European Union (Withdrawal) Bill

Debate between Joanna Cherry and Oliver Letwin

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

[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.

European Union (Withdrawal) Bill

Debate between Joanna Cherry and Oliver Letwin

Thursday 7th September 2017 Commons Chamber

[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.