated when the rights are breached.

It is heartening to see such strong cross-party support for these amendments. I very much hope that the Conservative rebels will have the courage of their convictions to push these amendments to a vote tonight, despite the unpleasant pressure they have been subjected to as a result of the actions of certain newspapers. That is a matter for them. There are other cross-party amendments on the charter that I am sure will be pressed to a vote if those in the name of the right hon. and learned Member for Beaconsfield (Mr Grieve) are not.

Before I address why the SNP supports these amendments, I have a crucial question for the Minister. It needs to be answered, not for my benefit, but for the benefit of the whole House and, indeed, the country. The clause we are debating revolves around the supremacy of EU law and whether the charter will be part of domestic law after exit day, but, as has already been mentioned in our debate, this morning the Prime Minister’s official spokesman told a routine Westminster briefing that the Government expect

“the ECJ’s role to be unchanged during an ‘implementation period’ of around two years following the official Brexit date in March 2019”.

Are those on the Treasury Bench aware of that statement? Can they explain to us how it impacts on what we are debating today? If the Prime Minister is of the view, as her spokesman has said, that the Court of Justice’s role will be unchanged during a two-year implementation period from exit day, not only is the rather ridiculous amendment brought to this House by the Government last week defining exit day rendered utterly meaningless, but much of the debate we are having this afternoon about clause 5 and, indeed, the debate we had last week about clause 6 and other clauses are rendered meaningless.

I am not trying to score a party political point here. This is a matter of legal certainty which is of the utmost importance to all UK citizens and to UK business and universities. Which is it? Is what the Prime Minister’s official spokesman said this morning correct? Is the Court of Justice’s role going to continue unchanged during a two-year implementation period and, if so, how does that impact what we are debating today? I am very happy for the Minister to intervene on me to clarify that, but if he wishes to take advice, I am sure that his ministerial colleague the Solicitor General will clarify that vital point and the impact of the Prime Minister’s statement this morning on the entirety of this Bill, and most particularly the clause we are debating.

In any event, if this somewhat holed-beneath-the-waterline Bill is to survive and limp on, the SNP commits itself wholeheartedly to the amendments to keep the charter of fundamental rights, to keep individuals’ and businesses’ rights to sue and enforce, and to make those rights meaningful, because that is what the individual right of enforcement and Francovich damages are all about: making rights meaningful. For anyone who has studied law, a right without a remedy is a pretty useless thing; it is trite law.

The Scottish Government published their programme for government earlier this year, and reiterated their commitment to international human rights norms. It is important to remember that human rights are not wholly reserved by this Parliament when it comes to the devolution settlement, so what the Scottish Government choose to do could be very important, particularly if Scotland is to be taken out of the European Union against her will. My colleagues in the Scottish Government have emphasised that it is essential that existing safeguards are not undermined by Brexit, and that the rights enjoyed by everyone in these islands, as EU citizens, need to be permanently locked into a future deal. That is why we oppose the removal of the EU charter of fundamental rights from domestic law, and why we opposed the Government’s previous desire to repeal the Human Rights Act.

I was interested in the Minister’s reiteration—in fairness, this has been reiterated by the Government several times as part of this debate—that there is no intention to withdraw from the European convention on human rights. But, as I have already said, rights without remedies are not much use. The great thing about the Human Rights Act was that it gave UK citizens the opportunity to enforce their rights by raising actions in the courts of their own jurisdiction. Will the Minister—or the Solicitor General, when he gets to his feet—confirm the Government’s intentions regarding the Human Rights Act?

[Dominic Raab]

I think I have already said this, but I am very happy to reaffirm for the hon. and learned Lady that the Government have no plans to withdraw from the ECHR, or to revise or repeal the Human Rights Act.

[Joanna Cherry]

I am grateful to the Minister for that. I had understood that the revision and repeal of the Human Rights Act was on the back burner, but Members on this side of the House and many Conservative Members can celebrate a great victory if that plan has now been dropped and the Government are backing down on it. Unfortunately, I very much doubt that we will be in the mood for celebration as we are facing the Government’s chaotic plans for Brexit, and that is what we have to discuss today.

My colleagues in the Scottish Government in Edinburgh have recently reiterated their firm commitment to the idea that international human rights norms should not just be signed up to by the jurisdictions of these islands, but should be given direct effect by giving individuals and businesses the opportunity to raise and realise their rights in the courts. The Scottish Government have indicated that they intend to

“implement the socio-economic duty in the Equality Act 2010 by the end of this year, placing a requirement on key parts of the public sector, including Scottish Ministers, to have due regard to reducing the inequalities caused by socio-economic disadvantage when taking strategic decisions. This is a key component of our approach to tackling poverty.”

The Scottish Government also committed in their programme for government to look at how they can further embed human, social, cultural and economic rights, including the UN convention on the rights of the child. That is an indication that the Scottish Government’s direction of travel on international human rights norms is very different from the UK Government’s. It reflects the fact, as I said earlier, that human rights are not a reserved matter save in so far as the repeal or amendment of the Human Rights Act is concerned. Indeed, the Scottish Government have the power to legislate to protect human rights and intend to do so.

That leads me to comment briefly on new clause 78 and a new right in relation to equality that is intended to apply across the United Kingdom. There is a laudable intention behind the new clause, but its application in Scotland, Wales and Northern Ireland would require discussion with and the consent of devolved Administrations, if it were to be incorporated into the devolution statutes. The Scottish Government’s and Scottish National party’s position on human rights also reflects the wishes of voters in Scotland, who voted to remain in the EU by a considerable margin and voted in considerably larger numbers for parties that support international human rights norms than for those that do not.

It is about time that this Parliament started to recognise that views across these islands are quite divergent from the sort of Brexit that the Government are proposing. The cross-party amendments would go some way towards the aim of keeping us in the charter and keeping remedies for UK citizens. Of course, that is not to say that there are not many people in England and Wales who voted to leave and also wish to see the charter of fundamental rights preserved. We heard, if I may say so, a typically eloquent speech by the right hon. and learned Member for Beaconsfield, who said that the rights that have come into our law as a result of our membership of the European Union have done good across these islands, particularly for the most vulnerable people in our society. One would hope that we could agree on that on a cross-party basis.

A lot of misinformation is going around about the charter, and that stems from a resistance to the idea that it is either desirable or necessary for international human rights norms to have direct effect in the United Kingdom. We have to recognise that the logical result of that antipathy to giving direct effect to international human rights norms is to take away rights, and the ability to realise them, from British citizens and businesses. That is surely not a desirable state of affairs, no matter which side of the House one sits on.

As we have heard from a number of hon. Members, the Government have tried to reassure us that importing EU law without also importing the charter will make no difference to the protection of rights in the various jurisdictions of the United Kingdom. Indeed, they state in paragraphs 99 and 100 of the explanatory notes to the Bill that it is unnecessary to include the charter as part of retained law because it merely codifies rights and principles already inherent in EU law. That is what the Minister told us from the Dispatch Box. As others have said, that rather begs a question: if it is just a simple codification, why bother not incorporating the charter?

As I pointed out in an intervention on the Minister, the Exiting the European Union Committee heard evidence from a senior legal academic who said that there will be legislation in retained EU law that refers to the charter, so there will be a lack of legal certainty if the charter is not there. The Minister would no doubt say, “Yes, but the general principles will still be there.” But the charter existed as a codification of the general principles in order to make them more readily accessible.

I am interested to see the list that the Minister is going to produce on 5 December, but he could make his life a lot easier—I know that he and his colleagues have a lot on their plate at the moment—if he just incorporated the charter, rather than running around with bits of paper listing the general principles when they are all listed in the charter anyway. Surely that would be the logical and practical thing to do; unless there is, to use someone else’s phrase, some devilish plot, whereby removing the charter of fundamental rights means that rights will be removed. There is some evidential basis for believing that at least some Government Members think it is a good thing not to incorporate the charter of fundamental rights because it includes rights that they do not like. I am sorry to single out one Government Member, but I did read the article in The Sun yesterday by the hon. Member for Fareham (Suella Fernandes). I am not normally a reader of The Sun, but it caught my eye on Google that it contained an article about the charter of fundamental rights and I thought that every newspaper should be given a chance from time to time, so I had a little look. Like me, the hon. Lady is a lawyer, and she writes:

“This week Parliament will be asked to vote on whether to incorporate the EU’s Charter of Fundamental Rights into UK law. If Labour, acting with others, manage to force this through there will be legal chaos. Not only will it hand new and long lasting powers to UK courts”,

but it has also

“crept into many areas of UK law, from asylum to even national security.”

So there we have it in the words of at least one Conservative Member. There are things in the charter of fundamental rights that some on the Government Benches do not wish to be incorporated into our law.

[Suella Fernandes]

I am flattered that the hon. and learned Lady is quoting me in the Chamber. Does she not find it odd that the effect of her proposals would actually be legal chaos and uncertainty? We would have interacting rights regimes, with the convention through the Human Rights Act, and the charter. This would be precisely at the time at which the Bill is designed to provide legal certainty for businesses, individuals and other Governments.

[Joanna Cherry]

With respect, we have all that at present. The status quo is that the ECHR and the charter of fundamental rights are part of domestic law, and I do not see any legal chaos in our courts, although I do see an awful lot of political chaos.

[Wera Hobhouse]

Does the hon. and learned Lady agree that there is some kind of misunderstanding here, and that it is the gaps that we are addressing? We are not creating uncertainties. The situation proposed by the Bill will create gaps, and that is the main problem that we are addressing.

[Joanna Cherry]

The hon. Lady makes her point eloquently. Some of those on the Government Benches say that incorporating the charter into domestic law would cause uncertainty and chaos, but our point is that not incorporating it while we are incorporating everything else at the point of the snapshot is what will cause uncertainty. I do not know whether I would go so far as to call it chaos. After all, there is going to be so much chaos around after Brexit, and a difficulty in establishing the difference between fundamental rights and general principles might not be the biggest example of that chaos. However, there will be legal uncertainty. The Minister himself said that one of the Government’s guiding purposes in the legislation was to avoid legal uncertainty.

[Antoinette Sandbach]

Our independent judiciary is clearly quite capable of balancing the rights contained in the charter, the Human Rights Act and other pieces of domestic legislation, and it has done so successfully for many years.

[Joanna Cherry]

Indeed it has; that is its job. In particular, judges at the higher level such as the Supreme Court and the High Court of Judiciary in Scotland are used to grappling with the complex interplay of international treaties and international human rights protections.

I mentioned earlier that the Exiting the European Union Committee had heard evidence from a variety of witnesses about the effect of not incorporating the charter. I have to be honest and say that some of them were happy for the charter not to be incorporated, but even they said that something would be lost by its going. Hon. Members on both sides of the House have given a number of examples of what would be lost, and I would like briefly to add to that list.

[Lady Hermon (North Down) (Ind)]

Just before the hon. and learned Lady comes to her list, may I add one more item to it? The Government have made great play of their commitment to the Good Friday agreement—the Belfast agreement—and stated that they are going to uphold all their obligations under it. One of those obligations relates to respect for human rights; indeed, that element has quite a large chapter in the agreement. Part of that obligation involves having, at the very least, an equivalence between human rights protections in Northern Ireland and in the Republic of Ireland. It is obvious that when the UK leaves the European Union, Northern Ireland will not have the protections afforded by the charter that we are discussing, but that the Republic of Ireland will. I hope that the hon. and learned Lady will therefore press the Government to fill that gap in Northern Ireland’s protection of fundamental rights.

[Joanna Cherry]

Indeed I will. The hon. Lady has, in her usual clear and incisive way, anticipated something that I was going to come to in a minute. Perhaps I will deal with it now, before I come to my list. As she says, the protection of fundamental rights is absolutely central to the Good Friday agreement, and has its own section in that agreement. The fact that the Bill will take the charter out of retained law raises concerns in this respect. The Good Friday agreement requires at least an equivalent level of protection of human rights in Ireland and Northern Ireland. If the charter is taken out of domestic law, there will be no such equivalent protection of human rights in Ireland and Northern Ireland, because once the UK withdraws from the EU, Northern Ireland will no longer benefit from the charter’s protections. This could pose significant problems for the Good Friday agreement—[Interruption.] The Solicitor General is shaking his head—

[The Solicitor General (Robert Buckland)]

I am listening with great care to the hon. and learned Lady’s remarks and to the interventions that she has taken. Let us not forget that the Good Friday agreement was written in 1998, and that the charter of fundamental rights appeared in 2007. It is the European convention on human rights that is the key governing principle here, not the charter.

--- Later in debate ---

[Joanna Cherry]

I beg to differ. The Solicitor General is right about the dates, but as we know, the charter is merely a codification of various general rights and principles. We have significant concerns about not incorporating it, notwithstanding the little list that the Minister is going to give us on 5 December, because with all due respect, a list prepared by a Minister does not have the same weight in a court of law as a codification that has been signed up to by a number of countries.

It is not just my view and that of the hon. Member for North Down (Lady Hermon) that there will be an issue for the Good Friday agreement. A briefing produced by none less than the Bingham Centre for the rule of law has raised the question of whether non-retention of the charter will impact on Northern Ireland. It has raised a series of questions, which I have just paraphrased, and I look forward to the Solicitor General answering them in more detail, rather than merely saying that there is not a problem. If I may say so, this illustrates the whole problem with the British Government’s approach to the unique situation in which Northern Ireland finds itself as a result a Brexit. There is a constant parrying, and saying, “There is not a problem, it can all be sorted out. It will all be fine.” This is what is causing us problems in the negotiations with the EU27, and particularly with the Republic of Ireland. Mere platitudes and assurances are not enough. We need some detail as to why removing the charter of fundamental rights from domestic law in the United Kingdom and Northern Ireland will not pose a problem for the Good Friday agreement. However, I am sure that as we have the Solicitor General here, we will hear that detail later.

[Mr Jenkin]

I wonder whether the hon. and learned Lady recalls the Mostyn judgment of 2013, in which a very senior member of the judiciary expressed astonishment that there was direct applicability of the charter in UK domestic law, given that the protocol had been attached to the charter when we originally signed up to it. Given the rather temporary nature of the charter rights, how can it be so fundamental to the Good Friday agreement? It did not exist in law in this country, and was not recognised by the judiciary, even after it had been brought into force in the treaties.

[Joanna Cherry]

If I may say so, I think that that is to misunderstand. I am not responsible for the false assurances that were given about the opt-out when this country signed up to the charter. They did not come from the Scottish National party, and I think it is fair to say that they have now been disowned by the Labour party. In reality, the incorporation of the charter in our law has meant enhanced direct effect. I use the term “direct effect” rather than “direct applicability” because people are able to take an action and refer to those rights in the course of their action, as we saw in the Supreme Court case last summer when a gentleman named Mr Walker was able to realise equal pension rights for his husband, despite a loophole in UK law about the equalisation of pension rights for gay couples, because the EU charter closed that loophole.

I want to give the House a brief list of some of the rights involved. We have heard a lot about data protection, and I know that others will want to address that issue, but it is worth remembering that the right to be forgotten on Google and other search engines—which I believe is of interest to some Members—stems from the EU charter. There is more to it than that, however. Let us look at the words of others, rather than simply accepting the argument on my say-so.

When the Exiting the European Union Committee took evidence on these matters, Caroline Normand, the director of policy at Which?, told us that

“the Charter of Fundamental Rights contains some really important principles for consumers. The particular ones that I would highlight are the right to a high level of human health protection, which is article 35, and a right to a high level of consumer protection.”

She referred to the case last May—it has already been mentioned today—when the large tobacco companies brought judicial review proceedings challenging the regulations that introduced standardised packaging for tobacco products. The High Court dismissed the case, referencing the public health and other rights set out in the charter. That is a pretty meaningful right for public health in these islands.

Dr Charlotte O’Brien, a senior lecturer at York Law School, told the Select Committee that she had produced an approximate count for the number of times the charter was referenced in case law. She found that the charter was cited in 248 cases in England and Wales, 17 in Northern Ireland, 14 in Scotland and 98 in the European Court of Human Rights, and in 832 EU judgments, 515 of which were from the Court of Justice. Her point was that that is an awful lot of cases that would have to be read differently, and it is not clear how they are to be read differently.

[Seema Malhotra (Feltham and Heston) (Lab/Co-op)]

The hon. and learned Lady and I both sit on that Committee. I would like her views on another point made by Dr O’Brien, which was that the school of thought that says that excluding the charter might not make that much difference is misleading because of the extent to which it is embedded in a lot of what we would consider to be retained EU law, and disentangling that would be extremely complicated.

[Joanna Cherry]

Dr O’Brien did indeed make that point, and I think that anyone interested in the detail of why removing the charter from domestic law would take away rights would be well advised to read her evidence.

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

The number of cases in which the charter is cited— 248 in England and Wales—does not mean that it has had the slightest practical effect on the outcome of judgments, as the hon. and learned Lady knows quite well.

[Joanna Cherry]

I do know that, because I have sat through cases—so, too, has the hon. and learned Gentleman, I suspect—in which case law has been cited and it is hard to see its relevance. However, Dr O’Brien made her point advisedly, having taken care to prepare for the Select Committee hearing, so it is not an isolated point—as the hon. Member for Feltham and Heston (Seema Malhotra) has indicated, there was quite a bit more to her evidence. She touched in some detail on data protection issues, but I will leave it to other Members to discuss those, because the right hon. Member for East Ham (Stephen Timms) had a very interesting exchange with her on these issues and will no doubt address them later, because he has tabled an amendment.

[Mr Cox]

The most familiar rejoinder of a judge when one cites the charter in the High Court is, “What does it add?” The most familiar response of counsel is, “Nothing.” The most familiar course of the judge thereafter is to ignore it completely, in 95% to 99% of cases.

[Joanna Cherry]

The hon. and learned Gentleman is no doubt commenting on the English jurisdiction, and I cannot comment on that because I have not appeared here, except in the UK Supreme Court. But certainly in Scotland it is sometimes referred to, and sometimes it is relevant and sometimes it is not, but that applies to all references made in cases. However, to counter his point, there are hard examples of where the charter has made a huge difference. The right hon. and learned Member for Beaconsfield referred earlier to the Benkharbouche case, which concerned the rights of an employee in an embassy in London, and another against the embassy of the Republic of Sudan. The individual complained of unlawful discrimination and a breach of working time regulations, and she would have been denied remedy had it not been for the charter.

One may forget Dr O’Brien’s evidence about the number of references if one wants to, but look at the hard examples of where the charter has made a difference. We have also heard about the tobacco packaging legislation. There are many examples relating to data protection, perhaps the most celebrated one being the litigation of the Secretary of State for Exiting the European Union.

[Darren Jones (Bristol North West) (Lab)]

I hope that the hon. and learned Lady can help me with a point of confusion that I am struggling with—I hope that I do not embarrass myself in front of more learned Members of the House. Is it not right to say that the application of charter rights in the European Court of Justice creates case law that, under this Bill, we are saying has UK Supreme Court-level status, so in effect are we not copying across ECJ case law on the charter into UK common law while not copying across the charter, and is not that nonsensical?

[Joanna Cherry]

The hon. Gentleman is absolutely right, and that point was also made by Dr O’Brien in her evidence. If, in the snapshot of retained EU law that will be taken on exit day, we are taking across all sorts of aspects of EU law that refer to the charter, it is nonsensical not to take the charter across as well, particularly if the Government insist on sticking to what they say in the explanatory notes, which is that the charter does not really add anything that is not already in the general principles. What it does add is clarity.

The process of leaving the European Union is already extremely complex and unpredictable, and the removal of the charter of fundamental rights simply risks creating an additional level of legal uncertainty and instability. So why do it? Why not reconsider? The Government have bigger issues on their plate, such as the Prime Minister’s spokesperson’s admission this morning that we will be in the European Court of Justice for another two years after exit day, which as I said earlier renders a lot of what we are discussing this afternoon somewhat irrelevant—at least in the short term. The Government have bigger fish to fry, so why remove the charter? Why take away from ordinary British citizens and businesspeople the right to sue to enforce their rights and to realise damages if their rights have been breached? Why do that unless it is part of a wider agenda—one bigger than Brexit—that is about rolling the United Kingdom back from its adherence to international human rights norms? The Government need to think carefully about the message they are sending out.

--- Later in debate ---

[Wera Hobhouse]

I thank the hon. Gentleman for making that point. Legal experts the Select Committee has listened to have made the point that there are gaps, so what is the point of not taking the charter into our retained EU law as a whole, because we are taking everything else, and making sure these gaps do not exist?

[Joanna Cherry]

Does the hon. Lady agree that it is hard to substantiate the claim that Britain leads the world in equality rights, given that we have so often had to fall back on the charter to fill gaps in our equality laws, as, for example, in the Walker case before the Supreme Court in the summer?

[Wera Hobhouse]

The hon. and learned Lady makes a good point. I am proud of the British legacy of fundamental rights, but as is clear, and as seems to be stated in a lot of legal cases—as I say, I am not a legal expert—lawyers are using different kinds of law because different laws apply to different cases. That is why we have this charter and we would lose a fundamental protection if we did not have it.

--- Later in debate ---

[Mr Cox]

Broadly speaking, there have been two means of protecting human rights in international law. The first, which is generally followed by civil and continental law systems, has been to adopt charters of general rights with very broad statements of those rights and then to turn over to the courts the interpretation, in specific circumstances, of how those rights should be applied. The second, which is generally followed by common-law traditions, has been to proceed not by general statements of rights, but by specific statutory remedies in defined circumstances and by case law that defines the facts and allows the remedy to be extended by analogy with the facts of the particular case.

With due respect to Opposition Members, it seems to me as though some of them have made a mistake in equating the need for the incorporation of the charter with the protection of fundamental rights in this country. Article 7 of the universal declaration of human rights provided in 1948 that all subscribing nations to the United Nations should respect the principle of equality. But it has never been suggested that the United Kingdom, because it did not incorporate that principle into a general statement of an equality right, was not compliant with its obligation in international law, under the declaration and subsequently the covenant, to respect equality.

That is because there are two ways in which one can protect human rights. One can either adopt a general statement of rights and leave the protection of it to the courts, or one can adopt specific remedies in given circumstances that cumulatively and substantively protect those rights. Nobody has suggested that because the Soviet Union incorporated a right to equality into its constitution, equality rights were better protected there than they were in this country, which did not. Therefore, the absence of a general statement of rights, such as that in the charter—I do not say that there is not a function for such statements, but let us begin with first principles—is not to be equated with the protection of human rights. We have to look at the substantive effect of the cumulative common-law and statutory protections in our law.

That is why my right hon. Friend the Member for Forest of Dean (Mr Harper) suggested that the Government’s approach should not be to incorporate this charter of wide, broad and, quite frankly, vague general statements of rights and allow courts to take those statements, which are often rich with value judgments, and apply them to the facts. That is why the approach of my right hon. and learned Friends on the Front Bench is right and, I suggest, consistent with the common-law tradition of this country.

[Joanna Cherry]

I am wondering which country the hon. and learned Gentleman is talking about, because the common-law tradition melds with the civilian tradition in Scotland. I take nothing away from his erudite explanation of the background to all this, but the point that hon. Members seek to make is that, as is the case with the Human Rights Act, having the charter of fundamental rights as part of our law gives ordinary citizens and businesses the opportunity to go to court to enforce those rights, which this Bill will take away from them.

[Mr Cox]

No such charter existed with binding legal force before 2009, even in the European Union, but let us look at the circumstances. I contend that there are two ways of proceeding, of which the first is to have a broad and general statement of human rights—indeed, extended human rights under the charter—and to allow the courts simply to interpret them in given circumstances.

Some Government Members and—I think—some Opposition Members believe that the proper place to resolve moral dilemmas is not necessarily in a court. As someone once said, why should a majority of five or nine judges take precedence over a majority of the 650 Members of this House on questions of moral dilemma? Many of these—

[Joanna Cherry]

Will the hon. and learned Gentleman give way?

[Mr Cox]

No, I am not going to give way again. This will become a debate between lawyers, and that is not the point.

[Joanna Cherry]

It is actually on a moral point.

[Mr Cox]

No, no. [Interruption.]

--- Later in debate ---

[The Solicitor General]

I know that the hon. Lady has a deep, long-term commitment to ensuring that the Good Friday agreement and the subsequent progress are maintained, and I share that commitment 100%. While I may not have the same knowledge that she has of Northern Ireland, I am sensitive to and understand the fact that there is still no essential consensus about what human rights should mean for every corner of Northern Ireland. It is in that spirit that I will be happy to ensure that the impacts on Northern Ireland are fully considered at all stages of any review, re-examination or clarification of the Bill. I am grateful to her for making that observation.

[Joanna Cherry]

Will the Solicitor General give way?

[The Solicitor General]

I had better make some progress, but I certainly will give way to the hon. and learned Lady in a moment.

--- Later in debate ---

[The Solicitor General]

I can assure my hon. Friend that that will be the case. We had a debate about this in a slightly different context earlier in Committee, but I can assure her that all that material is relevant for any court that might have to interpret it.

[Joanna Cherry]

I am just reminding the Solicitor General that I asked him to answer a crucial point earlier relating to the statement made by the Prime Minister’s spokesperson that the Government expect the ECJ’s role to be unchanged during an implementation period of two years following the official Brexit date in March 2019. If that is so, it completely undermines the premise of clause 5 and schedule 1, which revolve around exit day. Is he seriously still considering allowing these clauses to stand part of the Bill, in the light of what was said this morning?

[The Solicitor General]

The hon. and learned Lady has a keen memory and she will not have forgotten the Government’s commitment to a separate withdrawal agreement Bill, within which will be provisions relating to the implementation, the interim, the transition period— call it what you will. It is to that period that the Prime Minister was addressing her remarks. The fact that this Bill is taking a particular course on legal exit is nothing to do with the transition period, which has to be a separate matter, and the Government have rightly made it clear that they will bring legislation to this House in order for it to determine the law when it comes to the transitional period.

I really must press on now. The right hon. Member for East Ham (Stephen Timms) made the most important reference to the data protection amendment that stands in his name, but the hon. Member for Argyll and Bute (Brendan O'Hara) also spoke well about this. Let me just make these observations: the UK does not have to be subject to the charter in order to benefit from adequacy decisions on data protection once we leave the EU, because the charter applies to EU institutions and EU member states when acting within the scope of EU law. Countries that benefit from adequacy are third countries and are not required to be subject to the charter. There are many examples of countries that have adequacy by virtue of the data protection directive of 1995, including Canada, New Zealand, Switzerland, Uruguay, Argentina and the Faroe Islands.

I must also deal briefly with the further effects of amendments 101 and 336, which specifically seek to set out an ostensibly broader definition of which general principles are to be retained under the Bill to include principles as they are recognised in any EU legislation as well as case law.

European Union (Withdrawal) Bill

Joanna Cherry Excerpts

Committee: 4th sitting: House of Commons
Monday 4th December 2017 Commons Chamber

[Jenny Chapman]

I could not agree more.

[Joanna Cherry (Edinburgh South West) (SNP)]

The hon. Lady is making a persuasive speech. She mentioned the renowned Scottish historian Sir Tom Devine. He, of course, has made the journey from being a supporter of devolution to being a supporter of independence. Does the hon. Lady agree that if the Bill is allowed to drive a coach and horses through the current devolution settlement, a great many more Scots are likely to follow Sir Tom Devine by becoming supporters of independence rather than devolution?

[Jenny Chapman]

I sincerely hope that that will not be the outcome, but I have to admire the hon. and learned Lady’s ability to spot an opportunity and take it.

The Government have never argued that these powers need to be in London or that they intend to hold on to them permanently. Rather, it seems that they feel that tackling the undoubted complexities of considering how to make new arrangements with the devolved Administrations post Brexit belongs in the “too difficult” pile—something to be put off until there is more time and there are fewer distractions. However, there are no time limits on when the Government will cease to hoard the powers. While the hard-line Brexiteers on the Back Benches are promised a time and date—to the very nanosecond—for when they will see powers returned from Brussels, the nations of our Union are told to wait indefinitely. The people of Wales, Scotland and Northern Ireland deserve better from the Government.

The Government agree with Labour and the devolved Administrations that frameworks are needed—I think—and new clause 64 assists them by outlining how that can be achieved. The presumption should be that powers remain devolved as is the case now, and that UK frameworks are created to co-ordinate policy in some areas through negotiation with the devolved Administrations. To do anything else would turn back the clock on devolution—impossible—and cause untold damage to important relationships between Parliaments.

As well as having the motivation and attention to address this issue, the Government need to trust the devolved Administrations. That is why our proposal makes explicit the obligations on each Government and the nature of the frameworks needed. So far, the Government have not exactly shone in their endeavour to develop a UK-wide approach to Brexit, so new clause 65 helps by putting the Joint Ministerial Committee on a statutory footing.

It is important to reflect on the absence of representation from Northern Ireland on the JMC. The suspension of the Executive is deeply regrettable, and permits the neglect of the needs, concerns, ambitions and hopes of the people of Northern Ireland. Their voices must not go unheard at this most critical of moments, but need to be amplified, as it is they who have the most to lose from a chaotic departure from the EU.

--- Later in debate ---

[Jenny Chapman]

I understand what the hon. Gentleman is saying, but I think he is dancing on the head of a pin. We want the creation of the frameworks to be done collaboratively by the devolved Administrations and the Government.

[Joanna Cherry]

Will the hon. Lady give way?

[Jenny Chapman]

I have already given way quite a lot. If the hon. and learned Lady does not mind, I am going to crack on now. She will have a chance to make her own speech, and I look forward to listening to it.

--- Later in debate ---

[Ian Blackford]

The hon. Gentleman makes an important intervention. We are 17 months on from the vote and we are at a very important stage of this Bill.

We are trying to negotiate on the basis that we recognise the threats that we are facing. It is incumbent on the Government to recognise that we have to get agreement between the Government in London and the Governments in Edinburgh, Cardiff and Belfast. It saddens me that we are having eight hours’ debate today and will have eight hours’ debate on Wednesday, and the Government’s approach just seems to be that they are listening. How long does it take them to listen, and how long does it take them to respond to the fact that they are trampling over the powers of the devolved Administrations? The Government in Edinburgh and SNP Members are making it absolutely crystal clear that we do not want to be in the position of a legislative consent motion being withheld. We want to make sure that we can strengthen this Bill to the advantage of everybody, but we need to get the position from the UK Government that they are prepared to respect the Administrations in Edinburgh, in Belfast and in Cardiff.

[Joanna Cherry]

There is a lot of scoffing on the Government Benches. Three Committees of this House have heard evidence about clause 11—the Scottish Affairs Committee, the Exiting the European Committee, and the Public Administration and Constitutional Affairs Committee—and the weight of that evidence from a number of senior, distinguished lawyers from both north and south of the border has been that there are very real concerns that clause 11

“drives a coach and horses through the devolution settlement”.

Those are not the SNP’s words but the preponderance of evidence heard by Committees of this House.

[Ian Blackford]

My hon. and learned Friend makes a strong case. That is why the Government should listen to her, and to the other reasonable voices that have spoken this afternoon and at other times. The Government have to recognise that they are playing with the powers that have been established under various Scotland Acts, and that is not right. The evidence is there from academics and from the Select Committees of this House that have made judgments on the matter, and the Government have a responsibility tonight to reflect on it. They must not push the matter into the long grass and say that they are listening; they have to show that they are prepared to take action.

I will sum up, because I know that many others want to speak. With the overwhelming evidence from experts in the legal profession showing how flawed clause 11 is, the best thing the Government can do is to accept that the Bill needs to be fundamentally amended. They can do that this evening, by accepting the joint Scottish and Welsh Government amendments. Common frameworks will not prevent the imminent constitutional crisis that clause 11 will create. The Government must change this Bill.

--- Later in debate ---

[Paul Masterton]

If the hon. Lady will bear with me, I am coming on to talk about that.

Clause 11 provides that the 111 powers that I have mentioned will be released to Scottish Ministers on a case-by-case basis once UK Ministers are satisfied that it is safe to do so. There is no timescale for that, and the process is unilateral. Under clause 11, the powers, once repatriated from the EU to the UK, are for UK Ministers to exercise or to devolve, as they see fit.

[Joanna Cherry]

The hon. Gentleman is pouring some scorn on the phrase “power grab”. He might be interested to know that the first person to use the words “power grab” in relation to the process was not a member of the Scottish National party, but the former Prime Minister, Gordon Brown.

[Paul Masterton]

The hon. and learned Lady and I perhaps have different definitions of what is interesting.

Ostensibly, amendment 164 and the consequential amendment 165 to schedule 3 are in the names of Opposition Members, but they have in fact been tabled on behalf of the Scottish and Welsh Governments. This distinction is important, and Ministers should be mindful of it. The amendments would turn clause 11 on its head, repatriating all 111 powers directly to Holyrood. Brexit must be delivered in a way that respects devolution, but it would plainly be contrary to the interests of the United Kingdom as a whole for the devolved Administrations in Edinburgh or Cardiff to be able to use powers formerly held at EU level to pull apart Britain’s three centuries old internal market. The fact that Britain is a single employment market, with no barriers of any sort on the movement of people, goods or services is core to the case for the Union.

--- Later in debate ---

[Paul Masterton]

If the hon. Lady was listening, she will have heard me say that I agreed that that was the purpose of the 1998 Act. I am coming on to say explicitly that clause 11, as drafted, is not fit for purpose and must be changed. It does not need to be tweaked a little; it needs to be amended and replaced with a new version. However, I do not consider now to be an appropriate stage in the process at which to demand a new draft to be brought before the House.

I fully accept that this issue is linked to active conversations tacking place between Governments, and I share my hon. Friends’ concerns about the fact that introducing new drafting to reflect where I believe we need to, and should, end up—indeed, where we will more likely than not end up—would pre-empt what are now and are expected to continue to be fruitful negotiations between the UK and Scottish Governments. I am prepared at this stage to give the UK Government the time and opportunity to take forward these matters, on the clear understanding that both sides need to move from where they now are on clause 11. We are beginning to see movement: we can see it in the constructive JMC (EN) talks, the next meeting of which will be on 12 December, and Scottish Conservatives stand ready to help broker a compromise. In our view, the impasse is readily solvable. Most of the 111 powers are technical and regulatory.

[Joanna Cherry]

I ask the hon. Gentleman to seriously consider what he has just said. He said that most of the 111 powers are technical and regulatory. Is he aware that the list affects huge swathes of our justice system in Scotland? Does he consider our devolved justice system and separate legal system to be simply technical and regulatory matters?

[David Mundell]

They are not on the list.

[Joanna Cherry]

They are on the list. You should read it.

[David Mundell]

But not in the form you have said.

--- Later in debate ---

[Joanna Cherry]

The hon. Gentleman keeps referring to the single market of the United Kingdom. Does he agree that what we have in the UK is a unitary market, because we do not have four separate states, but instead have a union of four separate nations? What the EU has is a single market, which is a regulatory alignment of sovereign states. We do not have that in the UK; we have a unitary market. Will the hon. Gentleman use his language more carefully, please?

[Ian Murray]

That is legal semantics. I can buy an animal in Edinburgh and sell it in London, crossing the border with it in the back of my car—not that I would do so, as that would probably be illegal, but this is just to highlight the point—and do that in one single market, and not have any customs checks or transfer paperwork, apart from the legal paperwork required, and I could also do that across the EU. Outside the legal semantics, the point I am making is that the SNP says the EU single market is a good thing, and I agree, but says the UK single or unitary market is a bad thing, and I disagree. We also have the Conservative party saying that the UK single market is the most wonderful single market in the world, and I agree, but it is also saying that the EU single market is a bad thing and we must come out of it, but we can keep all the benefits of that at the same time.

[Joanna Cherry]

The crucial difference between the single market and the unitary market is that in the single market there are at present 28 sovereign states who meet together to make their rules from the top down, whereas in the UK’s unitary market the rules are imposed from the United Kingdom. This supports the hon. Gentleman’s argument, because his argument, which I agree with, is that these frameworks across the UK should not be imposed from the top down, but should grow up organically from the bottom.

[Ian Murray]

We have just had a bombshell there; the hon. and learned Lady has just told us that she wants to stay part of the UK. That is what we can surmise from that intervention, and I completely agree with her that the best way for Scotland, and Wales, to thrive is to stay part of the UK. Indeed, in my view, the best way for the UK to thrive is to stay part of the single market and customs union of the EU, and all of these issues would therefore fall away, because we would not need clause 11, because we would not need the framework in place to be able to put UK frameworks together, because we could stay within the frameworks that are already in place. It is strange that we will spend a significant amount of time in this Chamber, in the Committee Rooms of this House, and in all the devolved Administrations discussing frameworks that we already currently have.

The Government strategy is that they want every benefit they currently have from the EU while not being a member of the EU. I suggest that if the Government want to achieve that, they should stay in rather than wrench themselves out. That would resolve all the problems, and would have saved the Prime Minister lunch this afternoon, because they would have had a very straightforward solution to their problem.

I will not press my amendment to a vote if those on my Front Bench are going to press amendment 42, because they are very similar in nature. My Front-Bench colleagues’ amendment is much more technically efficient than my proposal, and we know that technically ineffective amendments tend to be criticised. I will therefore support my Front-Bench colleagues’ proposal, and finish by saying that the simple solution for Northern Ireland, Scotland and Wales would be to stay in the single market and the customs union.

--- Later in debate ---

[John Lamont]

I just want to make a little more progress.

The UK Government have made it crystal clear that clause 11 is temporary until powers can be devolved. It is simply wrong to suggest that the Bill is some sort of power grab by Westminster. I suggest that this is just another chapter in the SNP’s book of grievance politics.

[Joanna Cherry]

The hon. Gentleman makes a point about the power grab, but he needs to understand that this phrase is not just used by the SNP. As I said earlier, it was first used by the former British Prime Minister, Gordon Brown. Government Members have been surprised that I am quoting Gordon Brown, but the Conservative and Unionist party needs to understand that all the Scottish parties—apart from the Conservatives—are united in their desire to protect the devolution settlement. The hon. Gentleman is describing what he hopes will happen, but clause 11 will not enable that to happen, because it involves top-down imposition, rather than organic upwards agreement.

[John Lamont]

The hon. and learned Lady is misrepresenting the Scottish Conservative and Unionist party’s position. We are completely committed to devolution. We have delivered more powers to the Scottish Parliament than any other party in this Chamber and we will continue to do so after Brexit. It is completely disingenuous to suggest anything else.

[Joanna Cherry]

On a point of order, Mr Crausby. The hon. Gentleman has used the word “disingenuous”. We have already heard from the Chair once today that that word ought not to be used about another hon. Member. I very much hope that the hon. Gentleman is not suggesting that I am being disingenuous. We might disagree, but I am not being disingenuous. I invite him to withdraw the comment.

--- Later in debate ---

[John Lamont]

I will learn, Mr Crausby, and I am happy to withdraw the remark.

The hon. and learned Lady said that the Scottish Conservative and Unionist party was in some way not supportive of devolution, which is just not the case. She has given me the opportunity to repeat my point: this party has delivered more powers to the Scottish Parliament than any other party in this Chamber, and it will continue to do so after Brexit.

[Joanna Cherry]

Will the hon. Gentleman give way?

[John Lamont]

No; I think I have heard quite enough from the hon. and learned Lady this evening. Despite the rhetoric of the Scottish National party, the opposite is in fact true, as the UK Government and the Scottish Government are relatively close to reaching an agreement.

--- Later in debate ---

[The Temporary Chair (Sir David Amess)]

Order. Before I call the next speaker, I remind the Committee that the debate finishes at 18 minutes past midnight. Many Members are waiting to speak and I want to give the Minister plenty of time to respond to the debate. So unless colleagues keep the speeches to about 10 minutes, there will be any number of disappointed Members.

[Joanna Cherry]

I rise to support the amendments standing in the name of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford), and those that have been drafted by the Scottish and Welsh Governments, which have cross-party support from the SNP, the Labour party, Plaid Cymru and the Liberal Democrats.

I want to dispel a myth emanating from Conservative Members before I look at clause 11 in any detail: the idea that there is some sort of division between the position of my Scottish Government colleagues and the SNP. I can assure those Members that that is not the case and we regularly meet the Scottish Government Brexit Minister, Mike Russell. Let me tell Conservative Members what Mr Russell told a number of Sunday newspapers yesterday. He said that these cross-party devolution amendments are “non-negotiable” and that, if the UK Government want the SNP to recommend support for the Bill in the Scottish Parliament, they must be passed. He continued:

“I don’t want to leave anybody in any doubt, if the Bill cannot be amended—”

as per these amendments—

“there cannot be a legislative consent motion, there cannot be the progress that the government wants.”

So let there be no doubt of the SNP position on this, which is the position of the Scottish Government and of the Welsh Government, and which has the support of the Lib Dems, Plaid Cymru and the Labour party in this Chamber.

It is important to focus on clause 11. We have heard a lot of general rhetoric today, but what we are actually looking at is that clause. I am not going to use my own analysis of it. I am going to use the analysis of much more eminent lawyers than myself. Let me start by briefly declaring an interest, as I am going to quote the views of the Faculty of Advocates in Scotland on the Bill and I am a member of the faculty, although I am no longer practising. It has pointed out that 111 areas were listed as potentially requiring a common policy framework and that the list is too long, its content is too broadly drawn and some of the 111 areas were so imprecise

“as to be incapable of meaningful understanding”.

It said that the proposed approach of this Government to the European Union (Withdrawal) Bill

“threatens to encroach on matters that are already devolved and legislated on by Holyrood under the current settlement.”

That is the view of the Scottish Bar, of which I am a member; I wish I could say they were all members of the SNP, but they are not, as they comprise people from all political persuasions and none.

The hon. Member for Arfon (Hywel Williams) referred to the evidence given to the Brexit Select Committee by Laura Dunlop, QC, who is the faculty’s spokesperson and head of its law reform committee. The Bingham Centre for the Rule of Law has convened a group of experts to look at the Bill, under the chairmanship of the right hon. and learned Member for Beaconsfield (Mr Grieve), who was in his place earlier. It, too, has been extremely critical of clause 11:

“In a constitution where legislative power is divided between the national parliament and devolved parliaments, uncertainty about the division of legislative power undermines foreseeability and predictability about the overall legal framework and is therefore inimical to the Rule of Law.

Clause 11 of the Bill is such a law: it re-defines the scope of devolved legislative competence after Brexit.”

Those are the words of a group of expert lawyers convened by the Bingham Centre for the Rule of Law. It is not an SNP partisan view, but the view of a cross-party group of lawyers.

--- Later in debate ---

[Pete Wishart]

My hon. and learned Friend is absolutely right. The Scottish Affairs Committee has not heard one dissenting voice to the fact that clause 11 is thoroughly bad for devolution. It is not just all the constitutionalists and all the legal experts who agree with that; the Conservatives agree with it too. They do not believe that clause 11 is fit for purpose. What can she do to encourage them to join us this evening to ensure that we make progress and change the clause significantly?

[Joanna Cherry]

I am encouraging those Conservatives to listen to the experts who have given evidence to the various House of Commons Committees,whether orally or in writing. I have mentioned several of them. May I mention what Dr Jo Hunt, from the University of Cardiff, said to the Exiting the European Union Committee? She said:

“This should be a profound constitutional moment, where the nature of the UK is properly addressed, and a debate and discussion is had about what the United Kingdom is for and what the roles of the various parties in the United Kingdom are. We have had any number of Select Committee reports from the Commons and the House of Lords dealing with interinstitutional relations, intergovernmental relations, and devolution”.

Now is the moment, when we are allegedly taking back control, to look carefully at how we distribute those powers within the nations of the United Kingdom. We should not simply bring them back in one box from Brussels, rest them at London and leave it to London to decide when and if Edinburgh and Cardiff ever get sight of that power.

There is a terrible irony here. Many Brexiteers went on at great length about how Brussels imposes its will on the United Kingdom, but that is actually a fundamental misunderstanding of how the European Union works. As has been explained, it works by a number of sovereign nations pooling their sovereignty and participating in a process of decisions. If anyone on the Conservative Benches really is a Brexiteer who believes in taking back control and does not like the way, in their opinion, Brussels has imposed on the UK, surely that should make them even more motivated to ensure that the centre—Westminster—does not impose on the constituent nations of the UK.

[Luke Graham]

We have all raised concerns about clause 11, and we are trying to constructively address them. The hon. and learned Lady makes her position about devolution clear, but she also talks about a chance to refresh the whole constitutional settlement for the United Kingdom. Will she work constructively with Members on the Government Benches to address issues such as air quality, which is devolved? It would be better if we had a joined-up UK approach and if that were reserved with climate issues and other such issues, so that we look effectively to get the best outcome for our constituents and not just go on to political dogma.

[Joanna Cherry]

The Scottish National party has always worked constructively with all parties to ensure that the principle of subsidiarity is respected within these islands. However, what we are not in the business of doing is simply lying supine while all these powers are brought back from Brussels and left here at Westminster, with absolutely no time limit—[Interruption.] The hon. Member for Stirling (Stephen Kerr) may not like it, but this is the weight of the evidence that we have heard about the effect of clause 11. It is not my view; it is the view of many others.

[Several hon. Members rose—]

[Joanna Cherry]

I will continue my point.

We are told that it is imperative for everything to be imposed on Scotland, Wales and indeed Northern Ireland from the top down, because we have a UK single market.

[Stephen Kerr]

Will the hon. and learned Lady give way?

[Joanna Cherry]

No, we have heard a lot from the hon. Gentleman. I only have a little time left, and I want to develop my point about the single market, because it is very important. I am indebted to the Scottish blogger and writer Paul Kavanagh—better known on these Benches as the Wee Ginger Dug—for my thoughts on this matter. He has pointed out that there is no such thing as a UK single market. At the moment, the United Kingdom is a unitary state, and what exists in the UK is the internal market of a unitary state. A single market refers to the situation where there are several distinct and discrete national entities coming together from the bottom up in a mutually agreed and negotiated regulatory framework. That is what the EU is at present. It is not what we have in the United Kingdom at present. Indeed, after Brexit, if this Bill goes through unamended, the unitary state of the United Kingdom will be even more centralised than it is at present.

At the moment, the EU states decide collectively what regulations they want to govern the EU single market. On the basis of the Bill as currently drafted, what will happen is that Ministers of the Crown—by the way, that does not include Scottish Ministers; the definition just talks about Cabinet Ministers—will decide on these frameworks, and they will be imposed on us.

I am conscious of what you said, Sir David, so I will bring my remarks to a close, but I will give way to the hon. Gentleman.

[Mr Paul Sweeney (Glasgow North East) (Lab/Co-op)]

On the definition of what constitutes a single market and a unitary market, my interpretation is that any marketplace’s singularity is simply defined by the friction in the trade and the commerce carried out within it. By definition, it is not really something that we can simply sign up to or leave. It is about the extent to which there is a commonality of regulatory and trading arrangements, and cultural and institutional relationships. Therefore, this definition does not really hold water in that respect.

[Joanna Cherry]

The distinction I am drawing is between a single market and a unitary market. I am saying that the European Union is a single market because it is a collection of sovereign states that come together and participate in making common regulations. The United Kingdom, as framed by this withdrawal Bill, will not be such a single market. It will be a unitary market where the regulations and the frameworks are imposed from the top down. That is the distinction that I seek to make.

[Stephen Kerr]

Will the hon. and learned Lady give way?

[Joanna Cherry]

As I said, I am drawing my comments to a close.

I want to address one of the many points we have heard from the Government Benches. I think it was the hon. Member for Aberdeen South (Ross Thomson) who said that he is upset and disappointed that the issue of independence is still on the table. Well, I will tell him why it is still on the table; today gives us a good example. The majority of people at the last Scottish election voted for Members of the Scottish Parliament who want another independence referendum—it is called democracy —and the Scottish Parliament itself has voted that there should be another independence referendum if it is necessary because of the Brexit process. But the reason why so many of us in Scotland are interested in the notion of independence really arises from the current crisis in which the United Kingdom finds itself. I will finish by quoting the First Minister of Scotland, who today said:

“Right now, Ireland is powerfully demonstrating the importance of being independent when it comes to defending your vital national interests.”

[Andrew Bowie (West Aberdeenshire and Kincardine) (Con)]

This debate concerns all constituent countries of the United Kingdom, but I will reserve my remarks to Scotland as I represent West Aberdeenshire and Kincardine.

As a Member of Parliament of the 2017 vintage, which is a very fine vintage, I am finding—along with everyone else, I am sure—that one of the most common questions asked of me on the doorsteps and in constituency surgeries is, “How did you vote in the referendum on membership of the European Union?” On such occasions, I deploy one of two answers. I either say, “I’m terribly sorry that I did vote to remain, but I promise you that the United Kingdom is leaving the European Union, and we will make a success of it”, or I answer, “Yes, I know. Like you, I voted to remain, so I’m sorry, but the fact is that we are leaving the European Union. And, you know what? I think we will make a success of it.” That is very easy. Being a Scottish Member of Parliament, another regular inquiry is whether I believe that powers returned from Brussels should be directly transferred to Holyrood. It is not a simple question. [Interruption.] No, it is not, and it requires more than a simple answer. Unfortunately, that is hard to get across on the doorstep, or even in this Chamber.

European Union (Withdrawal) Bill

Joanna Cherry Excerpts

Committee: 6th sitting: House of Commons
Tuesday 12th December 2017 Commons Chamber

[Tommy Sheppard]

No, the implication was clearly given that control would be taken back by the people. In fact, it seems that control is being taken back by the Executive. In as much as power is going anywhere, it is not coming into this Chamber, certainly at the moment.

[Joanna Cherry (Edinburgh South West) (SNP)]

I was struck by the rather sweeping statement by the right hon. Member for West Dorset (Sir Oliver Letwin), in reference to clause 7, that we apparently all know what “appropriate” means and that the courts will know what “appropriate” means. Does my hon. Friend, like me, look forward to hearing from the Minister what “appropriate” means, and does he, like me, agree with such distinguished lawyers as those at the Law Society of Scotland and JUSTICE that “appropriate” gives far too wide a discretion to the Government?

[Tommy Sheppard]

I do indeed, and I will come on to that in just one moment.

--- Later in debate ---

[Tommy Sheppard]

I accept that these things may be challenged, but I am trying to argue for a democratic process whereby it is the elected representatives of the people who debate and choose the policy direction in various areas.

[Joanna Cherry]

Is the point not really that, as has been pointed out by JUSTICE and the Law Society of Scotland, the term “appropriate” is so wide that it gives the courts a breadth of discretion that they themselves have told us that they do not want?

[Tommy Sheppard]

Indeed. That takes me nicely to my next point, which concerns the word “appropriate”.

--- Later in debate ---

[Mr Baker]

I will see whether, before I sit down, my memory can be jogged on an example of case law, but I am only a humble aerospace and software engineer and I do not mind saying to the right hon. Lady that I have sometimes observed that we dance on the head of a pin over particular words. In order to protect the law and the public purse, I think the Law Officers would require me to take appropriate advice from lawyers on the nature of these words and to abide by it as we proceed through the legislation.

[Joanna Cherry]

Earlier in our debate, the right hon. Member for West Dorset (Sir Oliver Letwin) said that we all know what “appropriate” means and so would a court. Can the Minister tell us what “appropriate” means in this context?

[Mr Baker]

I think what we would say to the hon. and learned Lady is that “appropriate” will follow the plain English definition, which she will find in various places, but what I want to do is move on.

I want to set out why it is important that the test of appropriateness extends to the use of the power in clauses 8 and 17, to which the right hon. Member for Ross, Skye and Lochaber has tabled amendments 205, 207, 208 and 216. For example, leaving the EU, the customs union and the single market may alter the way in which the UK complies with its international legal obligations in relation to taxation, and there will not always be a clear single choice about how to comply with those obligations. Clause 8 will give Ministers the flexibility, as necessary, to make those changes. Using the word “necessary” would risk constraining the use of the power to the extent that where it is appropriate for the UK to adjust our domestic legislation to ensure compliance with international obligations but where there are multiple ways to do so, we might not be able to ensure compliance with our important obligations under international law, thereby undermining the core intention of clause 8.

European Union (Withdrawal) Bill

Joanna Cherry Excerpts

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

[Mr Rees-Mogg]

I am very grateful to the hon. Lady for that. I think the point is important, and we should try to remember it.

A lot of the legislation that we pass can be explained to everybody—even to ourselves—in an understandable way. If we look at the Treasury Bench, we see some of the finest brains in Britain. They get up at the Dispatch Box and explain to us what is going to be passed into law, in terms that even Members of Parliament—including those of us who are not learned Members—can understand. I think that laws can be explained simply, and that is a worthy ambition.

New clause 21 makes the important point that during our period of membership, the EU increasingly turned out law that people did not understand. We have a golden opportunity to improve the quality of the legislation that we pass, improve people’s general understanding of it and improve our own understanding of it. Clarity is just and fair. I agree with my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), the former Chancellor of the Exchequer, that we want to apply this to our own work as well. There is no point in complaining about the European Union in that regard, but making our own laws incomprehensible. As an aside to what he said, one of the reasons why there is so much tax avoidance is that tax law is written in so complicated a manner.

Amendment 348 is important, and as the hon. Member for Sheffield Central (Paul Blomfield) rightly said, it touches on the subject of the Humble Address that was brought forward on 1 November. The Government have dealt with the matter, and it is important to look at what they have done in response to the Humble Address. Many Conservative Members have opposed the European Union on the grounds of parliamentary sovereignty and an understanding of the nature of our constitution. We must recognise that a Humble Address motion is unquestionably binding. That has always been the tradition of this place. It is quite clear from “Erskine May” that there is a profound duty on the Government to fulfil the terms of any Humble Address. It will be interesting to see how often the Opposition use that procedure over the next few years to try to get information from the Government.

It is worth noting why the Humble Address procedure fell out of practice. I think the real reason was that Governments tended to command sufficient majorities in the House that a Humble Address motion they opposed would not get through. In the situation of a very slim overall majority, with the help of our friends from the Democratic Unionist party—

[Joanna Cherry (Edinburgh South West) (SNP)]

Expensive help.

[Mr Rees-Mogg]

It is not expensive help. That is quite wrong. As the hon. and learned Lady knows, the £1 billion is less than was spent in Northern Ireland in the last Parliament. It is quite right that a Unionist party should help to form a Unionist Government.

Humble Addresses fell out of favour because they simply could not be got through. We need to look at how the Government responded to the Humble Address. My initial reaction was that the Government had not fulfilled the terms of the Humble Address, because it was not initially clear that the impact assessments did not, in fact, exist. The first indication was that the Government were nervous about producing information —they never said “impact assessments”—that might undermine the negotiating position. That seemed a sensible point to make, but not one that could conceivably override a Humble Address, which took precedence over it.

As the information was presented to the Exiting the European Union Committee, it became clear that the Government had been as helpful as they possibly could have been in producing information that had not, in fact, been requested by the Humble Address, which asked for something that did not exist. I think that technicalities in this field are important, and it is rational for Governments to follow them.

I happen to think that that is a lesson for the Opposition. If they are to call for Humble Addresses, they must make sure that those Humble Addresses are correctly—even pedantically—phrased to ensure that they are asking for something that really exists. I feel that the hon. Member for Sheffield Central was being unfair when he criticised the Government for failing to produce information that did not exist. The Government did as much as they could to produce the two folders—the 800 pages—of sectoral analysis. When we look through the record, we see that that is what the Government always admitted existed. The Government were careful to answer questions by referring to sectoral analyses, even if the questioner asked for impact assessments. That, I think, is where the misunderstanding developed that such impact assessments existed.

--- Later in debate ---

[The Second Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

I have the results of today’s deferred Divisions—I know you have all been anxiously awaiting them—which I will now announce. In respect of the question relating to local authorities (mayoral elections), the Ayes were 317 and the Noes were 231, while of those Members representing constituencies in England and Wales, the Ayes were 293 and the Noes were 221, so the Ayes have it. In respect of the question relating to combined authorities (mayoral elections), the Ayes were 317 and the Noes were 231, while of those Members representing constituencies in England, the Ayes were 285 and the Noes were 195, so the Ayes have it.

[The Division lists are published at the end of today’s debates.]

[Joanna Cherry]

It is always a little daunting to follow the hon. Member for North East Somerset (Mr Rees-Mogg). I thank him for his gracious offer that an SNP politician might wish to stand in his constituency, but I can inform him that the only Scottish politician looking for a safe seat in England at the moment is the leader of the Conservative and Unionist party. The rest of us are quite happy with our seats in Scotland, safe or otherwise.

I wish to speak to amendments 77 and 76, in the name of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) and other SNP Members. Clause 13 and schedule 5 deal, as we have heard, with rules relating to publication and rules of evidence. SNP Members are less concerned with the rules relating to publication, although I would be interested to hear the Government’s response to the pertinent questions raised, as always, by the right hon. and learned Member for Beaconsfield (Mr Grieve). We are very happy with the idea—in the terms of schedule 5, paragraph 1—that:

“The Queen’s printer must make arrangements for the publication of”

these relevant instruments, but we share the concern that he very ably articulated as to why there might be certain instruments that would fall into a category that should not be published. It seems most odd.

We also welcome the amendments tabled by the hon. Member for Nottingham East (Mr Leslie) and in the name of the Labour Front Bench. We absolutely support any amendments that seek to achieve transparency and clarity. We also very much support amendment 348, which seeks to revisit the issue of impact assessments, because we share the concerns that were expressed from the Labour Front Bench, and by others who have intervened, about the sorry saga of the impact assessments. As my hon. Friend the Member for North East Fife (Stephen Gethins) explained in relation to a question he asked in 2016, there were occasions when the impression was given on the Floor of the House that economic impact assessments existed, no matter what might have been said in response to the Humble Address.

It is also worth bearing in mind that the Humble Address related only to sectoral impact assessments. It did not relate to the impact assessment that has been made in relation to the Scottish economy. It is worth reminding ourselves that both the Secretary of State for Exiting the European Union, in response to a question I asked when he gave evidence before the Exiting the EU Committee, and the Secretary of State for Scotland, in response to questions raised by the hon. Member for Edinburgh West (Christine Jardine), said that impact assessments in relation to the Scottish economy do exist, and that they will be shared with the Scottish Government.

[Stephen Gethins]

My hon. and learned Friend makes a powerful point. Will she put it to the Minister that the Secretary of State for Exiting the European Union told me in October 2016 not only that there were 51 sectors rather than 39—there was some confusion, and I thank the hon. Member for North East Somerset (Mr Rees-Mogg) for giving way to me on that—but that there was also an assessment that was promised to the Scottish Government back in 2016?

[Joanna Cherry]

Indeed. And more recently than 2016, following up on that, evidence has been given to two Select Committees of this House that impact assessments relating to the Scottish economy exist, and will be shared with the Scottish Government. I can tell the House that they have not as yet been shared with my colleagues in the Scottish Government, and we have not as yet had any clear backtracking as to the existence of these documents. No doubt that is something that will be pursued in the new year, but I very much welcome the commitment of Labour Front Benchers to continuing to pursue the issue of impact assessments because, as others have said, either they exist and they are not being shared with us—and we know that they do exist in relation to Scotland because we have been told that by two Government Ministers—or they have not been carried out, which is an extraordinary dereliction of duty by the Government if they care at all about protecting the economies of the various nations of these islands.

In relation to the SNP’s amendments to clause 13 and schedule 5, we are very much indebted to the expert assistance we have received from briefings prepared by the Law Society of Scotland for the benefit of all SNP Members, and we have worked closely with the society to inform some of our more legalistic amendments. Those amendments—76 and 77—stem from written evidence that the society has provided to various Committees of this House and the other place.

In the society’s response to the White Paper “Legislating for the United Kingdom’s Withdrawal from the European Union”—which many of us have now forgotten about; it seems a lifetime ago—the society recommended that once the process of identifying European Union-derived UK law was complete, that body of law should be collected in an easily identifiable and accessible collection. We believe that schedule 5, paragraph 1 is a significant step forward in that direction, and will be of significant assistance to those to whom this body of law will apply and their advisers, but we agree with the hon. Member for Nottingham East that matters would be assisted if they were published in plain English. We also agree with the right hon. and learned Member for Beaconsfield that the Government need to tell us why they want to give themselves the power to withhold publication of some of these instruments. It is hard to imagine what reason there could possibly be.

--- Later in debate ---

[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).

[The Solicitor General (Robert Buckland)]

indicated dissent.

[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.

[Mr Grieve]

indicated assent.

--- Later in debate ---

[Joanna Cherry]

I am very grateful to the right hon. and learned Member for Beaconsfield for agreeing with me on this point. I would expect him to do so, because he, like me, will be paying very careful regard to what current senior judges and retired judges are saying.

I would like to conclude by quoting what Lord Thomas said to the House of Lords Committee after Lord Neuberger and Lord Hope had given their evidence. He said that he entirely agreed:

“It will be a very real problem for future judicial independence and the rule of law if this”—

the guidance—

“is not clarified.”

Put briefly, the problem is that leaving domestic courts free to make independent judgments on such crucial constitutional issues raises the prospect of politicising the judiciary’s institutional role in the Brexit process, resulting, potentially, in further regrettable attacks on the integrity of UK judges like those we saw earlier this year and last week. I therefore ask the Minister to address this problem before Report. I have no doubt that it will be addressed in the House of Lords, but I think it should be addressed in the elected House. The elected House should sort this out and not leave it to their lordships.

[The Solicitor General]

Given the spirit in which the hon. Member for Nottingham East (Mr Leslie) moved new clause 21, I was anticipating some form of Christmas truce, and that we would perhaps emerge from our trench lines and play football. As the debate went on, however—this is inevitable on such issues—divisions soon emerged. We have had quite a fierce debate on aspects of the policy surrounding our exit from the EU. First, there was the question of when an impact assessment is not an impact assessment. We then—I am not criticising the hon. and learned Member for Edinburgh South West (Joanna Cherry)—started down the road of, in effect, reopening the debate on clause 6(2). I did raise my eyebrows at her. I take the point that there is a link with schedule 5, but she will immediately recognise that the schedule tries to answer the old question of whether the recognition or understanding of EU law for the purposes of judicial interpretation is a question of fact or a question of law. It is a mechanism to an end, rather than the means of interpretation itself, which is of course within clause 6.

[Joanna Cherry]

My point is that, having rightly conceded that it is a question of law, the Government need to address how that law is interpreted by the judiciary.

--- Later in debate ---

[The Solicitor General]

My right hon. and learned Friend is not just a lawyer but an historian. He will know that a previous Solicitor General, the late Lord Howe, steered the Bill that became the 1972 Act through the House of Commons. I nod to his memory. He knew what he was about, and he helped to produce an extremely important and effective piece of legislation. I make no apology for replicating aspects of it in this Bill.

Let me reassure the hon. and learned Member for Edinburgh South West that the fact that the provision is in a schedule is not significant. It is on the face of the Bill—in primary legislation—and it receives the same high level of scrutiny that it would if it were one of the clauses. I think it only right that clause 13 is drafted in a general way and there is particularity in the schedule. That is good, modern drafting practice, as I am sure the hon. and learned Lady will acknowledge, given her extensive study of other Bills on which we have worked together.

[Joanna Cherry]

That was not just my concern. It was a concern expressed by the Law Society of Scotland which, as I have said, informed the SNP amendments. May I take up a point made by the right hon. and learned Member for Beaconsfield (Mr Grieve)? These are extremely sweeping powers, but they are tucked away in a schedule.

[The Solicitor General]

I take the hon. and learned Lady’s point with the utmost seriousness, as I hope I always do, but, with respect to her, I think there is no real significance to be attached to the fact that the provision is in a schedule. This is hardly the longest piece of legislation that the House will have seen, but it will certainly be one of the most pored over—and rightly so. The hon. and learned Lady is doing justice to that through her interventions.

Let me now deal directly with new clause 21. Of course I recognise the concerns raised by the hon. Member for Nottingham East, but I do not consider it feasible to impose a statutory duty requiring summaries of all retained direct EU legislation. The scale of that task would be hard to overstate. I have used the word Sisyphean before, and I think that it applies in this case.

According to EUR-Lex, the EU’s legal database, there are currently more than 12,000 EU regulations in force. To impose a statutory duty of requiring plain English summaries of them would, I think, be disproportionate, given that many explanatory materials have already been issued by the EU about EU law—and, indeed, by UK bodies, including the Health and Safety Executive. One example is documentation on the registration, evaluation, authorisation and restriction of chemicals regulations published by the European Chemicals Agency. That measure has been mentioned many times in the Committee. I believe that, at present, the law is accessible.

--- Later in debate ---

[Angela Smith]

The right hon. and learned Member for Rushcliffe (Mr Clarke) and my hon. Friend the Member for Nottingham East said that Ireland raised the point about the customs union and the hard border. That is why it is relevant to this clause. It is about trade between those two countries—the UK and the Republic. The point is that it is also about avoiding the hard border in relation to our other, very important, relationships with Ireland.

I ask every Member of this House to bear in mind the emotional and powerful speech made last week by our hon. Friend the Member for North Down (Lady Hermon). It is really important that we remember those days when the hard border between the two countries, and the troubles, delivered so much devastation, hatred and agony to the people of Northern Ireland. On those grounds alone, I ask people to support new clause 13 tonight, and I ask Members on the Opposition Benches, including Members of my own party, to support the new clause, because to do so is in the interests of the country and in the interests particularly of our friends in Northern Ireland.

[Joanna Cherry]

I rise to speak to new clause 44, which is in my name and those of a number of Opposition Members, and was moved by my hon. Friend the Member for North East Fife (Stephen Gethins).

This very important new clause would require the Government, a year after the Bill is passed, to prepare an independent evaluation of the Act in respect of the health and social care sector across the UK, after consulting with the devolved Governments. As well as cross-party support on the Opposition Benches—I am very grateful for the support of the Labour party and others—it has the support of 57 organisations that work in the sector. It was inspired by the Camphill movement, which will be familiar to many Members. It has a base in my constituency, in Tiphereth in the Pentland hills. The movement has been inspiring people to realise the potential of those with learning and other disabilities for many years. Camphill has many bases across Scotland. I very much hope Scottish Conservative MPs who have a base in their constituency will support the new clause, because it is not about stopping Brexit or confounding the Bill but about measuring the impact of the Act on employment and funding in the health and social care sector.

I am delighted that so many organisations across the United Kingdom have lent their support to new clause 44. I say to those on the Government Front Bench that tonight there are many people across the UK watching from the 57 organisations in the health and social care sector. They were watching earlier at Prime Minister’s questions when the Prime Minister told us how much healthcare matters to her and how dear the NHS is to her. I ask them to remember that many, many EU nationals work in the health and social care sector across the UK, not just in organisations such as Camphill. I would also say that EU funding has been very important to those organisations.

I ask the Government to set party politics aside for once and support the new clause. I ask them to look at the list of 57 organisations who support it—many Government Members will have them in their constituencies—because they want to know about the impact of the Act on the health and social care sector. All the new clause asks the Government to do is commission an independent evaluation of the Act’s impact on the sector.

There are many political things I could say about the Bill, but I am not going to say them this evening. With an eye on the time, I am going to appeal to the Government’s decency—for the record, I say to the many organisations watching tonight that I am sorry I have so little time—and ask them to throw party politics aside for once. Give us something out of the Bill and support the new clause. It has cross-party support on the Opposition Benches and support across the nations of these islands.

[Stephen Kinnock]

I raise to support amendment 43. Hon. Members will know that this year marks the 150th anniversary of Walter Bagehot’s “The English Constitution”. At the heart of Bagehot’s masterpiece is the definition of the expressive function of this place, meaning that it is our duty as parliamentarians to express the mind of the people on all matters that come before it.

Amendments 381 and 400 are a betrayal of the expressive function of this House. They are a silent coup d’état masquerading as a technical necessity, so before we go through the Division Lobby this evening, let us reflect on what Bagehot would think of them, and of the Government’s behaviour throughout this process. The fact is that he would be appalled. He would be appalled at the attempt to sideline Parliament on the most important issue that has faced our country since the second world war, and he would be appalled by the direct assault on the expressive function of this place.

There is, however, a broader point that goes to the heart of our political culture. Bagehot always believed, and I have always agreed with him, that Britain is a land of common sense, compromise and realism, but the Brexit referendum has replaced moderation with division and realism with dogma. I say that the wild men of Brexit have been allowed to drive this debate for too long. I say that amendment 43 represents an opportunity for us in this House this evening to take back control and to return moderation, compromise, realism and pragmatism to their rightful place at the heart of our political system and culture.

European Union (Withdrawal) Bill

Joanna Cherry Excerpts

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[Mr Speaker]

Order. I will take Joanna Cherry next and then Mr Kenneth Clarke.

[Joanna Cherry (Edinburgh South West) (SNP)]

I rise to discuss amendment 7, which is in my name and those of my hon. Friends and other Members and relates to the charter of fundamental rights, and amendments 42 and 43, which are in my name, and to give support to amendment 55, which was tabled by my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who will be addressing it in due course. The amendments raise issues relating to the protection of fundamental rights, about which we have already had quite a degree of discussion today, and to the justiciability of those rights and their legal certainty in this country and its jurisdictions after Brexit. The amendments tabled by the Scottish National party have the support of the Law Society of Scotland, and those that relate to the charter have widespread support, including from the Equality and Human Rights Commission. I am also interested in the wording of amendment 4, which was tabled by the official Opposition, and if I do not press my amendment, they can count on the SNP’s support should they press amendment 4 to a vote.

The questions raised by the amendments have all yet to be answered adequately by the Government. As the right hon. and learned Member for Beaconsfield (Mr Grieve) alluded to earlier in his erudite contribution, the Government’s approach to the detailed and widely held concerns about aspects of the Bill tends to be rather dismissive or deals with them airily and in generalities. At this stage, before the Bill goes to the other place, which is unaccountable and undemocratically elected, it is incumbent on the Government to address the questions about clauses 5 and 6 that were directed to them in Committee, rather than to continue to deal in the generalities that they have used so far.

The hon. Member for Hove (Peter Kyle), who is no longer in his place, made a valid point earlier. When we hear constant reassurances from Government Members that this Parliament could not possibly do anything to contravene fundamental rights, we do not need to look back very far into our history, or into the lifetimes of many in this House, to see a prolonged period when the rights of gay people were denigrated by a Conservative Government through the use of section 28.

[Anna Soubry]

That was a long time ago.

[Joanna Cherry]

It was not that long ago. Some of us were at school or were students at the time and fought very hard against it. Some of us still find it rather irksome to see the modern Conservative party presented as a great defender of gay rights, because we remember the years when it was not. It has seen the light since then and that is a good thing, but the contravention of human rights is something that Governments do from time to time, which is why it is necessary to have protections that go over and above the whims of the party in power.

[Anna Soubry]

I am grateful to the hon. Lady for giving way, because I think it needs to be put on the record that, as a Conservative, I could not be prouder of what we achieved between 2010 and 2015, when we introduced equal marriage. I also pay tribute to the fact that the leader of the Scottish Conservatives happens to be gay. We just need to move on from all this. We should not talk about the past, but look to the future. We are very proud of our history as it now is in the Conservative party.

[Joanna Cherry]

I am sorry that the right hon. Lady has failed to take my point, which is that this is not about what has happened over the past five years, when there has been cross-party support across the United Kingdom—apart from the Democratic Unionist party—for things such as equal marriage. I am talking about recent history and my lifetime as a gay woman. When I was at school and when I was a student, the Conservative party had a policy of completely quashing the aspirations of gay people. We were not even allowed to hear about what our lives might be like when we grew up. That is an example of why we need protections that go over and above the Government and the majority of the day.

Conservative Members do not like to hear it, but there are other similar examples from our recent history. Try telling the members of the nationalist and Catholic community in Northern Ireland in the 1960s and ’70s, whose civil liberties and human rights were routinely undermined, that they were defended by this House. They are now, and it is wonderful that we have moved on, but those rights were not protected in the past—in our lifetime—and that is why we need independent support for fundamental rights. It simply will not do for the Government to say that we can get rid of the charter and that all the rights in it will be protected in United Kingdom law, because they are not. I gave an example in Committee of where such rights were not protected—namely, the loophole in the Walker case in the Supreme Court, but we have yet to hear how the Government propose to close the loophole—and there are other examples.

The hon. Member for Sheffield Central (Paul Blomfield), the Opposition spokesman, made the point that the cat was rather let out of the bag when the new Under-Secretary of State for Exiting the European Union, the hon. Member for Fareham (Suella Fernandes), wrote an article for The Daily Telegraph last year—I mentioned this in Committee—saying that it was right to get rid of the charter because it contained many rights that she would like to see the back of. I wonder whether that isolated attack on the charter, as the one bit of European law that the Government do not want to bring into UK law, is connected to their previous antipathy to the Human Rights Act and the European convention on human rights. We have been hearing conflicting noises from Government Members about their attitude to the ECHR and the Human Rights Act, and I would be interested to hear the Government’s long-term proposals. We have a new Justice Secretary; what is his view on the matter?

In any event, it is important for us to bear in mind that there are many voices from different parts of British society who want to keep the charter, including all the Opposition parties, the devolved Governments in Scotland and in Wales, large parts of the legal profession, significant parts of the judiciary, respected think-tanks and respected non-governmental organisations. It is time for the Government to take note of views held beyond the House and beyond their own party. This is similar to the attitude the Government take towards the views of the people of Scotland, 62% of whom voted to remain. We will debate what passes for the Government’s amendments on devolved issues later today, but the distinguished Scottish political commentator Gerry Hassan wrote in the newspaper earlier this week that:

“British politics as currently conducted cannot go on indefinitely, with the will of the people interpreted on the basis of just one June 2016 vote, but ignored in everything else…public opinion north of the border cannot be permanently ignored without profound consequences.”

Do not just take that from Mr Hassan, or indeed from the Opposition. The Conservative party’s spokesperson on constitutional affairs in Scotland, Professor Adam Tomkins, said at the weekend that

“the political price of enacting legislation without consent”—

from the Scottish Parliament—

“might be quite significant indeed.”

The wilful ignoring of the will of the Scottish people highlights a democratic deficit at the heart of the United Kingdom, which is why I and other Scottish National party Members would like to see an independent Scotland. The irony is that those who push so strongly for Brexit complain about a democratic deficit in the European Union, and many of them hold that view sincerely, but they seem not to care a jot for the democratic deficit in this Union, the United Kingdom.

Many of the amendments being considered today are about defending democracy, and it is right they should be debated and determined by this House, not by the undemocratic and unaccountable House of Lords. The House of Lords contains a significant number of able people—indeed, I look forward to hearing what they have to say about aspects of this Bill—but they are not accountable in the way that Members of this House are. We should be debating these issues, which is why it is so disgraceful that the Government have not tabled their substantive amendments on devolution. My hon. Friend the Member for North East Fife (Stephen Gethins) will speak about that in more detail later.

The SNP’s amendments, and indeed Labour’s amendment, on the charter are supported by the Equality and Human Rights Commission, and many hon. Members will have had the benefit of reading the EHRC’s briefing and the opinion it commissioned from distinguished senior counsel Jason Coppel on the Government’s right-by-right analysis, which was published back in December 2017. The analysis repeats the Government’s assurance that the rights provided by the charter will not be weakened following Brexit, which we already know is not the view of the Under-Secretary of State for Exiting the European Union, the hon. Member for Fareham; nor is it the view of Mr Coppel, who has produced a detailed opinion showing that the loss of the charter will result in a loss of rights in a number of ways.

As I and others said in Committee, there are gaps and, most importantly, this Bill will remove remedies that are currently available in UK law in cases of a breach of charter rights. As the right hon. and learned Member for Beaconsfield said, there is also the very real possibility that charter rights could be repealed or overridden in UK law by the use of secondary legislation.

[John Redwood]

If the Scottish referendum had gone the other way, would not the hon. and learned Lady have regarded the result as completely binding on the whole United Kingdom, even though large parts of England might have voted against her view?

[Joanna Cherry]

I will not be drawn into a discussion about that today. I can see why the right hon. Gentleman might want to take attention away from the matter at hand, but we are not here today to debate Scottish independence. That will come later, and I very much look forward to it.

We are here today to consider the Bill. Rather than shuffling off our responsibilities to another place, we should be looking at the provisions here. The “assurance” published by the Government is not worth the paper it is written on. One of their Ministers will tell us otherwise, but, perhaps more importantly, the independent legal opinion of a senior English silk commissioned by the EHRC tells us so, and his view is widely held.

I do not intend to press amendments 42 and 43 to a vote today, as I see them as probing amendments. Amendment 43 arises from matters raised in Committee, and amendment 42 arises from the terms of the agreement reached between EU and UK negotiators in December 2017. Amendment 42 would ensure that UK courts and tribunals can refer matters to the Court of Justice of the European Union, as was agreed between negotiators in December 2017 in relation to citizens’ rights.

--- Later in debate ---

[Mr Grieve]

I agree entirely with what the hon. and learned Lady is saying, but it is my understanding, and I hope the Minister will say it again—he said it in Committee—that this will be dealt with in the other place. I am sorry that it could not be dealt with here, because that would have been rather better, but if the Government need more time, I expect them to address this issue.

[Joanna Cherry]

That is what I have heard, too. What I would like to hear from the Government today—this is why I tabled this probing amendment—is some indication that they recognise the gravity of the issue. This is not a political football, and it is not about stopping Brexit; it is about addressing issues of legal certainty.

As a courtesy to this House, I would like to hear some indication of how the Government propose to address the issues of legal certainty, particularly so that Members of my party, which is not represented in the other place, can have some input and give our view. Of course Scotland has a separate legal system. Clause 6(2) will apply to the High Court of Justiciary, and we need to be reassured not just on behalf of judges in the UK Supreme Court but on behalf of judges in the Supreme Courts of Scotland. I very much hope amendments 42 and 43 will draw from the Solicitor General some colourable reassurance that the Government are taking these concerns seriously and that they have them in hand, as well as some indication of the route the Government intend to go down in the other place to address these concerns.

Finally, on the charter of fundamental rights, I will wait to see what the official Opposition do, as we each have an amendment down. Given the spirit in which we have worked together on other aspects of this Bill, I am sure we can come to an agreement on that. The Scottish National party will be happy to support new clause 7, which was tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas). Many of our constituents feel strongly about the issue it raises, as do those of other MPs, and we are grateful to her for persevering with it.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

The hon. Member for Nottingham East (Mr Leslie) began his speech by saying that it was going to be very short but he then generously gave way to dozens of interventions from Members from all around the House and spoke for half an hour. He was expressing views with which I largely agreed, but I will try not to follow his precedent. I was not trying to catch your eye at all, Mr Speaker; I was waiting for the Solicitor General to reply to these points, as I was waiting for Ministers to reply to them in Committee, when I made speeches on one or two of them. However, I decided to make a short speech to save myself and the House from the long interventions that I am prone to make and would otherwise make on the speech of my hon. and learned Friend the Solicitor General.

This speech concerns the three points that have dominated throughout, where I am in great sympathy with what many people have said. First, why are the Government singling out the charter of fundamental rights to be the only piece of EU legislation that they wish to repeal? Secondly, on retained EU rights, why are those people who have existing rights of action able to get only this strange concession that for three months they might be able to pursue those rights, otherwise retrospectively they will lose them if their solicitors do not act quickly enough or they do not realise in time that they might have an action? Thirdly, and finally, we have this strange question of how in future a sovereign Parliament will amend EU law if it wishes to do so and why we have this confusion about what is, in effect, primary legislation and will require an Act of Parliament to change it, and what is secondary legislation and will require regulations. I will not repeat the arguments on any of those points at any length, because I addressed some of them in Committee and they have been well put today. But I am astonished that we have got to Report without, as yet, having had an adequate response to any of them.

I was rather doubtful about the charter of fundamental rights when it came before the House originally. I was a supporter of the treaty of Lisbon and I voted against my own party, with the then Government, quite frequently throughout those proceedings, as I thought the treaty was highly desirable. I am glad to say that when we came to power we showed not the slightest sign of wishing to undo any of it. The charter of fundamental rights was the bit I was least keen on, thinking it on the whole unnecessary, as it largely duplicated the European convention on human rights, and thinking that it was not going to make any difference; I did not use The Beano quote, but I could not see that it mattered very much and I went along with it reluctantly. I was wrong, as the charter has led to some extensions of rights in important areas. I cannot see why we should wish to halt that process. We have not yet got the Government’s proposals as to what they are going to do to fill the gap on things such as equalities law, which will emerge if we just repeal this.

The point I wish to make in a short speech is about what kind of answer I want from my hon. and learned Friend. He is genuinely a personal friend of mine. He is an extremely eloquent and valuable member of the Government. Obviously, as all lawyers do from time to time, he follows a brief, but I am sure he makes a considerable contribution to that brief and gives very valuable advice to those who seek to instruct him to temper what they would otherwise wish to do. So this is not at all aimed at him personally. But the Government’s approach throughout these unsatisfactory proceedings so far has been not to debate the main issues; we get raised with us all kinds of technical, drafting or slightly irrelevant reasons why the proposals coming from the Front Benchers on all sides cannot be accepted. So far, as far as I am aware, the Government’s case on the charter of fundamental rights is, “Well, it would not make any difference to repeal it. It hasn’t added anything. This is just unnecessary. We have singled it out, uniquely among all other EU law, simply because our tidiness of mind makes us wish to remove something that is perfectly adequately reflected in other areas.” That is not good enough.

On all three points that I have set out, the Government today, on Report, have the last chance in this House to say why they are repealing the charter, what evil it has done, what danger they think we are being protected from by its repeal and so on. I have yet to hear an example from anybody of a case where the charter of fundamental rights has been invoked in a way that anybody in this House would wish to reverse. We have not been given an example of an area of law that we have been taken into despite the bitter opposition of either the Government or this House. The advances that have been made, in some cases invoking the charter, seem to me perfectly worth while, so I hope the Solicitor General’s speech will specify those areas where the Government see that damage has been to our approach to rights and to law, and what hazards they are going to prevent us from falling into by reversing the charter.

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[John Redwood]

I strongly agree with the hon. Member for Ilford South (Mike Gapes) that the United Kingdom could strengthen her links and ties with Anguilla and could be very supportive as we go through Brexit. I trust that those on the Government Front Bench have listened carefully to what he has been saying. As far as I know, they have good will towards Anguilla. He mentioned some positive ideas about how the UK can help more and develop that relationship, which I welcome and which I suspect the Government may welcome.

I will respond briefly to the remarks of the hon. and learned Member for Edinburgh South West (Joanna Cherry). In her remarks—we have heard this in the many SNP speeches during the debates on the Bill—she referred again to the way in which Scottish voters had a different view from UK voters as a whole on the referendum and she implied that that had great constitutional significance. I urge her to think again. I pointed out to her that, had Scotland voted to be independent in its referendum, I do not think it would have mattered at all if, in a subsequent election—I think that there would probably have been one quite quickly—a lot of people in England had voted the other way and said, “No, we’d like Scotland to stay in.”

[Joanna Cherry]

Will the right hon. Gentleman give way?

[John Redwood]

If the hon. and learned Lady lets me finish my point, I will let her intervene. I would have thought that the result of the Scottish referendum was binding and, although I deeply want to keep the Union together, I would have felt that it was my duty to see the wishes of the Scottish people fully implemented because those were the terms of the referendum. She seems to be implying that it should have been otherwise.

[Joanna Cherry]

The right hon. Gentleman has unfortunately forgotten that the Scottish referendum was preceded by the Edinburgh agreement between the British and Scottish Governments, which said that the outcome of the referendum would be respected by both sides. I think that he is rather trying to deflect attention from the issue at hand today by harking back to this.

[John Redwood]

I fear that it is very relevant, and probably even more relevant to what we are going on to debate in the next group of amendments—and the hon. and learned Lady did raise it as an important part of her case on how we handle EU law. I feel that SNP Members want to recreate the European Union in every way they can by amending this Bill, which is actually about us developing a new relationship—a very positive relationship—with the EU from outside the EU. That means changing some of the legal ties that currently bind us to the EU, while the many that we do not want to change come under our control so that future votes of the British people, and Parliaments, could make a difference if they so wished. That is the very important thing that we are debating. She has to accept that just as, had the Scottish people voted to leave, we would all have accepted the verdict and got on with it, against our wishes, now that the United Kingdom’s people have voted to leave the European Union, the whole Union has to accept that democratic judgment.

[Joanna Cherry]

Is the right hon. Gentleman really suggesting that the outcome of the 2014 referendum means that henceforth in this Union the views of the Scottish people can be blithely ignored on all occasions? Is that his view? I am sure that Scottish voters watching the television would love to know that that is what he saying.

[John Redwood]

Absolutely not. Scottish voters’ views matter very much. They have a privileged constitutional position, which we are all happy with, such that in many areas Scotland makes her own decisions through her own Parliament. However, when it comes to a Union matter, I thought we all agreed that where we had a Union-wide referendum, the Union made the decision and the Union’s Parliament needs to implement the wishes expressed in the referendum. That is why Members from every party in the House of Commons, apart from her party and a few Liberal Democrats, decided, against their own judgments in many cases, that we needed to get on with it, send the article 50 letter and give this Bill a good passage. We are bound by the wishes of the British people as expressed in the referendum.

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[The Solicitor General]

I certainly can. First, we are not repealing anything. Secondly, the dog that has not barked in this debate is the European convention on human rights, which is much supported by both sides of the House, very much part of our law and a fundamental part of the underpinning of many of the human rights—

[Joanna Cherry]

rose—

[The Solicitor General]

I know that the hon. and learned Lady treasures and rightly places great value on those human rights. I give way to her.

[Joanna Cherry]

Can the Solicitor General confirm once and for all that reports that the Prime Minister wants to run the next Tory party general election campaign on a pledge to repeal the Human Rights Act and withdraw from the convention are incorrect? [Interruption.] Conservative Members roll their eyes and make a noise. I am giving him the opportunity to confirm that that is incorrect.

[The Solicitor General]

May I just calm the hon. and learned Lady? [Interruption.] Well, she is making a point that is frankly not the case. We have committed to supporting our membership of the European convention throughout this Parliament, and that is a position I entirely support.

[Joanna Cherry]

What about the next Parliament?

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Corresponding powers involving devolved authorities

[Joanna Cherry]

I beg to move amendment 49, page 17, line 13, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

[Mr Speaker]

With this it will be convenient to discuss the following:

Amendment 50, page 17, line 18, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Government amendments 21 to 27.

Amendment 51, page 22, line 39, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 52, page 22, line 43, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Government amendment 28.

Amendment 53, page 25, line 12, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 54, page 25, line 16, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Government amendment 29.

Amendment 3, in clause 11, page 7, line 23, leave out subsections (1) to (3) and insert—

“(1) In section 29(2)(d) of the Scotland Act 1998 (no competence for Scottish Parliament to legislate incompatibly with EU law), omit “or with EU law”.

(2) In section 108A(2)(e) of the Government of Wales Act 2006 (no competence for National Assembly for Wales to legislate incompatibly with EU law), omit “or with EU law”.

(3) In section 6(2)(d) of the Northern Ireland Act (no competency for the Assembly to legislate incompatibly with EU law, omit “is incompatible with EU law”.

(4) The Secretary of State must lay before each House of Parliament proposals for replacing European frameworks with UK ones.

(5) UK-wide frameworks shall be proposed if and only if they are necessary to—

(a) enable the functioning of the UK internal market,

(b) ensure compliance with international obligations,

(c) ensure the UK can negotiate, enter into and implement new trade agreements and international treaties,

(d) enable the management of common resources,

(e) administer and provide access to justice in cases with a cross-border element, or

(f) safeguard the security of the UK.

(6) Ministers of the Crown shall create UK-wide frameworks only if they have consulted with, and secured the agreement of, the affected devolved administrations.”

This amendment removes the Bill’s proposed restrictions on the ability of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly to legislate on devolved matters and creates new collaborative procedures for the creation of UK-wide frameworks for retained EU law.

Amendment 6, page 7, line 23, leave out subsections (1) and (2) and insert—

“(1) In section 29(2)(d) of the Scotland Act 1998 (no competence for Scottish Parliament to legislate incompatibly with EU law), omit “or with EU law”.

(2) In section 108A(2)(e) of the Government of Wales Act 2006 (no competence for National Assembly for Wales to legislate incompatibly with EU law), omit “or with EU law”.”

This amendment would replace the Bill’s changes to the legislative competence of the Scottish Parliament and the National Assembly for Wales in consequence of EU withdrawal, by removing the restriction on legislative competence relating to EU law and ensuring that no further restriction relating to retained EU law is imposed.

Amendment 13, page 7, line 23, leave out subsections (1) to (3) and insert—

“(1) In section 29(2)(d) of the Scotland Act 1998 (no competence for Scottish Parliament to legislate incompatibly with EU law), omit “or with EU law”.

(2) In section 108A (2)(e) of the Government of Wales Act 2006 (no competence for National Assembly for Wales to legislate incompatibly with EU law), omit “or with EU law”.

(3) In section 6(2)(d) of the Northern Ireland Act (no competency for the Assembly to legislate incompatibly with EU law), omit “is incompatible with EU law”.

(3A) The Secretary of State must lay before each House of Parliament proposals for replacing European frameworks with UK ones.

(3B) UK-wide frameworks will be proposed if and only if they are necessary to—

(a) enable the functioning of the UK internal market, while acknowledging policy divergence;

(b) ensure compliance with international obligations;

(c) ensure the UK can negotiate, enter into and implement new trade agreements and international treaties;

(d) enable the management of common resources;

(e) administer and provide access to justice in cases with a cross-border element; or

(f) safeguard the security of the UK.

(3C) Frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures, and will therefore—

(a) be based on established conventions and practices, including that the competence of the devolved institutions will not be adjusted without their consent;

(b) maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory as is afforded by current EU rules; and

(c) lead to a significant increase in decision-making powers for the devolved administrations.

(3D) Frameworks will ensure recognition of the economic and social linkages between Northern Ireland and Ireland by—

(a) recognising that Northern Ireland will be the only part of the UK that shares a land frontier with the EU; and

(b) adhering to the Belfast Agreement.

(3E) UK-wide frameworks will be created jointly by the sitting devolved administrations and Ministers of the Crown, with the agreement of all parties involved.”

This amendment removes the Bill’s proposed restrictions on the ability of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly to legislate on devolved matters and creates a new collaborative procedure for the creation of UK-wide frameworks for retained EU law using the principles as agreed at the Joint Ministerial Committee (EU Negotiations) on 16 October 2017.

Amendment 44, in clause 7, page 5, line 7, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations under Clause 7 when it is necessary to do so.

Amendment 5, page 6, line 18, after “it”, insert—

“( ) modify the Scotland Act 1998 or the Government of Wales Act 2006,”.

This amendment would prevent the powers of a Minister of the Crown under Clause 7 of the Bill to fix problems in retained EU law from being exercised to amend the Scotland Act 1998 or the Government of Wales Act 2006.

Amendment 45, in clause 8, page 6, line 33, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 46, in clause 9, page 7, line 3, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 47, in clause 17, page 14, line 15, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 48, page 14, line 22, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 11, in clause 19, page 15, line 11, at beginning insert—

“(1) Subject to subsection (1A)”.

This amendment is consequential to Amendment 12 to Clause 19 that requires legislative consent from the sitting devolved administrations before any of the provisions in this Act come into force.

Amendment 12, page 15, line 18, at end insert—

“(1A) None of the provisions in this Act may come into force until the Prime Minister is satisfied that resolutions have been passed by the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly, signifying consent to the Act unless—

(a) direct rule is in place;

(b) the devolved administration has been formally suspended; or

(c) if the devolved administration has been dissolved for reasons other than recess or an election.”

This amendment requires the Prime Minister to gain legislative consent from the sitting devolved administrations before any of the provisions in this Act come into force.

Government amendments 14 to 20, 30 to 32 and 34.

[Joanna Cherry]

The amendments I have tabled go to the heart of concerns that many Members have about the wide powers afforded to the Executive by clause 9, schedule 2 and other parts of the Bill in relation to secondary legislation. The purpose of my amendments is to ensure that Ministers can only bring forward regulations under clause 7 and the like when it is “necessary” to do so, rather than when it is “appropriate”. The word “appropriate” is too wide.

These issues were discussed in Committee, but—surprise, surprise—it was very difficult to get a straight answer from Ministers about why they were so wedded to the word “appropriate” and were not interested in changing it to the word “necessary”, as supported by many organisations including Justice and the Law Society of Scotland. The change would also reflect judicial concerns about the breadth of discretion that the judiciary would be given if they had to determine whether something was “appropriate” rather than “necessary”. This will be subject to judicial review because we are talking about secondary legislation. I tried in vain in Committee to get the Minister to say what was meant by “appropriate”. He referred me to the dictionary definition, but that is simply not good enough.

[Mr Jim Cunningham (Coventry South) (Lab)]

It seems to me, and I am sure the hon. and learned Lady will agree, that as far as the Government are concerned, “appropriate” means, “We’ll tell you what we’re going to bring in front of you.”

[Joanna Cherry]

The hon. Gentleman is absolutely right. That is the gravamen of the concern. The Government are given too much discretion to decide what they consider is appropriate, rather than what is necessary for the purposes of the Bill.

I have no doubt that, later in the debate this afternoon, a Minister will rise to reassure me and others that the Government would never do anything inappropriate, but I think we know what we all think about that. And I am talking not just about this Government; all Governments, particularly when afforded too much Executive power, will seek to abuse it—that is in the nature of the Executive.

In Committee, I was rather struck by a sweeping statement by the right hon. Member for West Dorset (Sir Oliver Letwin), who said that, apparently, we all know what “appropriate” means and that the courts will know what it means. If that is so, why does the Minister not tell us what “appropriate” means in this context? Many distinguished lawyers have said that the courts will not know, and the judiciary themselves have expressed concern about the breadth of discretion given to the Government by the use of the word “appropriate” rather than the word “necessary”.

The matter has been raised by the Delegated Powers and Law Reform Committee, which recommended that the power in clause 7

“should only be available where Ministers can show that it is necessary to make a change to the statute book”.

I have no doubt that an amendment on that will be forthcoming in the House of Lords, but as I said earlier in the debate, it is important that this democratically elected and accountable House debate these matters and that we get some colour from the Government on their position.

The issues raised by the amendment have also been referred to by the Scottish Parliament’s Finance and Constitution Committee, which has produced an interim report on the Bill and supported the recommendation. I think that I am right in saying that the report was supported by a number of Conservative Members of the Scottish Parliament, so this is not really a party political issue. I do not want us to withdraw from the EU, but I recognise the need for this legislation if we are going to do so, and this amendment seeks to circumscribe Executive power.

[Sir Oliver Letwin]

I can see the hon. and learned Lady’s point that, in the light of the changes that the Government have made to clause 7, it may be appropriate to change “appropriate” to “necessary” in the schedule. However, will she confirm that her amendment 49 does that for devolved authorities’ Ministers, not for the Crown, and that that comes later in the sequence of amendments?

[Joanna Cherry]

Yes. What is sauce for the goose is sauce for the gander. It would not be very consistent if I thought that the British Executive should not get sweeping powers but the Scottish Executive should. All these arguments about curtailing Executive power apply to all Governments in these islands, not just to this Government. At the moment—my hon. Friend the Member for North East Fife (Stephen Gethins) will address these matters later—the Scottish Government are getting precious few powers in relation to these matters, and that is a grave concern. However, others will address that later.

The Solicitor General said he had listened with care to what was said about this issue in Committee, so what will Ministers do about it? Have they spoken to the judiciary about this? Have they taken on board the judiciary’s concerns about the scope of discretion granted to them and their fear of that, given recent politically motivated attacks on the judiciary? Have Ministers taken on board the concern expressed on both sides of this House and by many organisations outwith it about the broad scope of the powers currently afforded?

As I said, I have no doubt that these concerns will be raised in the Lords, but now is the time for the Government to tell this democratically elected and accountable House what they are going to do to circumscribe the exercise of Executive power in this Bill.

[Mr Jenkin]

I will speak only briefly to somewhat lament the fact that we have not made more progress on this clause 11 issue. Let me explain the background. The Public Administration and Constitutional Affairs Committee has taken an interest in this matter. We have taken an extensive interest in the inter-institutional relations between the different Parliaments of the United Kingdom and the different Administrations of the United Kingdom, which is a very undeveloped part of our constitution. We have the legal framework, but we do not have the practices, the culture or the institutional underpinning. The debate about the legislative consent motions in relation to this legislation has shown that up to a degree.

I pay tribute to my right hon. Friend the Member for Ashford (Damian Green), recently departed from the Government, who played a crucial role in making considerable advances on the question of how the legislative consent motions in support of this proposed Act of Parliament should be supported by the devolved Parliaments. It seems to me that the process has stalled somewhat, and it is unfortunate that we do not have the Government or others tabling amendments at this stage of the scrutiny of the Bill, when some of us had hoped that that would be the case. I am bound to say that it may reflect the fact that there is not yet a consensus, and it would be more important to reach a consensus on this matter than to table some amendments that do not reflect a consensus.

--- Later in debate ---

[Stephen Kerr]

rose—

[Joanna Cherry]

He doesn’t know.

[Stephen Kerr]

The hon. and learned Lady, with her normal reserve, says that I do not know. The fact is that there are established processes by which the amendments that will now have to be made to the Bill in the House of Lords will come back here. Those processes were addressed by the Chair of the Public Administration and Constitutional Affairs Committee.

I do not want my next point to be lost, especially on my hon. Friends on the Government Front Bench—please do not underestimate the depth of disappointment and frustration among Scottish Conservative colleagues in the House. It does not seem appropriate for the Government to blame outside influences for the lack of an amendment. [Interruption.] SNP Members say, “Yes.” But it took until October to get an agreement to the principles by which we would proceed towards the agreement that I, and many of us here, regard as essential. Why did it take so long? Well, the fact is that the nationalist Government in Edinburgh are approaching the matter, as usual, with a wrecking mentality. They want to create a constitutional crisis that precipitates their beloved second independence referendum. The First Minister was at it again this week, talking about another independence referendum. The people of Scotland have spoken on this matter, but the SNP will not listen and its Members claim to be the democrats in this House.