European Union (Withdrawal) Bill

Joanna Cherry Excerpts

Thursday 7th September 2017 Commons Chamber

[Mr Davis]

I am afraid that my old and dear right hon. and learned Friend and I are going to have a difference of opinion. We will put in the Library a letter on this specific issue, as we have already said. [Hon. Members: “When?”] Today. But the simple truth is that these rights, as he should know as well as anybody, have a whole series of origins. Some are from British common law, some are from EU law that we will bring in ourselves, and some are from the European convention on human rights—which, he will note, we are continuing with. All these things will provide those undertakings. Why on earth we need an extra layer of declaratory law I do not know. It was brought in under the Blair Government—perhaps that explains it.

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

Will the Secretary of State give way?

[Mr Davis]

Not for a moment. I will make some progress and come back to the hon. and learned Lady.

The conversion of EU law into UK law is an essential measure to ensure that the UK leaves the EU in the smoothest way possible. However, that action alone is not enough to ensure that the statute book continues to function. Many laws will no longer make sense outside the EU. If we were only to convert EU law into UK law, our statute book would still be broken. Many laws would oblige UK individuals, firms or public authorities to continue to engage with the European Union in a way that would be both absurd and impossible for a country that is not within the European Union. Other laws would leave the European Union institutions as key public authorities in the UK—a role they would not be able to perform or fulfil.

The problems that would arise without our making these changes would range from minor inconveniences to the disruption of vital services we all rely on every day. In practical terms, they would range from a public authority being required to submit reports on water quality to the European Union, to disruption being caused to the City by the removal of the supervision of the credit rating agencies entirely. It is essential that these issues are addressed before we leave the European Union, or we will be in breach of our duty as legislators to provide a functioning and clear set of laws for our citizens.

That is why the Bill provides a power to correct problems that arise in retained EU law as a result of our withdrawal from the European Union. This is clause 7, the so-called correcting power. Unlike section 2(2) of the European Communities Act—this goes straight to the point that the right hon. Member for Normanton, Pontefract and Castleford raised—which can be used to do almost anything to the statute book to implement EU law, the correcting power is a limited power. It can be used only to correct problems with the statute book arising directly from our withdrawal from the European Union. Ministers cannot use it simply to replace European Union laws that they do not like. It is designed to allow us to replicate as closely as possible existing European Union laws and regimes in a domestic context. It is also restricted. It cannot be used, for example, to create serious criminal offences, amend the Human Rights Act, or impose or increase taxation. We have ensured that it will expire two years after exit day so that nobody can suggest that it is a permanent attempt to transfer power to the Executive.

[Mr Davis]

No.

I accept that proposing a delegated power of this breadth is unusual, but leaving the European Union presents us with a unique set of challenges that need a pragmatic solution. Using secondary legislation to tackle such challenges is not unusual. Secondary legislation is a process of long standing with clear and established roles for Parliament.

[Joanna Cherry]

Following on from the point made by the right hon. and learned Member for Beaconsfield (Mr Grieve), the Secretary of State has asked for concrete examples of rights that will be lost to UK citizens as a result of the Act, so I would like to give him one and ask for his undertaking that he will amend the Act to make sure that this right will not be lost.

Earlier this summer, a man called John Walker relied on EU equality law to bring his successful challenge to a loophole in UK law whereby employers could refuse to pay same-sex partners the same pension benefits as those paid to heterosexual couples if the funds were paid in before December 2005. The Supreme Court—our Supreme Court, not the European Court of Justice—agreed that there was a loophole in UK law that was a violation of the general principles of non-discrimination in EU law. Mr Walker was able to use his right of action under the general principles of EU law to close that loophole, so that he and his husband could enjoy the same rights as a heterosexual couple. That would not be possible under this Bill, because, as the right hon. and learned Gentleman said—

[Mr Speaker]

Order. This is a very lawyerly intervention, which is not altogether surprising in view of its genesis, but I am looking for the question mark.

[Joanna Cherry]

I am coming to the question, Mr Speaker, but the Secretary of State asked for examples. A challenge such as the one I have described would not be possible under this Bill, because there will be no right to sue. Will the Secretary of State give an undertaking that he will close this loophole in the Bill if we bring forward an appropriate amendment?

[Mr Davis]

I think that that will be brought forward in the course of the Bill’s translation, but if not—[Interruption.] No, I am standing exactly by my undertaking. If not, the hon. and learned Lady should come to me and we will find a way of correcting that problem.

--- Later in debate ---

[Keir Starmer]

This is the conundrum that the Secretary of State and the Bill have created. If exit day is in March 2019, it is difficult to see how we could transition on terms similar to those we are now on. What could we do? We could choose to push exit day two years down the line. [Interruption.] No? Well, if we did not do that, but we recognised that the ECJ was necessary to the process, we would end up repealing what was once this repeal Bill, only to have to bring it back in again. That is the extent of the absurdity of the powers in the Bill.

[Joanna Cherry]

The right hon. and learned Gentleman is making an outstandingly concise and forensic speech dissecting the difficulties in the Bill. He has drawn our attention to the problem with the definition of “exit day”. Does not that problem also feed into the delegated legislative powers? Clause 7(7) states that Ministers cannot make regulations

“after the end of the period of two years beginning with exit day.”

If exit day is going to disappear down the line, as the shadow Secretary of State has suggested, would not the power to make delegated legislation continue for even longer than the Government are now proposing?

[Keir Starmer]

It certainly could. The only way out of that would be to have multiple exit days. Members might think I am joking, but someone who drafted the Bill has thought of that, and it is conceivable that there could be multiple exit days, all chosen by a Minister and not by Parliament.

The combined effect of the Bill’s provisions would be to reduce MPs to spectators as power pours into the hands of Ministers and the Executive. This is an unprecedented power-grab—“rule by decree” is not a mis-description—and an affront to Parliament and to accountability. The name of the Bill was changed from the great repeal Bill to the European Union (Withdrawal) Bill. The word “great” should have been preserved, however. The title should have been changed to the great power grab Bill. Labour voted for the article 50 legislation, because we accept the referendum result. As a result, the UK is leaving the EU. That we are leaving is settled. How we leave is not. This Bill invites us to surrender all power and influence over that question to the Government and to Ministers. That would betray everything that we are sent here to do. Unless the Government make very significant concessions before we vote on Monday, Labour has tabled a reasoned amendment and will vote against the Bill.

--- Later in debate ---

[Mr Duncan Smith]

I am not asking for two wrongs to make a right; I support the principle of the Bill and the need for it, but I recognise that in Committee there will be need to review how some of those checks and balances are introduced, and I hope that is done properly and powerfully. What my right hon. Friend the Member for Haltemprice and Howden said at the Dispatch Box gave indication to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) that there is scope to look at that. So the argument is not about the powers in the Bill; the debate is about how we reassure ourselves as a parliamentary democracy that the checks and balances exist such that, given the very profound nature of what is happening, we can achieve a balance and not delay the necessary changes.

The Opposition are in a peculiar position, but the Scottish nationalists are in a ridiculous position. For years and years they have sat by, content to see all the powers exercised in Brussels exercised there without their having any say. The moment we talk about leaving the European Union and bringing those powers back to the UK, they are up in arms because they feel betrayed that they do not exercise those powers. Where were they over the last 40 years when those powers were given away?

[Joanna Cherry]

Will the right hon. Gentleman give way?

[Mr Duncan Smith]

I am not going to give way; I do not want the hon. and learned Lady to embarrass herself any more with the ridiculous argument that her party colleagues make. The truth is that they will leap on any excuse. My response to them is that those powers are not being stolen away; they are being reassured that what the Government then devolve back down to them will be more than they have ever had before. That reassurance has been granted and given.

The Constitution Committee paper is rather good. It makes another important point, which relates to the three closing recommendations I wish to make. I hope the Government will look at three areas. The first is the application of statutory instruments. The Government have accepted that we should have an explanatory memorandum that tells us what was in place before and what will happen afterwards, but they should also accept the recommendation that the Government should provide an explanation as to why an instrument is necessary. It is important that people can recognise quickly what the Government intend. I hope the Government will think about that.

When I was at the Department for Work and Pensions, a statutory body called the Social Security Advisory Committee had the role of looking at legislation as it was about to be introduced. Sometimes that is awkward when one is the Secretary of State, but none the less it makes recommendations. Will my right hon. Friend the Secretary of State look again at such a process? It may offer the Government a way to reassure people that the things they are about to do may well be absolutely necessary.

Here is the deal. We are asking that whatever is done under the purposes and powers of the Bill is done for one simple reason: to transpose existing law with existing effect, so that that effect does not change. If the single exam question is asked of a body like the Social Security Advisory Committee, “Is this instrument doing that?”, that might help to reassure Parliament. I urge the Government to consider that because it works in one area of detailed and consequential legislation, so I wonder if it might work in this area, too.

I am not going to go into a lot of detail, but my final recommendation is on the point made by the right hon. and learned Member for Holborn and St Pancras about the exit day. I am one of those who think we ought really to have that in the Bill, because he is right that on it hinges just about everything. For example, the Government have moved a long way on the sunset clauses, for which I thank them, because it is important to put an end date on the powers that exist in the Bill. The question is about the two years, but the real question is: when does the two years start and thus when does it end? That would answer a lot of the questions that the right hon. and learned Gentleman raised about how far the Government might go in changing future legislation and everything else. As a strong supporter of the Bill, a strong supporter of the Government and a strong supporter of the principle, and as a big supporter of the idea of leaving the European Union, I urge the Government to think very carefully about what they do about that date.

In conclusion, I simply say that I absolutely support the Government on the principle of the Bill, as well as on the vast majority of the practicality and how it will be implemented, but I recognise that, in Committee, the Government will look again carefully at some of the need to provide some checks and balances as assurances to the House. We all want that, because none of us wants to defy the will of the British people, which is to leave smoothly, in a manner that does not bother business or upset individuals over their rights and their accepted ways of working.

I urge the Government to listen, but I congratulate them on getting to this point and getting us out of the European Union.

--- Later in debate ---

[John Redwood]

I think that those excellent principles are already reflected in both European law and British law and will therefore be built into our statutes. They will be inherited from European law through this Bill, and they will often inform the judgment of our judges. I am very happy to trust our Supreme Court rather than the European Court of Justice.

The Supreme Court has not always made judgments I like. I did not like one of its judgments quite recently, but we accepted it and lived with it. We are now in a stronger position as a result, as it happens, because we had a nine-month referendum debate in this House after the country had made its decision. I am pleased to say that after a very long and extensive rerun of the referendum—day after day we were talking about the same subject, having been told we never did so—Parliament wisely came to the decision, by an overwhelming majority, that it did have to endorse the decision of the British people and get on with implementing it.

[Joanna Cherry]

Will the right hon. Gentleman give way?

[John Redwood]

I am afraid that time is now rather limited.

I am very much in favour of our Parliament making these decisions. The admirable principles we are discussing will often be reflected in British law. They are already reflected in many of the bits of legislation that are the subject of this Bill, and our judges will often be informed by them. If the judges start to use a principle that we do not like very much, it is in the hands of those of us who are in Parliament to issue new guidance to those judges— to say that we are creating more primary legislation to ensure that we have a bit more of this principle and a bit less of that—on our area of disagreement with them. In a democracy, it is most important that we have independent courts, but also that, ultimately, the sovereign people through their elected representatives can move the judges on by proper instruction; in our case, that takes the form of primary legislation.

Much has been made of how we implement whatever agreement we get, if we have an agreement, at the end of the now 19-month process in the run-up to our exit on 29 March. I think people are making heavy weather of this, because the main issue that will eventually be settled—I fear it will be settled much later than the press and Parliament would like—is how we will trade with our former partners on the date on which we depart.

There are two off-the-shelf models, either of which would work. In one, the EU decides, in the end, that it does not want tariffs on all its food products and cars coming into the UK market, and it does not want us creating new barriers against its very successful exports, so it agrees that we should register our existing arrangements as a free trade agreement at the World Trade Organisation. That would be a ready-made free trade agreement.

I do not think that there is time to make a special free trade agreement that is not as good as the one we have at the moment. Either we will have the current arrangements, as modified for WTO purposes, when we are outside the Union, or we will not. If we do not, we will trade on WTO terms when we are on the other side of the EU’s customs and tariff arrangements. We know exactly what that looks like, because that is how we trade with the rest of the world at the moment as an EU member.

The EU imposes very high tariff barriers on what would otherwise be cheaper food from the rest of the world, but if it decided on that option, its food would, of course, be on the wrong side of that barrier as well. We would have to decide how much we wanted to negotiate tariffs down for food from other countries around the world, which may offer us a better deal. It would be quite manageable; food is the only sector that would be badly affected by the tariff proposals under the WTO. More than half our trade would not be tariffable under WTO rules, and services obviously attract no tariffs. I have yet to hear any of the other member states recommend imposing tariffs on their trade with us, or recommend a series of new barriers to get in the way of other aspects of our trade. We will have to wait and see how that develops.

--- Later in debate ---

[Sir Oliver Letwin (West Dorset) (Con)]

This has been a fascinating debate so far, and I am delighted that a little bird tells me that the Chief Whip and the Leader of the House are conspiring to try to make arrangements for it to be extended to midnight on the second day.

One of the most fascinating aspects of the debate has been the appearance of logic in what was said by not only the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), but the Chair of the Select Committee, the right hon. Member for Leeds Central (Hilary Benn), and the shadow Secretary of State, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer). What they said sounded forensic and logical. The structure of their argument, as I think other Members will recognise, is as follows: “We do not like clause 9, we do not like clause 17 and we do not like schedule 7, and therefore, instead of waiting to see whether they will change in Committee before voting on Third Reading, we will reject the Bill on Second Reading.”

That is not what logicians call logic; it is what they call a non sequitur, which prompts the question, “Why the non sequitur?” The answer is that the three people whom I have just mentioned are among the cleverest people in Parliament. They understand logic perfectly well, and they understand what a non sequitur is. The reason they are engaging in such an argument is that they hope to make some combination of trouble for the Government, or for the Brexit process. Conservative Members should pay not the slightest attention to such “un-arguments” and should get on with the business of examining the Bill as it is.

Having said that, I rather agree—in fact, I strongly agree—with what was said by my right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith), and, indeed, with some of what was said by the former Chancellor of the Exchequer, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), and my right hon. Friend the Member for Broxtowe (Anna Soubry). There is a lacuna here, and we do need to look at those clauses again. I suspect that much of the remedy will lie in the use of a combination of the Joint Committee on Statutory Instruments as the ultimate body and, for instance, the Social Security Advisory Committee to do the detailed work on what will probably be near on 1,000 technical statutory instruments before the House comes to consider the really serious matters that will need to be dealt with in one way or another.

There is, however, one point that I want to make in advance of the Committee stage in the hope that the Government will consider it between now and then. One fundamental issue has not been addressed in the debate so far. It relates to what we used to call the European Court of Justice or the Court of Justice of the European Union. Members who have read clause 6 will have noticed that, as the Secretary of State pointed out, subsection (4) states that

“the Supreme Court is not bound by any retained EU case law”.

That seems to be a fairly important statement, but it is not quite as important as one might think, because the Supreme Court is not bound by itself either: it is the kind of court that can always depart. So I think that it is more of a ritual utterance than anything else.

According to clause 6(3),

“Any question as to the validity, meaning or effect of any retained EU law is to be decided…in accordance with any retained case law and any retained general principles of EU law”.

In case anyone has any doubt about whether that might be just a drafting error, I should point out that the Government’s own document describing the Bill states:

“Questions on the meaning of retained EU law will be determined by domestic courts in accordance with pre­exit CJEU case law.”

In other words, those parts of the Bill, as currently drafted, enshrine the CJEU, with its expansionist teleological jurisprudence, as the basis for deciding what the law of the land is.

[Joanna Cherry]

Will the right hon. Gentleman give way?

[Sir Oliver Letwin]

I am sorry, but I will not. I do not have much time. I do not believe that that is a very good way to do it, but if it were a good way to do it, we should certainly remove the reference to the Supreme Court not being bound by it, because it is not one solo parliamentarian who has no legal expertise, but is, rather, the retiring president of the Supreme Court, whom we do have to pay some attention to, who has pointed out that there is an ambiguity here.