EU Withdrawal Agreement: Legislation

Keir Starmer Excerpts

Tuesday 24th July 2018 Commons Chamber

[Keir Starmer (Holborn and St Pancras) (Lab)]

I thank the Secretary of State for providing advance copies of his statement and the White Paper. I am glad to say that that was two hours ago, and it is much appreciated.

We will of course scrutinise the White Paper closely, but a quick reading reveals a number of important points. First, the gimmick of fixing exit day as 29 March 2019 in the European Union (Withdrawal) Act has already come unstuck. We warned at the time that it would not work and would need to be rubbed out and that large parts of the European Union (Withdrawal) Act would need to be amended. Here is the proof.

Paragraph 56 of the White Paper states that

“EU law will continue to have effect in the UK in the same way as now”

for the implementation period—that is, until December 2020—but section 1 of the European Union (Withdrawal) Act, which took 18 months to get through Parliament and received Royal Assent only 28 days ago, repeals the European Communities Act on exit day, 29 March 2019. The implementation Bill will amend section 1 of the withdrawal Act by saving the ECA, as the White Paper makes clear in paragraph 60. So the ECA is repealed, and before that comes into force, it is amended and saved. The Secretary of State says that just “parts of the ECA” are saved until 30 December 2020, but that is a huge understatement. Almost all of it is saved, with amendments not to the applicability of EU law, but to collateral issues.

However, not just section 1 of the withdrawal Act now needs major surgery. The other big ticket item in the Act was the much-vaunted “conversion of EU law” into our law—again, fixed by the gimmick of the date of 29 March 2019. We warned that that would not work, because the gimmick gets in the way, so it is going to be rubbed out. Paragraph 69 of the White Paper makes it clear that the conversion exercise is now not needed until December 2020.

Then, of course, there is the European Court. Just a few weeks ago, many Brexiteers cheered section 6(1) of the withdrawal Act, which would extinguish the role of the European Court on the fixed date of 29 March 2019. But not so fast: as we said at the time would happen, paragraph 80 of the White Paper preserves the full role of the European Court until December 2020. Again, the withdrawal Act will need major surgery.

I cannot remember legislation that has needed such great revision and amendment before the relevant parts have even come into force. Of course, the provisions of the withdrawal Act that have come into force relate to delegated powers. During the 18-month passage of the European Union (Withdrawal) Bill through the House of Commons, it was acknowledged that it contained sweeping provisions packed with Henry VIII powers. They were supposed to be strictly limited by a two-year sunset clause. The White Paper now proposes that those clauses should be extended: sunset is now December 2022. On the face of it, paragraph 75 of the White Paper suggests that if there is no deal, the huge exercise of amending what will be hundreds of legislative provisions will be carried out through delegated legislation. I hope that that is not true, and I look to the Secretary of State for reassurance that that is not the implication of paragraph 75.

Then there is the elephant in the room: if there is no deal, there is nothing to implement. Can the Secretary of State tell us what is the legislative plan, to be in place by March next year, if there is no agreement on citizens’ rights—the Secretary of State said a lot about them—on the financial settlement, on Northern Ireland and on many other issues? If there are not to be sweeping delegated powers, what legislation will there be, and when, between now and March 2019?

There was no mention of Northern Ireland in the Secretary of State’s statement, and there is just a brief reference to it in the White Paper. I appreciate that elements of the Northern Ireland agreement are still being discussed, but with nothing substantive on Northern Ireland, the White Paper contains a huge gaping hole.

There are proposals on the financial settlement. The Secretary of State now seems to be saying that the EU will have to fulfil its side of the bargain, or we will not pay up. We have been down this track before. The Chancellor has previously dismissed that approach by saying:

“That is not a credible scenario. That is not the kind of country we are. Frankly, it would not make us a credible partner for future international agreements.”

So which is it: has it been agreed, or are we back to conditionality?

I have heard what the Secretary of State says about the withdrawal agreement being reached by October this year, but he knows that he is in a minority here and in Brussels. If agreement is not reached until November or December, how will the Secretary of State ensure that there is proper scrutiny of the implementation Bill, and will he guarantee that it will not be packed with wide-ranging Henry VIII powers?

We have a White Paper and we have time to scrutinise it, but we also have serious questions that now fall to be answered.

[Dominic Raab]

I thank the right hon. and learned Gentleman for his welcome for the White Paper in general. He will appreciate that the decision to publish it now was a finely balanced one because the negotiations are ongoing, but ultimately it was deemed more important and more respectful to this House to provide the information and consult as early as possible.

On the right hon. and learned Gentleman’s point about the date of departure, I presume he welcomes and supports the implementation period. I have not heard any substantive suggestion how he might have done it differently; perhaps as he reflects he will have some, but otherwise calling the implementation period a gimmick when businesses have called for it and welcomed the certainty it provides is, I think, rather an indication that the Labour party is reverting to type.

The right hon. and learned Gentleman had nothing to say on citizens’ rights, nothing to say on welcoming the mechanism to secure the rights of EU nationals here and nothing to say on welcoming the mechanism to make sure UK nationals have their rights abroad protected. In relation to no deal, we will be prepared regardless of the outcome, as he knows. This is not the legislation being provided to that effect, as we are focused on getting the right deal for the UK and the EU.

In relation to Northern Ireland, the right hon. and learned Gentleman will have seen the White Paper on our future relationship with the EU and the arrangements for frictionless trade, which are not just important for businesses but will avoid any return to a hard border. Our position is that that provides a clear, workable model that maintains our commitments under the Belfast agreement and avoids any friction at the border, but also frees us up to strike free trade deals abroad.

On conditionality, the right hon. and learned Gentleman is a learned lawyer, but I have to say to him that as a matter of basic general international law, whether through the interpretation of treaties under the Vienna convention or customary international law, when countries sign up to a treaty, both sides must commit to the obligations on both sides; there is reciprocity. Of course, if one side fails to live up to its commitments, it is open to the other side to take proportionate measures, including in relation to financial means, to make sure good effect is given to the whole deal. That is what it takes to stand up for the interests of the United Kingdom; if the right hon. and learned Gentleman would roll over, it is a good job Labour is not handling the negotiations with the EU.

This White Paper is about delivering a smooth and orderly Brexit and one that respects the referendum. I gently say to the Opposition that it is not entirely clear that it is Labour’s overriding objective to give effect to the referendum. Straight after the referendum, the leader of the Labour party demanded the immediate triggering of article 50; with a similar lack of strategic foresight, Labour Members repeatedly voted against the EU withdrawal Bill, whose sole purpose was to deliver a smooth and orderly Brexit, including on Second Reading; and now the Labour party will not rule out a second referendum. It is clear that Labour Members are taking the opportunistic political low-ground, rather than rallying together to try to secure the best deal for the UK with our EU partners. The withdrawal agreement Bill is essential, and I hope that all who wish to see a smooth and orderly Brexit will support it and engage seriously on the substance.