European Union (Withdrawal) Bill

Debate between Joanna Cherry and Iain Duncan Smith

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

[Joanna Cherry]

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

[Mr Duncan Smith]

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

[Joanna Cherry]

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

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

[Joanna Cherry]

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

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

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

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

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

[Mr Duncan Smith]

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

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

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

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

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

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

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

European Union (Withdrawal) Bill

Debate between Joanna Cherry and Iain Duncan Smith

Thursday 7th September 2017 Commons Chamber

[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.