European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

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

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

This Bill is, fundamentally, not a decision-making Bill; it is an enabling Bill—it is an administrative measure. I spent many years on the Opposition Benches—on the Front Bench and on the Back Benches—practising the professional outrage we saw practised very effectively in the Chamber last Thursday and, if I may so, just now by the hon. Member for Penistone and Stocksbridge (Angela Smith). Of course, there are scintillas of truth in the points being made, but we should remember that the big decisions have been made—on 23 June last year and in the article 50 Act. We are leaving the European Union, and a vote against the Bill, as my right hon. Friend the Member for Basingstoke (Mrs Miller) pointed out, is just a vote for chaos and a chaotic Brexit, rather than a smooth transition.

Much of the debate is actually not about sovereignty, but about scrutiny and the proper role of Parliament, as the hon. Member for Penistone and Stocksbridge just said. There is huge complexity to deal with, and a quantity of legislative changes need to be made, but we need to keep this in proportion. If the official Opposition are really serious about having a sensible discussion about how to improve the scrutiny of secondary legislation, and particularly of the so-called Henry VIII provisions, let us have that conversation, and I would be delighted to talk about how we do those things. However, the Hansard Society proposals are far more about the procedures we adopt in this House and in the other place than about making fundamental changes to the Bill, albeit that some changes may be necessary.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

My hon. Friend and I rarely agree totally on European matters, but I actually agree with him that we need a practical Bill, not a policy Bill, that enables us to have a smooth transition. Would he therefore not agree that the whole issue under debate could be solved if the Government agreed to amend the Bill so that they gave themselves only the powers the Secretary of State explained to us yesterday that he requires, and so that it achieves only the ambitions that his letter to all MPs set out? Surely no one would miss the rather sweeping powers in clauses 7, 9 and so on if they were removed, because the Government express no intention of using them in the way everybody fears.

[Mr Jenkin]

My right hon. and learned Friend sets out the common ground we should all be on. However, the debate was not assisted by Tony Blair, who was on the television yesterday speaking about how to deal with this issue. He said:

“Paradoxically, we have to respect the referendum vote to change it.”

There is an understandable suspicion among Conservative Members that some people have not really accepted that we are leaving the European Union. The fact that the official Opposition have chosen to vote against the whole Bill underlines that they are rather reluctant to accept the decision the British people have made.

Before I move on, I should re-emphasise that the Hansard Society proposals have a lot to them, and we should be able to discuss them. I hope that, behind the scenes, colleagues will talk across parties on these matters, as one or two of us have already suggested we should.

However, let me put this in the much wider context, because we are getting rather lost in the detail of the Bill. We are forgetting what the Bill is for and the context it is being discussed in: we are leaving on 28 March—or whichever date it actually is—next year. It might be helpful to have the exit date on the face of the Bill at the outset, to provide additional clarity that negotiations are in progress, or should be.

I think everyone is getting a bit disappointed that there has not been more substantive discussion about the issues that really matter. The European Union’s position is beginning to look more and more unreasonable as it refuses to discuss the end state of the relationship that we all want to see, insisting on an up-front payment, or promise of payment, before it will discuss those matters. I have absolutely no doubt that the EU is playing for time for some reason, possibly because of the German elections, and is likely to crumble on that, and to start to talk seriously about the issues that we need to discuss.

We can talk too much and too glibly about cliff edges; I notice that even the Government have put the term “cliff edge” into their documents. Let us face it—the United Kingdom does not want a cliff edge. We are offering the rest of the European Union seamless trade, as far as possible, no tariff barriers and mutual recognition for products and services.

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[Mr Pat McFadden (Wolverhampton South East) (Lab)]

The Bill attempts to incorporate into domestic legislation the body of European Union law that has built up in the 44 years since we joined the EU. The stated purpose is to provide the country with continuity and certainty on what our statute book will contain on the day when we leave. Yet the purpose of leaving the EU is to depart from the laws incorporated by the Bill, otherwise there would be no point. So the legal certainty that the Bill aims for can last no longer than day one itself.

Leading leave campaigners have attempted to assuage such fears by pretending that they want to change nothing—not labour laws, not environmental protections, and not consumer protections. Those who have been the most vociferous opponents of any regulation that has stemmed from the EU, including members of the Cabinet who have attacked its laws and protections, such as those for people at work, now profess to agree to all the regulation that they previously detested. As we have come to expect in the pattern since the referendum, any attempt to ask questions about the Bill has been met with the usual accusations of betraying the public and denying the referendum result. Our democracy deserves better than that. If the proposals cannot stand scrutiny and questioning, the proposals are at fault, not those doing the questioning and trying to apply scrutiny.

Let us look at the content of the Bill. Most attention has been focused on the delegated powers provisions set out in clauses 7, 8, 9 and 17, and on the scrutiny provisions set out in schedule 7. In simple terms, those are the powers to amend the law without the usual legislative process of full debate. For example, clause 7 states that a Minister

“may by regulations make such provision as the Minister considers appropriate”,

and clause 9 states:

“Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act).”

Up until last week, the cornerstone of the Government’s defence of those proposed powers was the claim they were supported by the House of Lords Constitution Committee. Indeed, last Wednesday, the day before this debate began, the Prime Minister told the House that the Government’s approach

“has been endorsed by the House of Lords Constitution Committee.”—[Official Report, 6 September 2017; Vol. 628, c. 148.]

Let us look at what the Committee actually said in last week’s report. It stated:

“The executive powers conferred by the Bill are unprecedented and extraordinary and raise fundamental constitutional questions about the separation of powers between Parliament and Government.”

It continued by saying that

“the Bill weaves a tapestry of delegated powers that are breath-taking in terms of both their scope and potency”

and that the

“number, range and overlapping nature of the broad delegated powers would create what is, in effect, an unprecedented and extraordinary portmanteau of effectively unlimited powers upon which the Government could draw. They would fundamentally challenge the constitutional balance of powers between Parliament and Government and would represent a significant—and unacceptable—transfer of legal competence.”

If that is the Government’s case for the defence, I would not like to see the case for the prosecution.

[Mr Kenneth Clarke]

Does the right hon. Gentleman agree that there have been a lot of arguments in the past about Henry VIII powers and about the Executive taking power away from Parliament, and that it has all steadily gone in one direction? The danger now is not only the consequences of this Bill and of the details of Brexit, but that if the House does not challenge this Bill and change it, it will be quoted as a precedent for years to come. I have no doubt that if the Labour party ever gets back into power, a future Labour Government will start lecturing a Conservative Opposition that there are clear precedents for taking powers of this kind.

[Mr McFadden]

The right hon. and learned Gentleman is, of course, correct that we have had some of these debates before.

The criticism does not stop with the House of Lords Committee. The Hansard Society says that

“the Bill will strengthen the…executive, not Parliament”.

Its report on the Bill says:

“the broad scope of its…powers, the inadequate constraints…on them, and shortcomings in the proposed parliamentary control…will be…a toxic mix”.

We have had regulatory Bills before, and many years ago, when I was first elected, I was involved in taking the Legislative and Regulatory Reform Act 2006 through the House. There was huge controversy about the powers contained in that legislation, and many Conservative Members who most vociferously defend the European Union (Withdrawal) Bill attacked that Act as a huge power grab.

The response to the 2006 Act led to the setting up of a special scrutiny process for deregulatory measures, and the Hansard Society says:

“Previous legislation, such as the Legislative and Regulatory Reform Act 2006, provides examples of ways in which”

the Government

“could introduce safeguards into the EU (Withdrawal) Bill to tighten the scope and application of the powers.”

But there are no special scrutiny measures proposed in the Bill, even though its scope is far, far broader than the 2006 Act.

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[The Lord Chancellor and Secretary of State for Justice (Mr David Lidington)]

By my count, no fewer than 107 Members have spoken during the two days of this Second Reading debate. I hope that the House will forgive me when I say that, in the time left to me, I shall not be able to respond fully and in detail to each one of those contributions. However, I do want to express my appreciation to all Members who have taken part; and, like the hon. Member for Greenwich and Woolwich (Matthew Pennycook), I want to single out the hon. Member for Canterbury (Rosie Duffield), who made a fine maiden speech. Those of us who were in the Chamber to listen, or who read her speech in Hansard, will recall the obvious passion and affection with which she spoke about the different communities that make up her constituency. Let me add that I—and my parliamentary friends—also appreciated the generous tribute that she paid to her predecessor, Sir Julian Brazier, and I thank her for it.

I want to spend the time that I have in trying to address what seem to me to have been the three chief criticisms of the Bill expressed in various quarters of the House during the two days of debate on Second Reading: the question of the underlying principles of EU law; the matter of devolution and the powers of the devolved Administrations; and the issue of the delegated powers that are granted by the Bill. Then, again, I will try to say something about how the Government see the way forward. Let me start, however, by reminding the House why the Bill is needed.

Both the Opposition Front-Bench spokesman, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), and my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), neither of whom could be characterised as ardent champions of the leave cause—indeed, I count myself rather in their camp on the issue—said that the Bill does not determine whether or not we leave the European Union. That was a decision that the electorate took democratically last year, and both the fact of our departure and the process and timetable that govern that have to proceed now according to the process and timeframe laid out in article 50 of the treaty on European Union. What the Bill does is enable us to have a coherent, functioning statute book and regulatory system on the day that we leave and thereafter, because at that date—to take the words of article 50—the treaties cease to apply to the United Kingdom, so the rights and responsibilities that have effect legally in the United Kingdom because of European law will fall away unless they are imported into United Kingdom law by this Bill.

There were many eloquent contributions from Members about the concerns they or their constituents had about the future of various rights—employment rights, environmental rights and so on—that they currently enjoy; the hon. Member for Blaydon (Liz Twist), in recent hours of the debate was one such. My response is that those very employment, environmental and other rights, conferred as a result of EU regulations or judgments of the European Court, are continued by this Bill on a United Kingdom legal basis as part of what my hon. Friend the Member for Louth and Horncastle (Victoria Atkins) described as the wholesale adoption of European law. I have to say to the official Opposition that to vote against the Bill, as they propose to do, is therefore to vote against continuing those rights on a United Kingdom legal basis. It is to put those rights at risk, and open up the risk of a chaotic departure from the European Union, which is not going to be in the interests of either individuals or businesses in this country.

[Mr Kenneth Clarke]

rose—

[Stephen Timms (East Ham) (Lab)]

rose—

[Mr Lidington]

I give way to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke).

[Mr Clarke]

Throughout the discussion on this Bill, it has been entirely uncontroversial for everybody to agree that a Bill is required to ensure continuity and certainty for existing EU legal arrangements, putting them into British law straight away for the future. Will my right hon. Friend give an undertaking that when we move to the Committee stage in a few weeks, or probably about a month, the Government will produce substantial amendments to address what this whole debate has been about: the huge extension to the Government of discretionary powers that go far beyond the limited ambition my right hon. Friend is describing? I would prefer him and the Government to come back, address those issues and turn this Bill into one that resembles the reassuring descriptions of it that keep being given by the Secretary of State for Brexit and by him—two members of the Government whose word I would actually accept implicitly, but in the political world I have known Governments to go back on reassuring words quite frequently.

[Mr Lidington]

I want to come on to that point later, but I first give way to the right hon. Member for East Ham (Stephen Timms).

European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

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

[Frank Field]

I have been corrected and I withdraw my comment, but the idea that the biggest decisions of our lives, such as that to buy a house, are the ones that we take the most time over is not borne out by any research whatsoever. I do seriously apologise to my right hon. Friend.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

The right hon. Gentleman has been a political ally of mine in previous cross-party arrangements, but not on this occasion. He has dodged answering the perfectly serious point that the right hon. Member for Leeds Central (Hilary Benn) just put to him. As things stand, article 50 will take effect in March 2019 and we will leave. Anything in the Bill is superfluous to that. A problem could arise only if—and this is possible—28 member states all agree that they are near to a conclusion but that they require a few more days or weeks to settle it. Once we are going they will not want us to stay in much longer, because they will not want us around for the European Parliament elections. However, it would be utterly foolish if 28 Governments all agreed to extend the process and the British representative had to say, “But we’ve put into British law a timing that says, to the second, when we are actually leaving.” That seems to me a rather serious flaw in the proposed new clause.

[Frank Field]

The right hon. and learned Gentleman is such a good lawyer, but I wish he had read my new clause, because it notes the day rather than the minute that we will leave. Despite all the encouragement from Members behind me, I was so anxious to withdraw what I said about my right hon. Friend the Member for Leeds Central (Hilary Benn) that I forgot to address his substantive point, and the right hon. and learned Gentleman has reminded me to do so. If we look over our whole history in Europe, we will see that the idea that we finish any negotiations other than at the very last minute is almost unheard of. By including the time, we will be saying, “You will have to begin your shenanigans the month before rather than the month after.”

In conclusion, I am grateful for being allowed to move the second reading of this new clause, to remind people that it is part of a short exit Bill.

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[Mr Baker]

I am very grateful to my right hon. Friend. He has perhaps anticipated my speech by a few paragraphs.

UK Ministers and Ministers in the devolved Administrations have made nearly 6,000 domestic regulations under section 2(2) on topics as disparate as air fares, public contracts and preserved sardines. The House, of course, has not remained supine in absorbing all this legislation. We have benefited from the tireless work of the European Scrutiny Committee, chaired so ably by my hon. Friend the Member for Stone (Sir William Cash). It has scrutinised a vast number of EU documents, supporting this House in holding Ministers to account when representing our interests in the EU. Its work has been of paramount importance in holding Ministers to account and maximising the voice of this House on EU matters. On occasions, deliberations in this House have influenced the laws adopted by the EU, but ultimately this House was, on every occasion, obliged to implement our EU obligations. We could not refuse new EU law because of our obligations to the EU.

[Mr Kenneth Clarke]

Does my hon. Friend accept that most of this legislation is proposed by the Commission, considered by the Council of Ministers, including a British Minister, and, nowadays, approved by the European Parliament before it becomes law? Can he name a significant European law or regulation that was opposed by the British Government at the time, which the Government are now proposing to repeal? Most Brexiteers cannot think of one.

[Mr Baker]

I am most grateful to my right hon. and learned Friend. I think the question at stake here is not whether there are legitimate processes in the EU; it is whether we approve of them. The one that I am always glad to bring to people’s attention is, of course, the ports regulation, which we will have to stick with all the while we are within the EU. It is perhaps unique in being opposed by the owners of ports, trade unions and, it seems, all parties involved with our strategic interests in ports. They are all opposed to that regulation. I very much look forward to the day that we can make our own decisions about how our flourishing private sector infrastructure works.

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[Paul Blomfield]

No, I will not.

Rather, I should say that the Prime Minister is letting the Foreign Secretary and the Environment Secretary tie her hands for her. She is putting internal party management before the national interest. This country deserves better, and we are offering it.

[Mr Kenneth Clarke]

I abstained on Second Reading and I voted against the timetable motion. I felt it was not possible to vote against Second Reading because a technical Bill of this kind is certainly required for when we leave the European Union, to avoid the legal hiatus and total uncertainty that would otherwise occur about what law actually applies in this country. I abstained rather than supported the Bill because I feel that, for many reasons that will become clear in the days of debate to come, the Bill goes far beyond its original purpose and is drafted in such a way as to try to deprive Parliament of a proper vote and say on perfectly important features. I hope that all that will be corrected by a Government who we have been assured—I accept this—are going to listen to the debate and see what is required and what is not.

I wish to touch briefly on two features of this debate, the first of which is the repeal of the European Communities Act 1972. There are only two Members left in the House of Commons who were here when the European Communities Act was passed, and I am glad to say that we are both consistent. The hon. Member for Bolsover (Mr Skinner) and I continue to vote against each other on all matters European, and we always have done. I always assure the Conservative Whips that they can look forward to the hon. Gentleman supporting them on most of the issues on which I vote against them, and I am sure that that will continue to be case.

On a serious note, the European Communities Act was passed on a bipartisan basis, which I helped to negotiate as a Government Whip—that is, Labour rebels supported the majority of the Conservative party to get us in. Before everyone deplores it, let me say that I do not think it has turned out to be a harmful piece of legislation at all. Apart from the predictable people—my right hon. and hon. Friends on the Back Benches—no one has ever sought to repeal it. The idea, which is very popularly put forward by the UK Independence party and others, that the Act has led faceless grey Eurocrats to produce vast quantities of awful legislation and red tape, is one of the biggest myths of our time. I pay tribute to Nigel Farage’s campaigning abilities. There is absolutely no doubt that he is the most successful politician of my generation, because he has persuaded a high proportion of the population that that is exactly how it runs. No doubt they are all looking forward to having bent bananas again once we have repealed all these pieces of legislation. I once fought an election in which quite a lot of my constituents had been persuaded that the Eurocrats were about to abolish double-decker buses. It took some considerable time to try to refute that rather worrying belief.

[Mr Paterson]

My right hon. and learned Friend’s stand on this issue has been completely consistent for decades, but can he stand up before the Committee and justify staying within the common fisheries policy on ecological, environmental, economic or social grounds?

[Mr Clarke]

I look forward to seeing what a British fisheries policy is going to comprise. This is outside the scope of the debate, so I shall be as brief as I can be, but the average fisherman I meet seems to believe that if we exclude foreign ships from our waters, we can give up all this scientific stuff about conserving stocks and there will no longer be any quotas. That is the usual argument put to me. Of course, most British fish is sold in the European Union—it is a very important market for us—and it is of course inconceivable that EU countries could be so vicious as to react to our throwing their ships out by not buying the fish that we catch. No doubt in due course a more rational British fisheries policy will emerge, and no doubt we will debate it in a more comfortable context.

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[Sir William Cash]

rose—

[Mr Clarke]

If there is anybody in this House who knows each of the 1,600 regulations in meticulous detail, it is my hon. Friend the Member for Stone (Sir William Cash).

[Sir William Cash]

Indeed. I wish to challenge my right hon. and learned Friend on his assertion that the manner in which the Council of Ministers has been operating has been adequately democratic and transparent. Can he please explain to us, from his own extensive experience, how it works and will he deny that, for the most part, it is done behind closed doors and that it is done by consensus, so nobody knows who decides what, how and when?

[Mr Clarke]

Under the Major Government, we introduced a process whereby parts of the European Council meetings were held in public. The Council of Ministers do hold public sessions, and an attempt was made to reach decisions in public sessions. It probably still goes on. [Interruption.] It does not amount to very much.

[Sir William Cash]

rose—

[Mr Clarke]

No, let me finish my answer. We did try to tackle this criticism. What happened was that each of the 28 Ministers gave little speeches entirely designed for their national newspapers and television, and negotiations and discussion did not make much practical progress. When the public sessions were over, the Ministers went into private session to negotiate and reach agreement. I used to find that the best business at the European Council was usually done over lunch. I have attended more European Council meetings than most people have had hot dinners. The dinners and the lunches tended to be where reasonable understandings were made. There were very few votes, but Governments made it clear when they opposed anything. When the council was over, everyone gave a press conference. It was a slightly distressing habit, because some of the accounts of Ministers for the assembled national press did not bear a close resemblance to what they had been saying inside the Council. I regret to say that some British Ministers fell into that trap. British Ministers and Ministers of other nationalities who had fiercely advocated regulating inside the Council would hold a press conference describing their valiant efforts to block what had now come in, which confirms some of my hon. Friend’s criticisms.

The fact is that most British Governments made it clear what they opposed and what they did not. If a regulation was passed in their presence, they had to come back here to explain why they had gone along with it. Now, that is enough on the European Communities Act.

[Anna Soubry]

Does my right hon. and learned Friend agree that, notwithstanding what happened in the past, the reality is that we have had the referendum and 52% have voted to leave, so it is now imperative that we all come together as much as we can to get this right? We need to get the best deal and the best legislation to deliver that deal. Most importantly, we must return sovereignty to this Parliament, which should have its proper meaningful vote and say—deal or no deal.

[Mr Clarke]

My right hon. Friend leads me back to the serious core of this debate. It will be disastrous if we do not get it right on this important matter—the question how precisely the Bill sets out the timing of the departure that is going to take place.

[Kevin Brennan (Cardiff West) (Lab)]

Will the right hon. and learned Gentleman give way?

[Mr Clarke]

I will in a second. I can assure the hon. Gentleman that I am trying to be brief.

I made this point once in an intervention, but it is an extremely serious matter. When the Government produced this technical Bill to stop the legal hiatus, they saw no reason to put any reference in it to our departure date from the Union. They had reason: there was no reason to put it in. Article 50, supported—despite my vote against—by a large majority of the House of Commons, sets the date of 29 March 2019, and the whole Bill proceeded on that basis. But in the past few days, partly in response to the new clause of the right hon. Member for Birkenhead (Frank Field), the Government have suddenly produced the most precise amendments, tying down our departure to the second.

With great respect to the right hon. Gentleman, his new clause could easily have been defeated: the Labour party would have voted against it; I would have voted against it, for what it is worth; and the Scot nats and the Liberals would have voted against it. Even the Government trying to apply their Whips to get it carried—if they had been foolish enough to do so—would have had a job getting a majority for his new clause. So I do not think that it was fear of the right hon. Gentleman, despite his formidable oratory, that caused the Government to table their amendments. What has happened is that they tried to make a concession to the pro-Europeans—the more moderate Government Back Benchers—by conceding the obvious common sense that, when we get there, we will have to have a meaningful, lawful vote on whatever deal is produced and that we will have to have legislation to move to the final period. It is not a great concession.

With great respect, the Government have not quite got it right yet, as we discovered the other day. All these great processes could take place after we have already left, particularly if the Government’s amendments are passed, which increase that risk. But they made what might have been seen by some as a dreadful concession to—of all people—my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for Broxtowe (Anna Soubry). Shock! Horror! What kind of press would that produce; what kind of reaction from the fourth row below the Gangway behind me? So somebody was urged to bring something that could be thrown as a sop to the Foreign Secretary and the Environment Secretary, and produced this ridiculous Government amendment. But it is not just ridiculous and unnecessary; it could be positively harmful to the national interest.

[Kevin Brennan]

Despite what the right hon. and learned Gentleman just said, is not it fortunate that the Government have time to rethink this? It has already been made clear that the Government and the Opposition will oppose the new clause of my right hon. Friend the Member for Birkenhead (Frank Field). The Government amendment on the matter will not be considered until the eighth day in Committee. Therefore, is not there ample time for the Government—without losing face—to listen to the right hon. and learned Gentleman’s good sense and withdraw their amendment before that time?

[Mr Clarke]

I will not try to emulate the hon. Gentleman’s eminently sensible advice. By the time the Government have to concede this point, which I trust they will, we will all have forgotten the slightly odd circumstances in which this amendment was produced. He sums up the situation.

It is quite unnecessary to close down our options as severely as we are with this amendment, when we do not know yet what will happen. It is perfectly possible, on all precedents, that there is a mutually beneficial European and British need to keep the negotiations going for a time longer to get them settled and not to fall into the problems this Bill was designed to address.

[Heidi Allen (South Cambridgeshire) (Con)]

Will my right hon. and learned Friend give way?

[Mr Clarke]

I am going to conclude now. I apologise to my hon. Friend.

Other things that have come up in this debate are extremely important and need to be returned to—and will be returned to—many times in the Bill’s Committee stage. The whole question of the obvious need for a transition stage, and the obvious need for a transition stage to continue with our relationship on its present terms, until the new terms have been clarified and so business can run smoothly, must be reflected in every word of this Bill, and we must not seek to put obstacles in the way.

The Florence speech was a most significant step forward—indeed, it was the only significant step forward that the British have so far taken in the whole negotiating process. I do not know—I suspect, but I do not know—whether there are amendments to the Bill whose main efforts are devoted to trying to step back again from the Florence speech, but just in case, I hope that the Government will welcome all efforts to put the spirit of the Florence speech, and indeed its content, into the Bill.

I hope that we will not have these necessary and detailed discussions, of which this debate is just our first, somehow interfered with or shot down when the criticisms get difficult by people saying, “Oh, you’re remoaners. You’re trying to reverse democracy. You have been instructed by the people to leave Euratom. You have been instructed by the people to reject the European Court of Justice.” The referendum—I have no time for referendums personally—certainly settled that the majority wanted to leave the European Union. It settled nothing else. As nobody expected leave to win—including the leave campaigners, who would have taken no notice of the referendum had they lost it—nobody paid any attention to what leaving actually meant in practical, legal, economic policy and business terms, which it is the duty of this House to debate. We had no instructions.

When anybody mentioned problems of trade, investment and jobs, which are only part of the problem, although a hugely important part, they were waved away by leave campaigners, including the leading leave campaigners. The present Foreign Secretary dismissed all that—it was the politics of fear. Trade would carry on just as before. Investment would flow just as before. That was what the public were assured and what most of them believed, whichever way they eventually voted.

Well, even the Foreign Secretary is going to have to read his brief and study the basis upon which international trade is conducted in the modern, globalised economy. We are going to have to avoid a House of Commons, which universally expresses a belief in free trade, quite needlessly putting protectionist barriers, by way of tariffs, customs procedures and regulatory conditions, between ourselves and our biggest and most important market in the world.

I look forward to hearing my hon. Friend the Member for Stone as the debate continues. I have listened to him, and greatly enjoyed listening to him and debating with him, for many years on this subject. He now represents orthodoxy and party loyalty. He now argues there is too much parliamentary debate and that we should not have votes on this—it has all been settled by the voice of people. I am the rebel. I espoused the policies that the Conservative party has followed for the 50 years of my membership of it until we had a referendum 18 months ago, and I regret that I have not yet seen the light. He and I, like the hon. Member for Bolsover, remain consistent; we are probably each of us wrong. In the course of this, there are some very, very serious issues to be settled in this Bill. I ask the Government to reconsider silly amendments that were thrown out because they got a good article in The Daily Telegraph but might eventually actually do harm. [Applause.]

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[Sir William Cash]

Yes, the reality is that the Bill, if and when it goes through—and I believe it will—will incorporate into UK law EU legislation already consented to in the way that my hon. Friend mentions. We have agreed to them, but unfortunately they have not had the democratic legitimacy that will be conferred upon them when the Bill goes through.

I proceed now to the important question of the European Court of Justice. I made this point to the Prime Minister about 10 days ago and again to the Brexit Secretary last week. I wish to mention three pieces of case law that we inherited when the treaties that had accumulated after 1956 came upon us through section 2 of the 1972 Act. The first two are Van Gend en Loos in 1963 and Costa v. ENEL in 1964. In its judgment in the first case, the European Court asserted that

“the Community constitutes a new legal order in international law for whose benefit the states have limited their sovereign rights”.

In Costa v. ENEL, the Court ruled:

“The transfer by the States from their domestic legal system to the Community legal system of rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights”.

In 1970, in the Handelsgesellschaft case, the Court said that community law should take precedence even over the constitutional laws of member states, including basic entrenched laws relating to fundamental rights. It does not get more profound than that. Those decisions are mere assertions by the Court, yet under section 3 of the 1972 Act, we agree to abide by them.

[Mr Kenneth Clarke]

Will my hon. Friend agree that all treaties involve a pooling of sovereignty? We gave up immense sovereignty when we joined the United Nations and NATO, membership of which we would never dream of renouncing. The European Court exists to enforce treaty rights, including obligations on members. Does he recall probably the most important case there of modern times, when the British Government took the European Central Bank there to assert our treaty rights so that the City of London and our financial services industry could have a passport to financial services in the eurozone? It was worth thousands of jobs and showed the benefit of the Court in upholding treaty rights, including the most important treaty rights of the UK.

[Sir William Cash]

I also remember the case of Factortame, when Lord Bridge made it clear that by Parliament’s voluntary consent, given by virtue of the 1972 Act, an Act of Parliament—namely, the Merchant Shipping Act 1988—could be struck down. I am not trying to be disingenuous. The fact is that the 1972 Act empowers the European Court to strike down UK Acts of Parliament. That is what sovereignty is all about.

--- Later in debate ---

[Mr Leslie]

Let us imagine the circumstances where exit day falls at that fateful 11 pm on 29 March 2019 and there is no legislative architecture in place for the transitional period from 11.1 pm and thereafter. At present, there is no guarantee from the Government—I will give way to them if they will guarantee it—that that legislation will be put in place, published and consulted on and that businesses will know what the transitional legal framework will be from 11.1 pm on 29 March 2019 onwards. The Government have said that we might not get the latest offer of an Act of Parliament until not only after a withdrawal treaty has been signed and sealed by Ministers, but after exit day. There is, therefore, a hiatus. What is the legal architecture that fills the gap in that transition? That is the question I am asking in new clause 14.

[Mr Kenneth Clarke]

Just to reinforce the hon. Gentleman’s question: the Bill seems to say that after exit day all European law and legal obligations drop and the jurisdiction of the ECJ goes. If we have the transition period proposed in the Florence speech, the subsequent Bill will presumably have to amend this Bill, change the Government’s position and produce new provisions that qualify it. Given that the Florence speech seems to be the only policy we can cling to—it is agreed to by both Front-Bench teams, in theory—would it not be logical just to put the substance of that speech into this Bill and adjust it so that it complies with it?

[Mr Leslie]

The right hon. and learned Gentleman and I have shared this inspiration in the form of an amendment that will also come up on day eight of Committee. Of course, the Labour Front-Bench team will shortly be talking to their own amendment 278, which seeks to deal with this problem by deferring exit day until after the transition has been completed. The idea essentially is to keep the existing legal framework in place, not just for the period up until exit day but for the transition period. That, of course, is one way to solve the problem.

The Bill, though, cannot adequately deal with the transition, and not just because of the contradictions in clauses 5 and 6. Even if one stands on one leg and squints a little bit at the order-making powers in clauses 7 or 9, none seems capable of dealing with the implementation of a transition period. It is clear, then, that we need answers from Ministers. They have said that they will bring forward a Bill, but they have to ensure certainty for business during the transition period. It could be a two-year-plus period. I do not think that two years is long enough, but if it is to be two years, that is still a long time for businesses to operate without a framework of legal certainty. New clause 14 simply says that Ministers must give details within one month of Royal Assent as to how the ECJ arrangement will apply during the transition.

--- Later in debate ---

[Dominic Raab]

If the hon. Gentleman will allow me, I shall make a little progress, because I suspect that—

[Mr Kenneth Clarke]

Will my hon. Friend give way?

[Dominic Raab]

I am going to make a little progress, because I think that some of these queries will be addressed in the discussions on the amendments that others have tabled.

I return to clause 6. For as long as retained EU law remains in force in the UK, it is essential that there is a common understanding of what that law means. That is critical for legal certainty and, in real terms, for the very predictability of law that businesses and individuals rely on every day as they go about their lives. We want to provide the greatest possible certainty—I suspect that, for all the thunder and lightning in this debate, that is a shared objective underpinning it all—and the question is how we achieve that. Clause 6 will ensure that UK courts must continue to interpret retained EU law using the Court of Justice of the European Union’s pre-exit case law and retained general principles of EU law. Any other starting point would be to change the law. That is certainly recognised by the Government.

[Dominic Raab]

I am going to make a little more progress, but I will give way to my right hon. Friend in due course.

The crucial point reflected in clause 6 is that the intention is not to fossilise past decisions of the ECJ for ever and a day. The clause provides that our Supreme Court—and, indeed, the High Court of Justiciary in Scotland—will be able to depart from pre-exit case law. In doing so, they will of course apply the same tests as they do when departing from their own case law in the ordinary way.

We have, in my view at least, the finest judiciary in the world. Our courts are fiercely independent of Government, as they have already proved during the Brexit process. The clause will provide them with clarity about how they should interpret retained EU law after exit. As we take back control over our laws, it must be right that the UK Supreme Court, not the European Court of Justice in Luxembourg, has the last word on the laws of the land. It is therefore of paramount importance that the clause stands part of the Bill.

[Mr Kenneth Clarke]

The Minister is being very helpful on one aspect of the Bill, which is how the Government think European law should be interpreted once we have finally exited, but he is sidestepping the key point put to him by the right hon. Member for Leeds Central (Hilary Benn). As it stands, clause 6 does not reflect current Government policy. It is not putting the cart before the horse to ask whether current Government policy, as represented in the Florence speech, should be reflected in the Bill. The fact is that the Government are seeking, expecting or contemplating the real possibility of a transition period during which we will stay in the single market and customs union and be subject to the jurisdiction of the Court. Why is the Bill being presented and urged by the Government in terms that are totally—

[Mr Duncan Smith]

They are not!

[Mr Clarke]

They are. It may not be agreed by Eurosceptics, but that is Government policy, supported by the official Opposition. Why is it not in the Government Bill?

[Dominic Raab]

I will come to that precise point in the context of new clause 14, which has been tabled by the hon. Member for Nottingham East (Mr Leslie). The proposed change refers to the transitional period after the UK exits the EU. I thought that the hon. Gentleman put his points in a perfectly reasonable way.

--- Later in debate ---

[Wes Streeting]

I am not sure that the Minister had a chance to finish his point, and I would be happy to give way again so that he can answer this central question. It is a simple question. The reason why the issue is so problematic is that many of us have been listening carefully to the concerns being expressed in many sectors of our economy about the uncertainty surrounding Brexit. We have heard a simple message: that the biggest risk to this country’s economy at this time is uncertainty.

If the Government want to reassure those sectors of the economy—manufacturing businesses with supply chains in the European Union, for example, or financial and professional services worried about whether contracts will still be honoured and upheld or whether jobs and activity can be relocated—they could give those industries the central message that during the transitional period, the existing structure of EU rules and regulations will apply.

[Mr Kenneth Clarke]

Perhaps I may assist the hon. Gentleman. I was present during the debate when the Minister addressed this question and, so far as I can remember, he did not answer this perfectly straightforward question at all.

[Wes Streeting]

I am grateful to the right hon. and learned Gentleman. I am sure that if he did not hear a clear answer, most other Members did not hear one either. This is a golden opportunity for the Minister to answer the question. The Secretary of State has now arrived in the Chamber. Perhaps he will be able to help the Minister out. The simple question is whether, during the transition period, the European Court of Justice will still have jurisdiction in the way that it does at present. Can the Secretary of State give us clarity on this one point? This is a simple and fundamental question—[Interruption.] Come on!

European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

Committee: 2nd sitting: House of Commons
Wednesday 15th November 2017 Commons Chamber

[Mr Grieve]

I fully appreciate that my hon. Friend has a great distaste for the way in which this law has been imported into our country during the course of our membership of the EU. However, two wrongs do not make a right. He could profitably look at the prolonged period of time it is going to take to replace all this law—five years, 10 years, 20 years, 30 years? I would be prepared to have a small wager with him that some of this is still going to be around in three or four decades to come.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

My right hon. and learned Friend concedes that two wrongs do not make a right. May I point out to him that the introduction of qualified majority voting was an achievement of the Thatcher Government? We persuaded the European Union to adopt the single market because we did not want small countries to be subjected to little pressure groups holding up very important standards that we needed to achieve in the new market we were creating. Mrs Thatcher sent as her commissioner Arthur Cockfield, who presided over several thousand of those being introduced so that the single market could get under way.

[Mr Grieve]

My right hon. and learned Friend is entirely correct. If I may explain, I was simply attempting—although I sometimes find it quite difficult—to put myself into the position of my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), who had explained his distaste. Having done so, I was trying to explain why he should still be concerned. I could not agree more with my right hon. and learned Friend. I am not troubled by the way in which this law has come into our country. We have kept our sovereignty. We made a choice to do this, and we did so because of an awareness of how, as international relations develop, it was in our national interest. That may represent a philosophical difference, but as I pointed out, there is all sorts of international law out there that binds us that did not originate in this Chamber.

We should be concerned about the fact that these laws matter. I do not know whether they matter to my hon. Friend the Member for Stone or other hon. Members, but if we go out into the street and ask people whether equality law—

--- Later in debate ---

[The Solicitor General]

The hon. Gentleman has been a committed pro-European throughout his career. I enjoyed his YouTube videos during the campaign—[Interruption.] I look forward to starring in one. We must not forget, however, that the important sunset provisions in clause 7 limit the use of such powers to two years after 29 March 2019. Clause 9 is now sunsetted to a very restrictive interpretation with regard to the duration of its powers. I hope that that, together with the important policy statements we have made, and are making again today, will give the hon. Gentleman the comfort he is looking for. [Interruption.] He is chuntering away. With respect, perhaps he could hear me out. I am trying to give him the comfort he rightly seeks for his constituents and to reassure him that his fears are unjustified.

[Mr Kenneth Clarke]

My hon. and learned Friend accepts that the problem is that the Bill includes powers that could be used to make drastic reductions in environmental standards and other things without any proper parliamentary process. There is a widespread consensus among remainers and leavers that we do not want the powers to be used in that way. He sounds as though he is about to reassure us that the policy of the present Government is that although they are taking the powers, they have no intention of using them for such purposes. I have the highest regard for him—he is a personal friend—and I quite accept that a Government led by this Prime Minister is not about to use draconian powers to lower standards, as her instincts are quite the other way. Given that the powers are therefore not needed—we do not need a Bill to give us powers that no one wants to use—why can we not amend the Bill to put it beyond doubt that no such attempt will be made? Heaven forfend that my party should swing to the right at any time in its long and distinguished history, but there are members of the present Government who are not excessively fond of lizards and bats, or workers’ rights. We would all be reassured if he undertook to put in the Bill a reduced level of powers.

--- Later in debate ---

[The Solicitor General]

One reason the hon. Lady has not heard me outline that concern in detail is that clause 4 is the sweeper clause and my hon. Friend the Minister of State, Ministry of Justice, will deal with that in the second part of the debate. I assure her that, by the end of today’s proceedings, her concerns will, I hope, have been addressed during the debate on clause 4.

I want to deal with the amendments, having, I hope, made—

[Mr Kenneth Clarke]

Will my hon. and learned Friend give way?

[Mr Grieve]

Will my hon. and learned Friend give way?

--- Later in debate ---

[The Solicitor General]

No, I would like to press on, if I may. I am mindful of the time, and I want to make sure that we get these points on record.

I want to deal with the points, which I hope hon. Members want to hear, about the Government’s commitment not only to workers’ rights but to consumer protection rights and environmental obligations—all of which have been very much a part of the work that we have done with our European partners during our 43 years of membership of the European Union. That does not change. I want to move on to some of the other amendments—

[Mr Kenneth Clarke]

I thank my hon. and learned Friend for giving way. This is quite an important issue. A moment ago, I thought that he was on the brink of saying that he would try to come back to the House on Report with the Government’s own legislative proposals to give effect to the good intentions that he has assured us the Government entirely share, but at the last moment he hesitated. When he said yes, was he committing the Government to putting in the legislation the best solution in response to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) in particular, so that we could all be assured that the Bill will leave this House in a way that we entirely unanimously accept?

[The Solicitor General]

I am committed to trying to achieve the best solution, whether it is in the Bill or in an amendment to Standing Orders. I will not presume to tie the hands of this place. I hope that my right hon. and learned Friend can take that as a clear assurance that I will do whatever I can to get this right.

The first and most important point to be made about new clause 15, tabled by the hon. Member for Nottingham East (Mr Leslie)—it has, I think, already been made by several other Members—is that we have strong rights and protections here, domestically, which are not contingent on our future membership of the EU. We have a proud record, and in many areas our standards far exceed the minimum standards required by EU law—for instance, entitlement to annual leave and maternity allowances. When we leave the EU, it will be for this Parliament and, indeed, the devolved legislatures to determine the law and the rights that apply here in the United Kingdom.

I must say to the hon. Member for Nottingham East, with respect, that in my view the new clause would impose an onerous and unnecessary duty on the Government. There will be nothing to stop future Governments of whatever hue, or future Parliaments when exercising their sovereignty, from considering any legislation that the EU or the European Economic Area may make. They need not be obliged to do that; it will be a matter that they can take into consideration. A requirement to report to Parliament each and every time the EU amended its rules would be excessively onerous, given the number of reports that might be made and considered.

Moreover, we do not want to give the inappropriate impression that the path followed by our European partners will always be the path that we as a UK Parliament should follow. While I am entirely supportive of many measures that ensure that we work, converge and keep pace with our European partners, there will of course be plenty of opportunities for us to forge our own path. That, after all, is what the vote was all about.

--- Later in debate ---

[Stephen Kinnock]

I would like to speak in favour of new clause 2 and new clause 58, which have been tabled by those on the Labour Front Bench.

There is an idea that we should be giving the Government the benefit of the doubt on these issues. There have, however, been so many statements and acts from those on the Government Benches to undermine employment rights, from the Trade Union Act 2016 to many other measures, that we need to ensure we anchor the rights of our workforce in the Bill.

The Exiting the European Union Committee met Mr Barnier in Brussels last week. One point he made very clearly is that as we move towards a future relationship, the so-called deep and comprehensive free trade agreement will need to be ratified by the Parliaments of the member states, plus a number of regional Parliaments. They will not accept anything that he described as “social dumping”—they will not accept undercutting and they will not accept unfair regulatory practice—so if the Government are serious about getting a deep and comprehensive free trade agreement with the EU they will have to recognise that regulatory equivalence will have to be a critical part of it. This is about not only securing rights in this country, but the economic interests of the country if we are serious about having that future relationship.

[Mr Kenneth Clarke]

I entirely endorse what the hon. Gentleman says about a free trade agreement with the European Union requiring regulatory equivalence. Actually, this is not a uniquely European thing or a malicious Brussels proposal. Modern trade agreements in a globalised economy all depend, more than anything else, on mutual recognition or regulatory convergence in the sectors where free trade is going to be allowed.

[Stephen Kinnock]

The right hon. and learned Gentleman is, as always, absolutely correct. We need to recognise the umbilical cord connecting the regulatory playing fields to the trade agreements because of the nature of unfair competition and unfair practice. None of the EU member states will accept such agreements without that. What was particularly interesting about what Mr Barnier said was that the comprehensive trade discussions will be on the basis of article 218 of the treaty, which requires ratification by 27 member state Parliaments and eight regional Parliaments. The level of scrutiny, therefore, will be even greater under the future relationship than under the transitional relationship, which we know will be a carbon copy of the status quo, including on ECJ jurisdiction. I think the Government have accepted that, although there seems to be an attempt to wriggle out of some aspects. The fact remains, however, that a transition deal will be a carbon copy of the status quo.

European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

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

[Mr Leslie]

Indeed. My right hon. Friend has stolen the punchline that I was building up to, because that is the one example that I thought would surely clinch the argument. Of all the people who really should value the charter of fundamental rights, surely it is the Secretary of State.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

Given that the charter has been part of British law for some years now, the case for repealing it must be based on some harm that it has done. I have never heard anyone describe any harm that the charter is supposed to have done to any public interest in this country, so presumably the hon. Gentleman, like me, awaits some examples to justify the proposed change.

[Mr Leslie]

Absolutely. We might hear a different argument from Ministers, but traditionally the Government’s argument has been, “Don’t worry about the charter of fundamental rights; it doesn’t have any effect, it isn’t necessary and we can do without it because it is already there in British law.” It is rather like what the right hon. Member for New Forest West (Sir Desmond Swayne) said in his intervention. Of course, if that is the case, why are the Government deliberately excising it from UK law, and why would they resist new clause 16? The new clause does not even require the charter to be retained—I happen to think that it should be retained—but simply states that Her Majesty’s Government should lay before Parliament within one month of Royal Assent a review of the implications of removing it.

--- Later in debate ---

[Mr Grieve]

I am grateful to my right hon. Friend for his intervention. As I have said on many previous occasions, whatever merits I may have as a lawyer, I am not a parliamentary draftsman. On top of that, I gently point out that, in an effort to get my amendments in early, they were, in the usual way, drafted with a wet towel around my head at about 30 minutes past midnight on the night before Second Reading. I am therefore quite sure that they are all capable of substantial improvement. Indeed, in my experience, it is very unusual for an amendment ever to be accepted just like that, apart from when it adds a comma, particularly in Committee.

Yes, of course there are different ways in which this can be approached. Indeed, my hon. and learned Friend the Solicitor General, with whom I have had an opportunity for a bit of a chat—I shall look forward to talking to him further about this—has made it clear that he thinks I have been a bit too draconian in deleting paragraphs 1, 2 and 3. On the other hand, there are some other things in paragraphs 1, 2 and 3 that I find rather concerning. However, I shall confine myself to paragraph 3 for the moment.

[Mr Kenneth Clarke]

On whether the drafting is entirely right, so far, as far as I am aware, the Government have had absolutely no answer to the extremely clear case that my right hon. and learned Friend has made about the proper way to protect these cases in future. The obvious thing is for the Government to accept these amendments today, because they can come back on Report and start correcting and redrafting amendments to which I am sure that he will be wholly receptive. What I would not welcome is some vague assurances from Front Benchers that they will think about it and then might come back with something on Report. The drafting can be corrected later; the points that he is making need to be confirmed today.

[Mr Grieve]

My right hon. and learned Friend makes a very good point. He highlights the difficulty faced by all Back Benchers, particularly Government Back Benchers, in presenting amendments—namely, the extent to which they should accept assurances from Front Benchers. That largely depends on how detailed the assurance is—whether it is woolly and vague or has some specificity to it. My judgment on whether I might press amendment 10 to the vote will depend on how specific Front Benchers can be in providing an assurance that they recognise that, even if there may be areas that remain to be debated, there is a core issue that must be addressed about the ability to bring a right of action in domestic law based on a failure to comply with a general principle of EU law when it concerns the operation of retained EU law.

Furthermore, because retained EU law has supremacy over domestic law, it must be possible that there might be instances in which our domestic law would have to be altered. The Government cannot then argue that that is an extraordinary thing to do, because they have themselves drafted this Bill in a way that allows for the possibility of UK domestic law being quashed. That will, I hope, be for a temporary period. Nevertheless, I am unable to understand how, during that temporary period, we can end up with a situation where the Government are perfectly happy to allow for the supremacy of EU law but remove the very principles that moderate it, ensure that it cannot be abused, and, in those areas that were within EU competence, provide a framework under which the Government are undertaking to operate unless or until they repeal the bits of retained EU legislation that they are bringing into our law.

--- Later in debate ---

[Mr Kenneth Clarke]

Will my hon. Friend give way?

[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.

--- Later in debate ---

[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.

[Mr Kenneth Clarke]

My hon. Friend reassures us that even without the charter of fundamental rights the House of Commons can be relied upon. That was the argument when the Lisbon treaty was being ratified. There was a widespread feeling that it was not clear whether it would add anything, but we now see that it has added quite a lot, particularly around privacy law, on which the House had never done anything, and now data protection. The lobbies brought to bear on the House if ever we look at privacy by sections of the media and so on are very considerable. Why are we getting rid of a convention that has done no harm and actually has run ahead of this House of Commons at various stages? What will be gained by not leaving open that opportunity for the future?

[Dominic Raab]

I will come shortly to my right hon. and learned Friend’s substantive generic point and also touch on the data protection issue he raised.

The Government reaffirm and renew our commitment to human rights law. It is reflected through UK national law, including, most recently, the Human Rights Act, as well as a range of domestic legislation that implements our specific obligations under UN and other international treaties, from the convention against torture to the convention on the rights of the child. Of course, the principal international treaty most relevant to the UK’s human rights laws is the European convention on human rights. I again make crystal clear the Government’s commitment to respecting and remaining a party to the ECHR. There will be no weakening of our human rights protections when we leave the EU.

In fact, we have an opportunity to reinforce and build on our proud tradition of liberty and the protection of rights. We are already in the process of paving the way to ratifying the Council of Europe convention on preventing and combating violence against women, the Istanbul convention. We are leaving the EU, but our commitment to pan-European standards, human rights and the European co-operation in this area remains undimmed. Furthermore, as the my right hon. and learned Friend the Member for Beaconsfield is aware, we will introduce an amendment before Report stage, dealing explicitly with the Equality Act 2010 issues that hon. Members have raised, including by requiring Ministers to make a statement before the House on the consistency of any Brexit-related legislation with the Equality Act.

It is worth reinforcing the point that the charter is not the original source of the rights contained within it. It was only intended to catalogue rights that already existed in EU law. Indeed, I am glad that my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) intervened, because he wisely noted, as recently as 2011, before a European Committee, that protocol 30 governing the application of the charter

“sets out the boundaries around the charter by confirming that it neither creates nor extends any rights to EU citizens outside those that had existed pre-Lisbon, and it emphasises that member states are required to comply only when giving effect to EU law.”—[Official Report, European Committee B, 14 March 2011; c. 5.]

These rights, codified by the charter, came from a wide variety of sources, including the treaties, EU legislation and, indeed, case law, that recognised fundamental rights as general principles. All those substantive law principles and rights, of which the charter is a reflection not the source, will already be converted into domestic law by the Bill.

It is not necessary, therefore, to retain the charter in order to retain such substantive rights. With that in mind, it is right—this deals with the issue that the hon. Member for Nottingham East raised at the outset—for me to reaffirm the Government’s commitment, which the Secretary of State for Exiting the European Union made to the Select Committee, to publish a detailed memorandum setting out how each article of the charter will be reflected in UK law after we leave. I can confirm that we will publish that by 5 December. I hope that that reassures the hon. Gentleman and the hon. Member for Sheffield Central, both of whom raised this point. Let me say to my right hon. and learned Friend the Member for Beaconsfield that I am very willing to continue my dialogue with him on these important matters.

--- Later in debate ---

[Dominic Raab]

I will make a slight bit of progress, and then I will give way.

Seeking simply to transplant the charter into our domestic law as it stands, dislocated from EU membership —given all the other points that Members have made about the way in which it would apply in practice—would not be appropriate, and, indeed, could introduce needless complexities that all of us, on both sides of the House, should legitimately seek to avoid.

[Mr Kenneth Clarke]

My hon. Friend has addressed my question, but, with great respect, he has failed to give an answer. It is true that the charter was originally proposed as a statement of European values to which all members of the European Union could adhere, but, as we have heard, it has developed. If it is doing no harm, why are the Government going to such lengths to get rid of it as the one specific change in the Bill? Presumably it is because it contains the words “European” and “rights”, and this was intended as a Daily Telegraph gesture to the hard right wing of my party.

[Dominic Raab]

My right hon. and learned Friend’s intervention was not in quite the spirit in which we have conducted our proceedings so far, but I shall try to address his underlying concern, and I shall be happy to take another intervention from him shortly if he thinks that I have still not addressed it. He is a demanding customer, but I shall keep on trying.

--- Later in debate ---

[The Solicitor General]

It is a pleasure to follow the hon. Member for Edinburgh East (Tommy Sheppard). Let me take this opportunity to assure him yet again that our commitment to rights and freedoms remains absolute. I spent nearly 20 years at the criminal Bar dealing with the liberty of the individual. Indeed, I think I was a human rights lawyer before we even coined the phrase, as were many other Members on both sides of the House.

The point has already been made that our rights and freedoms long pre-date modern developments, but modern developments have no doubt helped to sustain, improve and enhance the range of those freedoms. The fundamental question that we seek to ask about the charter is whether, in the final analysis—as we are no longer to be members of the European Union—it adds anything relevant or material to the sophisticated and developing body of law that has evolved over generations. I do not think so, and I have reached that conclusion after extremely careful thought.

It is tempting, after a long debate, to try and treat this as a Second Reading wind-up, but we are far from that. Other Members are anxious to take part, and I am mindful of the time. I will therefore be true to the principles of debate in Committee, and deal with schedule 1, which I hope will be agreed to. In doing so, however, I will address the various amendments that have been tabled on pages 8 to 12 of the amendment paper—which is still the same size although we are now on day three of the Committee stage, and I am pretty confident that that will remain the case.

[Mr Kenneth Clarke]

Before my hon. and learned Friend moves on—very authoritatively, I am sure—to the details of the amendments, may I point out that he has just made an important statement? He said that he had thought about whether retaining the charter of fundamental rights after we had left would add anything to our legal rights in this country beyond what we already have. In the past half hour, we have heard my hon. Friend the Member for Eddisbury (Antoinette Sandbach) describe what she calls the third category of rights, which do not appear anywhere else in our law, and we have just heard the hon. Member for Edinburgh East (Tommy Sheppard) list three or four rights in the charter that are not replicated anywhere else. Which of those rights would the Solicitor General be happy to see abandoned? What is going to happen to the third category of rights? He must explain why he does not think the charter adds anything, given that the main reason people are trying to get rid of it is that it has extended the scope of European-sponsored human rights law in this country.

--- Later in debate ---

[Mr Kenneth Clarke]

We are making some progress, but I point out that I am the second name on the amendments tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), and I shall inquire of the Chair between now and the end of the debate whether I have a right to call for a vote on those amendments, which I think I may have. I am extremely glad to hear the Solicitor General say that he will bring forward a Government amendment, because he has vigorously rejected just about every argument that my right hon. and learned Friend has used throughout the debate and has stuck rigidly to the interpretation of the Bill as it stands—with which we started. Will the Government’s amendment at least seek a compromise if it does not move completely towards my right hon. and learned Friend’s arguments? It is no good fobbing us off with more discussion if the amendment will not actually change the policy.

[The Solicitor General]

With respect to my right hon. and learned Friend, I have talked in detail about the various paragraphs of schedule 1, and I have been looking in particular at paragraph 3. In response to the clarifications sought by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), I made sure that all of paragraph 3 would be the subject of that clarification and the tabling of an amendment. Neither my right hon. and learned Friend the Member for Rushcliffe nor I are fans of having our cake and eating it when it comes to EU withdrawal and, with respect, I am offering something substantial here that will certainly satisfy him this evening.

European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

Committee: 5th sitting: House of Commons
Wednesday 6th December 2017 Commons Chamber

[Mr Kenneth Clarke (Rushcliffe) (Con)]

Will the hon. Lady give way?

[Lady Hermon]

Of course; I would be delighted.

[Mr Clarke]

I do not think that I am one of the senior members of my party whom she is criticising. Does she agree that the Prime Minister, 48 hours ago, reached an agreement with the Taoiseach that seemed to show that the Prime Minister shared the hon. Lady’s concerns? We cannot have an open border without having some regulatory and customs convergence on both sides. That all came to an end when the DUP vetoed it, which makes it extremely important—more than it was—that her new clause be put into the Bill to make sure that we are not back-sliding. Of course, the DUP could always rescue its reputation by confirming that its only objection was to not having regulatory and customs convergence across the whole United Kingdom, and by agreeing, as she and I do, that regulatory and customs convergence across the whole island of Ireland is in the interests of inhabitants on both sides of the border.

[Lady Hermon]

That was very interesting. Lots of points were raised there. The DUP will have to speak for itself, and I am sure that at some point this afternoon, its Members will want to contribute to the debate. I am hugely grateful to the right hon. and learned Gentleman for confirming that he feels that the Government should accept my new clause; I thank him.

I felt deeply embarrassed for the Prime Minister on Monday. What was so interesting in her demeanour during Prime Minister’s questions today was her confidence at the Dispatch Box, and her response to the hon. Member for Strangford (Jim Shannon), who had a question on the Order Paper. It was a very interesting question, and the Prime Minister’s reply was significant. She seemed so calm, not that she does not normally seem calm—forget about the party conference; that was a very difficult experience for her, and we would not like that to happen to any of us. I suspect that she has spoken a lot to the leader of the DUP since Monday; that is what I hope, but I am not in that inner circle. I am not a member of the DUP, and its members do not come along to me and say, “Here’s the draft memorandum; have a look at it.” I hope that I am right in saying that there has been progress. If I am not, I am sure that a DUP Member will quickly get to their feet to contradict me, and they are not doing that.

--- Later in debate ---

[Stephen Doughty]

Indeed. I might have taken some Ministers at their word in the past, but there are others who would love to take back powers or to act without reference either to this Chamber or to the Chambers of the devolved legislatures, as we have seen on a whole series of issues. Ultimately we would end up in the Supreme Court, wasting lots of taxpayers’ money and in dispute. That cannot be the way to keep stability in the constitutional settlement.

My amendments are in no way intended to wreck the Bill or to undermine the process that the Government have set out, but they are absolutely essential to maintaining a stable settlement with Wales, Scotland and Northern Ireland. The events of the past 36 hours have shown why the Government have simply not paid enough serious attention to the unintended consequences of their various grand rhetorical statements. I will therefore seek to press amendment 158 to a vote at the appropriate time.

[Mr Kenneth Clarke]

It seems to me that the Brexit negotiations have finally started to reach a serious stage over the past two or three days. It is rather unfortunate that it is now 18 months since we held the referendum and more than six months since we invoked article 50, but we are still at the stage, which the British Government agreed to, of discussing the three preliminary points, based on our withdrawal, before we can get to discuss our new trade arrangements.

In my opinion, the rights of EU citizens could have been settled in five minutes, with a mutual recognition allowing British people who have moved to the continent and EU citizens who have moved here to retain the rights they expected to have when they made that important move. The financial arrangements should have taken about half an hour, because it was perfectly obvious that there would be financial obligations. We would not have known what the obligations were until we had concluded the negotiations, but the heads of agreement—the basis upon which the mathematics could eventually be done—should not have taken very long. The difficulties were political, and they were here in British politics and in the Conservative party. That delayed progress for a long time.

It is the extremely important Irish question that has posed the first really big issue that has to be solved properly. The hon. Member for North Down (Lady Hermon) made an extremely eloquent and moving speech—I will not attempt to rival it. Like her, I certainly remember the Irish troubles. I lived in Birmingham at the time when there were serious bomb attacks there. My first visit to Northern Ireland was with other Conservative MPs. We caused the security people a little consternation by entering a no-go area in Derry with John Hume, who I think had got us a laissez-passer from the IRA so that we could get in and see the conditions there. More seriously, several MPs were killed. I knew Airey Neave and the Rev. Robert Bradford, and Ian Gow was a good friend of mine.

The hon. Lady put it eloquently and movingly. I hope that nobody in this country still underestimates the huge achievement that the Good Friday agreement represents, or indeed the huge achievement it represents that Northern Irish politicians of all complexions have turned it into such a success, making Northern Ireland a more cohesive and peace-loving society, because nobody wants to return to anything resembling the troubles.

We agreed to address the Irish border problem as a preliminary issue, but nobody seemed to pay it any serious attention until about a week ago. Certainly, it was scarcely mentioned in our rather agitated British debate in this country. It was thought a rather odd feature that the Irish Government had somehow persuaded the other members to raise with us. But the effect on the Irish border of our leaving the European Union is of immense significance, for all the reasons we have now been stressing.

I thought that the Government’s policy on the border was slightly ludicrous. They keep saying that they are committed to an open border, and that is absolutely right and consistent with the Good Friday agreement. They then say that we are leaving the single market and the customs union. I have said many times in the House that those two outcomes are completely incompatible; the two together are an oxymoron—I think that is the correct phrase—because we cannot have one with the other.

I thought that at last the light had dawned and that the Prime Minister had moved in her discussions with the Taoiseach and reached an agreement. Despite the assertions she had been giving all the way through, but consistent with them—obviously she would say—she had agreed on behalf of the Government, and no doubt believed that she would get the approval of this House, to have regulatory convergence, in certain areas at least, across the border. I, like my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), took that to mean the whole United Kingdom, because we cannot have separate arrangements in Ireland.

At last common sense was dawning, I thought, because, whatever we call it, we cannot have any trade agreement with any other country in modern times unless we have agreed to mutually binding arrangements for regulatory and customs convergence—either harmonisation or mutual recognition in set areas. We will not get a trade agreement with Samoa—I think the Secretary of State has just headed there to make exploratory noises—if we tell them that we are not going to agree to any binding regulations or rules that will be mutually acceptable in whatever goods and services we trade.

That satisfied me, but then came this bewildering veto.

[Mr Gregory Campbell]

I am glad that the right hon. and learned Gentleman has returned to the veto, because vetoes have been mentioned several times in the debate thus far. Does he agree that what has been thoroughly unhelpful in the past 10 days is the arrival of Donald Tusk in Dublin, in effect to hand the Irish Taoiseach a veto by saying, “We in Europe stand with you, and whatever you want, we will back you.”?

[Mr Clarke]

That is hardly surprising. I do not think that Donald Tusk would go to any of the other 27 member states without saying that he accepts that their consent is required, and in this case, in particular, the Government of the Republic of Ireland have to be party to any agreement.

That seemed to be addressed by the fact that our Prime Minister was able to reach an agreement with the Taoiseach on regulatory arrangements—the precise details would have to await the ultimate free trade deal—in order to obviate any necessity for a closed border. I hope that the reason the DUP vetoed it was not that it was tempted by the idea of going back to border posts and controls; I do not think that the DUP is any more in favour of that than any other Member who has spoken in this House. I hope that it was sheer incompetence that the DUP had not been shown the text or kept party to the negotiations.

I will go no further than this, but I find it absolutely astonishing, if we are moving on to this issue, that the closest possible relationship would not be maintained with the devolved Government in Belfast. Had I been a member of the Government in Belfast—a highly unlikely prospect—I would have been rather indignant at not being closely consulted, and I certainly would have wanted to know what the terms were likely to be rather well in advance. If that is the explanation—the expression of the hon. Member for East Londonderry (Mr Campbell) gives the impression that might have quite a lot to do with it—I hope that the devolved Government will share with us all the importance of getting this right and maintaining the Belfast agreement and will therefore lift this veto, reach some understandings and let it proceed.

That brings me to the amendments. I think the negotiations are likely to succeed in the end. I take an optimistic view because, on both sides of the channel, an overwhelming number of politicians, diplomats and officials are perfectly sensible people. On the whole, the ones involved in the negotiations have a better understanding of what we are talking about than the average citizen. They all realise that the public interest in every one of the 28 countries is in reaching a sensible agreement that minimises the damage and maintains, as far as possible, the freedoms of trade and movement.

--- Later in debate ---

[Mr Kenneth Clarke]

My hon. Friend keeps reiterating, with ever greater passion, the Government’s 110% commitment to the Belfast agreement. The reason for not putting it into the Bill is, with great respect, an extremely obscure drafting point, which I have tried to follow but cannot quite, because the provision that he refers to is extremely narrow indeed. It applies to possibilities that may arise after withdrawal from Europe—minor consequences. If there is anything wrong with the drafting, the Government can correct that on Report and they will probably not meet any passionate resistance from anyone in the House. In view of what the Minister said, the Government should show their commitment by accepting the new clause, and all this other footnote stuff can be sorted out at a later stage.

[Mr Walker]

I have great respect for my right hon. and learned Friend. On the point that he makes, the Government have absolutely accepted their commitments to the Belfast agreement. It is already a matter of international law. We are committed to that agreement. It is annexed to the British-Irish treaty, and we will continue to respect it in the way in which we approach this whole issue. We will work across the House, as we always have, constructively to ensure that the approach that we take is absolutely in line with the Belfast agreement, and we have done that throughout this process.

--- Later in debate ---

[Ian Paisley]

The hon. Gentleman says he has pointed out a legal reality, but the Labour party’s position on all of these matters is now no clearer than mud. Are we ultimately going to honour the will of the British people, enact this Bill, and withdraw from the EU? That is the bottom line. All these amendments are slowly but surely being exposed as having a different motivation. It was said earlier that there was a need to put the Brexit Members of Parliament on the spot and get them to vote for the consequences of Brexit. I will happily walk through the Division Lobby tonight to vote down new clause 17, for the very reason that I wish to put into practice and into law the will of the British people. They voted to leave, and we must bring it on and allow them to leave. Confusion has been allowed to reign as a result of the proposed amendments.

[Mr Kenneth Clarke]

I have never heard anybody put this argument in quite this extreme way. The British public answered the simple question of whether they wished to leave the European Union, but that question carried within it hundreds of highly complicated sub-questions which now have to be addressed after the negotiations. Is the hon. Gentleman saying that we should not, for example, discuss the basis on which we make a contribution towards accrued pension liabilities during our membership of the European Union because our masters, the people, have decided that we must pay those accrued pension liabilities and are indifferent to how much that will cost? That is an absurd misuse of the one simple question about whether or not to stay in the EU.

[Ian Paisley]

The right hon. and learned Gentleman, the Father of the House, has been a Member of Parliament for many years, and he will know that it is only very occasionally that the British people are asked their view by way of a referendum. Indeed, that has probably happened on only two occasions in his lifetime. On both of those occasions, the will of the British people was enacted by this place. Yes, of course there is debate. Who says that there should not be reasoned debate? [Hon. Members: “You.”] I do not say that, and I have not said that. Don’t be silly—[Interruption.] I am not saying it now. I am saying what the raison d’être behind the debate is, which is very different. Let us have the debate. I have actually used the words “bring it on”. If the Father of the House is suggesting that this occasion is just the same as every other occasion, I have to tell him, with due respect, that he is wrong. The will of the people has been expressed through a referendum. That is what makes this different.

European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

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

[Mr Baker]

These are matters for my right hon. Friend the Home Secretary and the Bills for which her Department is responsible. I hope the hon. Lady will forgive me and understand that it is with the Home Office that these matters need to be taken forward. This Bill is about how we leave the European Union with certainty, continuity and control in our statute book.

Amendments 15 and 16 are on the power to deal with deficiency—

[Mr Kenneth Clarke]

rose—

[Mr Baker]

I just say to my right hon. and learned Friend that I am 51 minutes into my speech and I am only around halfway through it. I would prefer to press forwards.

[Mr Clarke]

I understand my hon. Friend’s difficulties. He is responding to new clauses and amendments on an amazingly wide range of topics that keep going into other departmental areas, but it is quite useless if the winding-up speech consists of the Minister saying in a series of statements that he is in no position to answer the questions. If there is an important Home Office question, as there is with the issue of child refugees, it would be normal for a Home Office Minister to be in attendance and to rise in some suitable way to answer the debate. My hon. Friend is reading very competently his carefully prepared brief, which concludes at every stage by saying, “I hope that the amendment will be withdrawn.”

[Mr Baker]

I am grateful for my right hon. and learned Friend’s intervention, which has disappointed me neither in the sympathy that he expressed for my predicament nor in the sting in its tail. The Bill is the responsibility of the Department for Exiting the European Union, with the collaboration of other Ministers who are assisting in its passage. He is absolutely right that it covers a wide range of issues. I believe that I have given an answer on the particular point raised.

On two points of technical legal detail, I have asked for my memory to be jogged in the course of the debate, and I very much hope that I will be able to give an answer before I sit down. My right hon. and learned Friend will understand that I am not, like him, a learned Member of this House; I am a humble aerospace and software engineer. It is necessary for me to go through the clauses of the Bill that relate to parliamentary scrutiny and do not require technical legal expertise.

European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

Committee: 7th sitting: House of Commons
Wednesday 13th December 2017 Commons Chamber

[Yvette Cooper]

The right hon. and learned Gentleman is exactly right, and I will defer to him to set out his amendment and describe its impact. The idea that we should make a confidence issue out of every single adjustment to the Brexit process or to the withdrawal Bill is just nonsense.

If we have a Bill before Parliament, it has to be possible for Members of Parliament to table amendments to it and to vote on them. In a hung Parliament, that is even more the case. The Prime Minister asked for a mandate to do all this her own way, but she did not get it. She got a hung Parliament. That puts even more responsibility on us all to work together to find something that will build consensus across Parliament and across the country. In a hung Parliament, the Government sometimes lose votes because Parliament has to do its job to build the right kind of consensus and to get the right kind of outcome.

In the end, this is all about Parliament and democracy. Each and every one of us has a responsibility to our constituents not to hand over, share or give up our authority and our sovereignty, but to exercise our responsibility to get the very best deal. For centuries, Members of Parliament have fought tooth and nail to defend democracy and the powers of Parliament against Executive power. We cannot be the generation that just rips that up and hands over all the power to the Executive. We have a responsibility—now more than ever, given the gravity of the decisions before us—to use that power responsibly and to try to build consensus. To be honest, if the Government cannot build a broader consensus in Parliament, there is no chance of their building a broader consensus in the country, and if they cannot do that, we will end up with everybody rowing over the Brexit deal for a generation to come. For the sake of all of us who want to get back to discussing our schools, our hospitals and all the other issues that face our Parliament, I urge Ministers to accept either amendment 7 or new clause 3, and to start trying to build a consensus that can get us a sustainable Brexit deal.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I rise to support new clause 3 and amendment 7. As mine is the second name attached to amendment 7, which was tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who is mainly responsible for it, I also incline to the view that it is slightly the better drafted, but I will support either proposal if one or both are put to the vote.

I might well succeed in being reasonably brief, because I agreed with every word of the speech made by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) and I will not repeat what she said. A welcome note of cross-party consensus exists across a large part of the House, and it represents the cross-party consensus that is in favour of what is lazily called a soft Brexit and of having the best possible close relationship with the European Union after we leave.

The main issue in this debate seems to turn on what we mean by a “meaningful vote”, which relates to our discussion on the role of parliamentary sovereignty in a situation of this kind. I accept that today the Prime Minister—not for the first time—promised us a meaningful vote, but she later went on to qualify that slightly by talking about the need for statutory instruments to be brought forward during the period of the Bill, within the extraordinary powers that the Bill gives Ministers to enact, by regulation, even changes to British statute law. We have to be clear what a meaningful vote is, and the key is the timing. It is quite obvious that if the British Government are to be responsible to the British Parliament, the vote must take place before the Government have committed themselves to the terms of the treaty-like agreement that is entered into with the other member states. Any other vote will not be meaningful.

[Mr David Lammy (Tottenham) (Lab)]

rose—

[Mr Rees-Mogg]

rose—

[Mr Clarke]

I will give way in just a second, but let me finish this point.

That means that a meaningful vote cannot take place until a detailed agreement has been arrived at about certainly the precise nature of our trading and economic relationships with the single market of the European Union, and actually quite a lot else besides, because we still have to embark on the security discussions, the policing discussions and the discussions about which agencies we are going to remain in and which agency rules we are going to comply with. This is, we all agree, a huge and complex agreement, and it is going to determine this country’s relationships with the rest of the continent of Europe and the wider world for generations to come. Can that happen before March 2019?

We face the genuine difficulty that it is quite obvious that we will not be remotely near to reaching that agreement by March 2019, and we have to think through what that actually means. The negotiators have been very optimistic in saying that they will have first a transition deal and then a deal by 2019. I am sure that they will try, but they have not a chance. I think that what they are actually saying—certainly the continental negotiators—is that they might be able to have some heads of agreement on the eventual destination by March 2019, which we can all carefully consider. They will certainly have to agree a transition deal of at least two years within which the rest of the process will have to be completed.

I agree with the right hon. Member for Normanton, Pontefract and Castleford that everybody wants things to be speedy, because one of things that this country is suffering from most at the moment is the appalling uncertainty caused by the fact that we have taken a ridiculous length of time to reach three obvious conclusions on the three preliminary points that had to be determined as the basis of our withdrawal. At the moment, however, we do not quite know what the British Government are going to be seeking as their end goal in the negotiations that are about to start, because the British Government, within the Cabinet, have not yet been able to agree exactly what they are seeking.

If I may say this to my desperately paranoid Eurosceptic friends, it is not as if I am somehow trying in some surreptitious remainer way to put a spoke in the wheels of the fast progress of the United Kingdom towards our destination. The Government do not know what leave means. Nobody discussed what leave meant when we were having the referendum. Our overriding duty is not just to our political allegiances and so on; it is to provide this country with a good, responsible Government who face up to the problems of the real world and, accountable to Parliament, can produce the best new order that they can for the benefit of future generations.

[Mr Lammy]

The right hon. and learned Gentleman is demonstrating why he is Father of the House, so I hesitate to interrupt him, but on his point about having a meaningful vote prior to the Prime Minister of the day making the deal, does he agree, with his wealth of experience, that if we are to keep the country together, it is important that that Prime Minister has in the back of her head when trying to pull off that agreement, “I have to get this through my Parliament”?

[Mr Clarke]

The right hon. Gentleman makes one of the points that I was going to make. The most important effect of passing either new clause 3 or amendment 7 —there is actually more to this than a meaningful vote, if we consider the various stages—and achieving proper parliamentary accountability is that that would affect the tenor of the negotiations. Like every other Head of Government in the European Union, our Prime Minister would need to have at the back of her mind, “Can I deliver to the House of Commons what I am thinking of conceding?” Every other political leader in Europe will do that, because they will have to sell what they sign up to to their own Parliaments. If we do not have a meaningful vote, we will be the only member state whose negotiators are not under a legally or constitutionally binding commitment to sell the deal, because they will be able to make the deal and then come back to the House of Commons and the House of Lords and say, “This is it. What do you think of it?”

[Chuka Umunna]

The Father of the House is absolutely right that the Bill essentially gives the Government a blank cheque. On timing, the only commitment I can see in today’s written ministerial statement from the Secretary of State for Exiting the European Union about what will happen before we leave the EU is that the proposed withdrawal agreement and implementation Bill will be introduced before we leave. That is clearly unacceptable. Any piece of legislation seeking to do what that Bill has in mind must be passed before we leave the European Union, even if that means extending the process to maintain parliamentary sovereignty.

[Mr Clarke]

I agree entirely, and my next point is linked to that. The nature of the parliamentary approval cannot just be a motion; it must have statutory basis, which is the route that the Prime Minister has followed. There are various reasons for that, but the obvious one is the extremely uncertain status of resolutions of this House under current parliamentary practice. The Brexit Secretary is only the latest example of someone saying that anything that is not statutory is not legally enforceable, but just a “statement of intent”. The House of Commons keeps passing all kinds of motions with which I ferociously disagree, but they get carried by this House and make all kinds of criticisms of what the Government are doing. We have moved into a new era in which the Government are allowed to keep saying, “Parliament may pass motions, but they are worthless expressions of opinion. They are not part of our being accountable to the elected body of the House.”

[Sir Oliver Heald]

Of course the original plan was not to have a Bill, but to rely on statutory instruments under clause 9 to effect changes of constitutional significance. It was then made clear recently—I think on 17 November—that we will in fact have a Bill. Does my right hon. and learned Friend agree that to try to make such changes by secondary legislation just is not on? It is very unlikely that the courts would say that such constitutionally significant changes could be made under secondary legislation.

[Mr Clarke]

Again, I agree entirely, and that takes me back to something that has occurred all the way through this process. I am obviously standing here in disagreement with the Government, of whom I am critical in many respects, due to both the policy and how it has been conducted, but I have had some sympathy with them since the election, because they are trying to carry through this enormous, controversial and historic measure when they do not have a parliamentary majority, except when they can persuade the Democratic Unionist party to turn up and support them.

The process started with the extraordinary suggestion that the royal prerogative would be invoked, that treaty making was not going to involve Parliament at all, and that leaving did not require parliamentary consent. Rather astonishingly, that matter had to be taken to court, and it came to a fairly predictable conclusion. The next idea—I will not repeat what my right hon. and learned Friend the Member for North East Hertfordshire (Sir Oliver Heald) said—was that everything would be done by statutory instruments under broad powers. However, we are slowly getting to what I would have thought is the fundamental minimum that a real parliamentary democracy should be demanding: the country will not be able to enter into a binding treaty commitment until the details have received full parliamentary approval. How we get there is no doubt a matter of some difficulty, but it must be addressed.

[Mr Baron]

rose—

--- Later in debate ---

[Mr Clarke]

I will give way in a second.

The debates on this Bill have typified this Government’s approach to parliamentary scrutiny. I understand their difficulties when they have no majority and their Members include people like me and those who are trying to interrupt me—we are allegedly on the same side of the House—who fundamentally disagree with each other.

I have attended every day of our debates on this Bill. We spent yesterday discussing parliamentary scrutiny, but our proceedings have not been a great advertisement for such scrutiny. The Government’s reaction to each and every proposal is to say how carefully they have listened, how important it is and how they will go away and think about it, but then to explain why the drafting of the Bill will not currently be amended. I am sure that I have done that myself when taking legislation through the House, and it is always a joy to find out that one can get away with it for quite a long time. After a bit, one gets used to the fact that one can get away with it as long as one is suitably polite and flattering to those who are proposing amendments. The actual reasons that have been given for rejecting proposals have been all about administrative convenience—that they are obscure drafting amendments. I congratulate the parliamentary draftsmen on creating arguments of such extraordinary minutiae to support the amazing aspirations of civil servants who see a mountain of work before them and hope that most of it can proceed with the minimum of political scrutiny.



What we have not heard, and I will have to hear it today, is the political argument against Parliament having a meaningful say. What is the constitutional argument that says Parliament should be denied a statute before the Government enter into all these commitments? I have not so far heard a word expressed to try to explain that to me. That should be the key, dominant thought in the Government’s mind as they negotiate. Of course they will have to think about what will satisfy the Foreign Secretary and the Environment Secretary, and of course they will have to get something for which the Daily Mail, The Daily Telegraph and The Sun will criticise them least, and so on, but I do not think Parliament is an afterthought to those vital considerations; I think it is the parliamentary process that matters. The rest is a problem for some press officer.

[Mr Marcus Fysh (Yeovil) (Con)]

My right hon. and learned Friend said earlier that other Parliaments across Europe will have a say and we will not, but I posit that that is not true. This is about the withdrawal agreement, which will be agreed under qualified majority voting by the European Council, so it is not true that every Parliament across Europe will get a say on this subject.

[Mr Clarke]

Qualified majority voting is an excellent innovation achieved by the Thatcher Government when we were explaining to the other Europeans how they could have an effective free trade agreement. The number of times that British Governments have ever been outvoted under qualified majority voting is tiny. Qualified majority voting could be extremely important in these negotiations, because otherwise a Government of some small state—I will not name any, because they are all friendly—could suddenly decide they have some great lobby group at home that does not want to concede to the British something that the British Government have set out to achieve. The whole thing could then be held up.

The agreement will have to go to all the Parliaments. The Parliament of Wallonia will no doubt be allowed to have a say, which, if this Government have their way, this Parliament will not. The Parliament of Wallonia will be allowed to have a say, and I am not sure whether the Scottish and Welsh Parliaments will—that remains to be seen. European Governments will all have to take a view and defend that view to their own Parliament in each and every case.

[Mr Fysh]

On a point of order, Dame Rosie. I seek your guidance on whether this is misleading the Committee. It is simply untrue to say that each Parliament will have a vote.

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

It is disorderly to say that an hon. Member is misleading the Committee. I suggest that the hon. Member for Yeovil (Mr Fysh) settles down and allows the Father of the House to continue.

[Mr Kenneth Clarke]

Qualified majority voting means that each Government cast a vote and, if we get a qualified majority, that is the effective decision. Each Minister who takes part in that vote is, of course, accountable to their own Parliament, to which they go home and defend their vote. If it is on a difficult, controversial subject, any sensible Minister—all those Ministers—will take the view of their Parliament before going to cast their vote on behalf of their country. It is utterly ludicrous to say that this Parliament should be denied a vote and not allowed a role because qualified majority voting somehow replaces it. My hon. Friend the Member for Yeovil (Mr Fysh) says that what I say is untrue and, with great respect, I would say that his argument is an absurdity.

[Mr Baron]

I respect my right hon. and learned Friend’s consistency on this issue. He is on public record as having once said that he looks forward to the day when the Westminster Parliament will be nothing more than a council chamber of the European Parliament.

When my right hon. and learned Friend says that leavers did not know what they were voting for, he risks sounding very condescending, because we knew exactly what we were voting for: to reclaim our laws and to reclaim our finances. Although one accepts his point that one cannot predict the future in any detail, that is as much true for the EU as it is for this country.

[Mr Clarke]

My hon. Friend is not the sort who usually repeats the more scurrilous right-wing rubbish that fanatical Eurosceptics come up with about what I have and have not said in the past. I am not, and never have been, a federalist. I would not pursue a united states of Europe. It is social media stuff to start throwing in that kind of thing when we are in the middle of a serious parliamentary debate.

When the public were invited to vote in a referendum, they were invited to take back control, which was not defined. It was mainly about the borders and about the 70 million Turks and all the rest of it. They were told in the campaign that our trade with the European Union would not be affected in any way. Indeed, that is still being held out as a prospect by the Brexit Secretary and others, who seem to believe that they will get unfettered trade without any of the obligations.

The discussions we have had in Committee on previous days about the details of what “single market” and “customs union” mean, and so on, would have been a mystery to anybody whose knowledge of the subject is confined to the arguments reported in the national media on both sides. Those arguments are largely rubbish, and it is now for this House to turn to the real world and decide in detail what we will do.

[Anna Soubry]

The Father of the House is right that there will be a qualified majority vote on the withdrawal agreement. That agreement will not go to each individual Parliament in the same way that the actual trade agreement will. Does he share the concerns of many people, as that now dawns upon them? They had thought that this place would have some sort of say on the trade deal—the actual final relationship that we will have with the European Union—but, actually, we will have no such say because the deal will not be finalised until after we have left the European Union. Does he agree that that is now concerning many citizens across the length and breadth of this land who did indeed apparently vote to take back control?

[Mr Clarke]

I agree entirely. My right hon. Friend eloquently underlines the point that the right hon. Member for Normanton, Pontefract and Castleford raised and that I am trying to make. We must have a meaningful vote before the final trade deal—indeed, the whole deal—is agreed by the Government.

Let me try to lower the temperature by going back, as I rarely do, to reminisce for a moment.

[Sir William Cash]

My right hon. and learned Friend and, I believe, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), both concede that amendment 7, at this crucial moment, is defective and would not work for a variety of reasons. I have indulged what my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) has said about scrutiny and responsibility and the rest, but does he agree that it is not appropriate to press such an amendment to a vote when, in fact, it would make a nonsense of itself? It would be a meaningless vote about a meaningful vote.

[Mr Clarke]

No doubt my hon. Friend will catch your eye, Dame Rosie, when he will be able to explain why he thinks the amendment is technically defective, but this is the kind of argument we have had against every proposition that has been put forward throughout the passage of the Bill. I heard the Prime Minister personally promise us a meaningful vote and then go on to explain how the Bill would have to be used to make statutory instruments; so we are talking about the very wide powers in the Bill being used probably even before the end of the article 50 period—I think that is what she said. This amendment would prevent that; it would prevent those powers from being used until a statute has been passed by this House confirming its approval and also giving legal effect to whatever final agreement has been arrived at. I bow to my hon. Friend’s legal skill—he was indeed in parliamentary law when he practised—but I cannot for the life of me see why this is defective.

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[Sir Oliver Letwin]

I am grateful to my hon. Friend for that point, which I will come back to in a moment.

In turning to amendment 7, let me start by saying something on a personal level. I have been in the House for exactly the same length of time as my right hon. and learned Friend the Member for Beaconsfield—I think we entered it on the same day, as it happens—and I have served with him in a number of capacities both in opposition and in government, and I have the highest personal regard for him. I have invariably found that when he says something he means it, and I have never found him to be one of those who plays games. Moreover, although I profoundly disagree with him about his amendment, for reasons that I will put forward, I think his motives in producing it are totally honourable and straightforward, and deserve the respect of everyone in the House of whatever persuasion they may be.

There is a reason, however, why I think the amendment is a very bad one. I want to expose an extremely important point about it, which began to come out in the remarks of my right hon. and learned Friend and others. It would not have the effect that the right hon. Member for Leeds Central or the Opposition spokesman seek: it would not actually make it impossible to continue the article 50 process and leave without an agreement. There may be some Members on either side of the House who are tempted to vote for amendment 7 on the basis that it would have such an effect, but it plainly would not.

What amendment 7 would prevent is the issuing of orders under this Bill until another Bill that the Government intend to bring forward has been enacted. If it was agreed and we had not been able to pass the withdrawal and implementation Bill, it might in certain circumstances create the inconvenience of our not being able to issue orders to implement a withdrawal agreement to which the Government had signed up. However, not being able to implement the provisions of an agreement in domestic law does not prevent us from signing and ratifying the agreement and does not prevent us from leaving the European Union. Anybody on either side of the House who imagines that amendment 7 would have the effect of creating what the right hon. Member for Leeds Central called a meaningful vote is under a severe logical illusion. It would do no such thing. The Opposition have tabled, I think, a new clause that would have the effect of giving that power to Parliament, but amendment 7 would not do it.

[Mr Kenneth Clarke]

My right hon. Friend perfectly clearly sets out that a serious constitutional impasse is possible if this House does not pass an agreement, because article 50, even if it is delayed a bit, will eventually lead to our leaving. That assumes—he does not do so, but some of the more hard-line Eurosceptics do—that there are people in the EU who want no deal. I have never met any such person, because actually they would suffer from having no agreements on flights, security, policing and all the rest of it. As has been said, we are inevitably dealing with hypotheses and nobody, whatever their views, really has the first idea where we will be in 18 months’ time, but his suggestion is a most unlikely consequence. If this House rejected a deal, the British Government would go back and say, “We’ve got to have a better one.” I personally would guess that the other 27 nation states would reconsider and see whether they did not have to give a better one in order to the get the deal that they had already tried to sign up to.

[Sir Oliver Letwin]

I think that is a very possible eventuality, which takes us back to our earlier discussion. I certainly agree that if, upon a resolution, the House refused to accept the withdrawal agreement suggested by the Government and agreed by the EU, it is very likely that the Government would go back and try to renegotiate it, and it is very possible that they would succeed in doing so. I do not deny any of that. My point is that amendment 7 would not force that result, because all it would do is, under certain circumstances, stop certain kinds of orders being issued under this Bill.

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[Mr Vaizey]

I can barely stand up again, because I am slightly overwhelmed by the outbreak of consensus.

I shall end this section of the speech with some unashamed flattery, as I look at the triumvirate of titans on the Treasury Front Bench: three Ministers for whom I have the utmost admiration, including my constituency neighbour, the Solicitor General, my hon. and learned Friend the Member for South Swindon (Robert Buckland). They have heard this debate, and they are thoughtful and effective Ministers and I am sure they will have taken the mood at least from a certain part of this House about the brilliant opportunity for a solution to this Gordian knot.

[Mr Kenneth Clarke]

Will my right hon. Friend give way?

[Mr Vaizey]

My cup runneth over.

[Mr Clarke]

Before my right hon. Friend tries to urge us all into withdrawing these amendments and waiting for the Government to bring forward their own amendments on Report, let me say that we have been trying to do that through 70 hours of Committee stage. It is no good regarding the Committee stage of this House as an interesting opportunity for Members of Parliament to talk to each other and for Ministers to get up and say they will think about it; we have two days for Report and Third Reading, and the plain aim of the Government is to just enjoy going through this slightly tumultuous and interesting debate and sail on to the House of Lords with the Bill largely intact as it stands. That has been their obvious tactic from a very early stage.

[Mr Vaizey]

I bow to my right hon. and learned Friend’s wisdom and experience on that point. I am a consensus merchant and simply thought there might be a way forward, but I totally understand that votes might have to be exercised tonight in order to stiffen the Government’s backbone to provide a solution. But nevertheless it has always been the case proposed by my right hon. and learned Friend the Member for Beaconsfield that the Government will have an opportunity on Report potentially to alter his amendment.

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[Dominic Raab]

Thank you, Mrs Laing. Many of the amendments that have been tabled have focused on the exact nature of the regulations that will be made under the power in clause 9. The exact use of the power will, of course, depend on the content of the withdrawal agreement that we reach with the EU. That agreement will be debated and voted on by this Parliament. The Government have made a clear commitment on that, and it should not be prejudiced or pre-empted now. There has been a lot of talk about a meaningful vote in this House, and the hon. Member for Streatham (Chuka Umunna) has raised the matter again. I will come on to that, and to the key issue of timing. May I say to hon. Members gently, and with the greatest respect, that such a vote would be pretty meaningless in any event if we were not ready to implement on time the deal that we want to do with the EU?

[Mr Kenneth Clarke]

I thought a moment ago that the Minister was rejecting the idea of a meaningful vote, but I am delighted to hear that he is getting on to it. Does he accept that it is perfectly likely that as the negotiations come to an end, the Government will want to enter into a deal, but they will have given in to pressure from the right wing of the Cabinet and Back-Bench Members of the party and rejected various things on offer from other EU members? That is a far more likely scenario than no deal being the other EU members’ preferred option. In such a case, it would be absolutely essential that the first thing we had was a parliamentary decision on a meaningful vote. We could then legislate, once that particular British issue had been resolved where it should be resolved—in Parliament.

[Dominic Raab]

From my experience, I must say that I think that is a rather rose-tinted perspective on EU negotiations. I should also say that the same arguments were made about my right hon. Friend the Prime Minister going into the phase 1 negotiations, yet we are on the cusp of formal ratification of the joint report dealing with the first phase issues. The Prime Minister has made some difficult compromises and shown flexibility precisely to get the deal that I think my right hon. and learned Friend welcomes—I also welcome it—even though we were on different sides during the referendum campaign.

I turn to new clauses 3 and 75, which attempt to remove clause 9 wholesale from the Bill. They would undermine one of the important strategic objectives of the Bill, which is to provide the legal means to implement the withdrawal agreement thoroughly in domestic law. I hope I have explained the important, albeit residual, role that clause 9 stands to play in light of the separate primary legislation covering the withdrawal agreement. To remove clause 9 would increase the legal uncertainty, and I hope that the new clauses will not be pressed.

I want to spend a little bit of time focusing on amendments 7, 47 and 355 and new clause 68, but particularly on amendment 7 in the name of my right hon. and learned Friend the Member for Beaconsfield. May I say at the outset that I do not think he has any ulterior motive in tabling the amendment? I have had a number of constructive conversations with him, and I look forward to more in the future. By dint of that, I hope he accepts that I have followed through on every assurance I have given him, and that I have not failed to live up to the undertakings I have given him. It is in that spirit that we on both sides of the debate need to proceed as the Bill goes through the House.

Amendments 7 and 355 call for a separate statute to be enacted approving the withdrawal agreement before the powers in clause 9 can be used. There are a number of problems with doing so. My right hon. Friend the Member for West Dorset (Sir Oliver Letwin) mentioned the constitutional issue, and I agree with him about that. From a practical point of view, however, the crucial problem is the effect that amendment 7 would have in significantly curtailing the timely advantage that we will gain from clause 9. One of the key benefits of the clause is the ability to start to use it reasonably swiftly after the withdrawal agreement has been reached.

To add an unnecessary Bill to the parliamentary agenda—in addition to Parliament’s meaningful vote, as set out in today’s written ministerial statement, and on top of the new withdrawal agreement and implementation Bill—would be restrictive enough. However, to make the first use of the powers in clause 9 wait until the additional legislation has fully passed through Parliament would unduly compress the time we will have to prepare the legislative groundwork, and would risk greater uncertainty. With the greatest respect in the world, I am afraid that is why the amendment tabled by my right hon. and learned Friend the Member for Beaconsfield is defective.

--- Later in debate ---

[Mr Kenneth Clarke]

This debate started with an extremely eloquent and passionate contribution by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) on the meaningful vote that this House has been promised, on the timing of that vote, and on how we can ensure that the Government do not proceed with the detail of the withdrawal agreement, and probably the ultimate trade agreement, without the consent of this House. My hon. Friend the Minister has spent an extremely valuable hour taking us through the foothills of the drafting of the Bill and the administrative procedures that might be necessary before we leave. I asked him for a political argument if he wants to resist the idea, put forward by many of my right hon. and hon. Friends, that this House demands a meaningful vote before the Government actually start enacting the outcome of any agreement they have made, so does he have a little time to address that? Is there anything left in his notes that covers that?

[Dominic Raab]

I welcome the chance to reiterate what has already been said and what is already set out in the written ministerial statement: we will guarantee that there will be a meaningful vote in this House, and that none of statutory instruments introduced under clause 9 will enter into force until we have had that meaningful vote. That squarely addresses the substantive issue that my right hon. and learned Friend is getting at. He criticises me for dealing with all the other amendments, but it is only fair in the proper course of parliamentary proceedings to ensure that all amendments from all hon. Members are fairly addressed.

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[Mr Jenkin]

I will come back to the way Parliament interacts with the process, but it would be really rather foolish for this House and the Government to premise all their plans on the basis that that request would be acceded to, because it would require unanimity. I have not heard a single public statement from the EU or a European diplomat that suggested for a moment that they would countenance extending the deadline. Of course, why would they? The deadline written into article 50 is to their advantage. I expect that the hon. Gentleman would have voted for the Lisbon treaty, which contains article 50, but I did not vote for it. I have always thought that article 50 was a snare and a trap. It sets a deadline, against which we are now negotiating, and that is the only prudent way to negotiate.

I loathe secondary legislation that amends primary legislation expressed in Acts of Parliament. It is an odious practice that has entered the legislative process in this House—this is by no means the first Bill that contains so-called Henry VIII clauses—but I can justify such powers as a basis for reversing the effects of our membership of the EU. It may seem to be an irony, but it is by the process of secondary legislation that we have been gradually integrated into the EU.

We have seen order after order coming under section 2(2) of the European Communities Act 1972. More often than not, it was a “take it or take it” option: we did not even have a “take it or leave it” option once it was expressed in EU law. The advantages of allowing secondary legislation under this Bill are that, first, the legislation will ultimately be answerable to the House; secondly, the powers are temporary; thirdly, they can be subject to revision or annulment at any future time; and finally, they are underpinned by the democratic authority of a referendum.

On a “take it or leave it” vote, I do not remember debating a single new treaty that was offered to the House on the basis that we could amend the treaty by passing an Act of Parliament. Whether to accept the Lisbon treaty was a “take it or leave it” decision. We were told that if we did not accept the treaty, it would create such chaos that it would force us to leave the EU.

I do not doubt the bona fides of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and others on the Government Benches, but my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) exposed very ably the fact that there are people in the House who want to use amendment 7 as a means to extend the negotiation. My right hon. and learned Friend the Member for Rushcliffe was absolutely explicit on that point. I appreciate that the shadow Minister, the hon. Member for Greenwich and Woolwich (Matthew Pennycook), did his best to avoid answering the question, but he made it clear that he thinks the deadline will have to be extended.

[Mr Kenneth Clarke]

I thought for a moment that my hon. Friend meant all that stuff about my challenging the result of the referendum.

[Mr Jenkin]

No, no, no.

[Mr Clarke]

I am sorry; I misheard my hon. Friend. I do not think for one moment that we will have completed any of these negotiations by March 2019, but I will wait to see. There are perfectly clear arrangements in article 50 for the time to be extended. I have met several other European politicians, including some of those involved in the negotiations, who rather expect that to happen.

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[Yvette Cooper]

This has been a thoughtful debate that has shown the strength of this House, but the thoughtfulness and strength of this House are exactly why the House needs to have a meaningful statutory vote on the withdrawal agreement before the extremely extensive powers in clause 9 are used. The Minister had an hour on his feet; we have had six hours of debate today and many months of debate beforehand, and he still has not come up with a manuscript amendment to clarify what he will do, nor have we had a commitment yet from the Government that the vote will in fact be a statutory one. The only reason that the Minister could give as to why there should not be a statutory vote on the withdrawal agreement was the timing, and yet there are so many examples of when this Parliament has used expedited procedures to get a statute in place just as fast as any resolution.

[Mr Kenneth Clarke]

My understanding is that the Minister has just said that the Government will use clause 9, and will start legislating statutory instruments, long before the due day; it is just, having been legislated, they will not come into force until the due day. That is some kind of concession, but does the right hon. Lady agree that something better might be arrived at in the later stages of this Bill?

[Yvette Cooper]

I certainly think that something much better is needed, because the powers in clause 9 are unprecedented, and Parliament should not hand over such unprecedented powers to the Executive blindfold, without our knowing what the withdrawal agreement will be. There have been so many examples, whether it is the Jobseekers (Back to Work Schemes) Act 2013, the Police (Detention and Bail) Act 2011, the Loans to Ireland Act 2010, the Mental Health (Approval Functions) Act 2012, the Data Retention and Investigatory Powers Act 2014 or the Northern Ireland (Ministerial Appointments and Regional Rates) Act 2017, Act after Act that has been through an expedited process—they can be done within a week. We can do this if we need to. Timeliness is not a problem.

That is why we need a vote, and that is why Ministers should just stop arguing. They should either ditch clause 9 and agree to new clause 3, or agree to amendment 7.

In order to support the right hon. and learned Member for Beaconsfield (Mr Grieve), I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

Clause 9

Implementing the Withdrawal Agreement

Amendment proposed: 7, page 6, line 45, at end insert “, subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union.”—(Mr Grieve.)

To require the final deal with the EU to be approved by statute passed by Parliament.

Question put, That the amendment be made.

European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

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

[Mr Leslie]

Yes. That again gets to this question: are we accidentally bumbling our way through, where nobody has thought about doing an assessment, or, worse, is this work being done but then hidden, covered up and held back from Members of Parliament and from the public at large? I suspect that any serious analysis worth its salt will show that there are some damning consequences of exiting the single market and customs union, and I think that needs to be shared with the wider public.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

Does the hon. Gentleman agree that the Brexit Secretary was rather lucky when he appeared before the Select Committee, because having agreed to produce papers, he got out of it by sticking to a narrow definition of “impact assessment”? It was semantics that enabled him to get away with just producing the new documents, which he had hastily produced in the past few weeks, containing bland descriptions of where we are. As the originals are important documents, as these questions have been looked at and as we were told a summary had been sent to the Prime Minister, does the hon. Gentleman agree that the House’s motion meant that whatever documents the Government had that bore on the subject, they should have been produced? The Brexit Secretary should not have been allowed to get away with saying, “Strictly speaking, they’re not impact assessments.”

[Mr Leslie]

I do agree with that. We should not just skim over this question. These are some of the most profound decisions that Parliament will make for a generation and, if we are going to do our jobs correctly as Members of Parliament, having the right facts, getting the evidence, assembling the analysis, making sure we can weigh up the pros and cons of all these matters, and getting readily understandable, plain English explanatory statements of what is actually being proposed are prerequisites. They should be there to make us do our jobs properly.

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[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

I want to speak briefly on new clause 21 and amendment 348. I also want to make some points in response to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), because I agree with him on half of what he says and not on the other half. I will keep that stored up for the end to try to persuade him to stay; otherwise, I am sure that cups of tea may beckon for many.

I think that new clause 21, tabled by the hon. Member for Nottingham East (Mr Leslie), is the great confession that we have been waiting for from the pro-Europeans in this House. The new clause has been given the support of some of the most luminous pro-Europeans known to the nation: the right hon. Member for Tottenham (Mr Lammy), the right hon. Member for Exeter (Mr Bradshaw), and that great panjandrum of pro-Europeanism, the distinguished gentleman the leader of the Liberal Democrats, the right hon. Member for Twickenham (Sir Vince Cable). All have signed this new clause. It says what we Eurosceptics have been saying all along: that the European Union produces its law in a form of gobbledegook—stentorian, sesquipedalian sentences that nobody can ever understand—and that when it is brought into British law, it should therefore be brought in in a plain English translation. The title of the new clause is “Plain English summary”.

[Mr Kenneth Clarke]

I agree with my hon. Friend’s description, actually. Does he agree that a lot of these things are almost as bad as the drafting of the Finance Bills that the Government bring before the House of Commons year after year?

--- Later in debate ---

The Prime Minister said in her Florence speech that she wants market access to continue on the terms existing prior to exit day; that existing structures need to be maintained; that we need to continue with security co-operation; that we need to agree any new processes to implement change and to have enough time to establish a new immigration system; and that we will honour our financial commitments. All those things are quite widely shared desires for the transition period, but we cannot simply rely only on a verbal commitment by Ministers or the Prime Minister. Given how significant this is, it is important that we enshrine in the Bill those objectives for the negotiating process. I commend the Father of the House for that.

[Mr Kenneth Clarke]

Does the hon. Gentleman agree that when he and I tabled new clause 54, we did so consciously trying to replicate Government policy as stated in the Florence speech? If the Minister would fairly promptly acknowledge and accept that, we should be able to save some time for the other important matters to be discussed in relation to this group.

[Mr Leslie]

That is an excellent suggestion. We could almost add new clause 54 to the copy-and-paste process, given that it is based on the Prime Minister’s own words. Obviously, I personally would like to go further, but the right hon. and learned Gentleman and I tabled the new clause in the spirit of compromise.

New clause 48 serves to highlight the important but often overlooked question of mutual recognition agreements. MRAs are another series of international obligations between countries. The UK has obtained rights for notified bodies to undertake conformity assessments to make sure that standards across the EU are complied with and that UK firms can certify assessments of conformity across that market of 500 million people by virtue of the process that they undertake in the UK. If we lose that MRA process, it could cause immense disruption to many businesses and sectors in the UK.

--- Later in debate ---

[Mr Grieve]

Parliament should certainly be debating these matters. Individual Members will decide whether they want to use the opportunity of this Committee stage for that purpose, but I want to confine myself strictly to the issues in front of us.

[Mr Kenneth Clarke]

My right hon. and learned Friend has been consistent all the way through our consideration of this Bill in agreeing with me on only the subjects of process, rather than substance, but I quite respect his view and always have the highest respect for his legal and political skills. Does he agree that if amendments actually went beyond the Bill, they would have been ruled to be beyond the scope of the Bill? It is entirely a voluntary decision on his part that he refuses to be drawn into the substance of Government policy, or the stance that the Government are taking on the eve of their starting the first serious negotiations on our future after we withdraw. It is a pity that he has made this self-sacrificing concession.

[Mr Grieve]

I thank my right hon. and learned Friend. Yes, it is a self-denying ordinance, but it was taken for what I think is a good reason, and partly because I did not wish to inflame the debate into something more general. However, despite my best endeavours and making speeches of what I thought was studied moderation, I seem to have been singularly unsuccessful, but that is merely a reflection of the fevered atmosphere in which this Committee meets.

I have to accept that I did raise the temperature a bit on amendment 381, because when it was first presented to the Committee, I expressed myself in respect of it in very strong terms indeed. I did so not because I was making some statement that I refused to contemplate the day of exit as being 29 March 2019 at 11 pm, but because I considered that to introduce that date into the Bill as a tablet of stone made absolutely no sense at all for the very reason that I sought to highlight in my intervention on my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). In actual fact, that amendment would make it harder to move the date forward if we had wish to do so at the conclusion of the negotiations, because that would require a statute. I know that statutes can be implemented quite quickly in this House, but that process would nevertheless take significantly longer than the alternative. I could not see why we were losing the sensible flexibility provided by the way in which the Bill was originally drafted.

Underlying all this, there appears to be a sort of neurosis abroad that the magical date might somehow not be reached or, if it were to be reached, might be moved back. I am afraid that I cannot fully understand that neurosis of my right hon. and hon. Friends, but it is there nevertheless. It may give them some comfort to have in the Bill this statement of the obvious. However, it is worth bearing in mind that we are leaving on 29 March 2019 as a result of the article 50 process, unless the time is extended under that process, and we are doing so as a matter of international law even if the European Communities Act 1972 were to survive for some mistaken reason, which would cause legal chaos and put us in a very bad place.

In order to try to reassure my right hon. and hon. Friends and to give out the message that this is a process Bill, I am prepared to go along with things now that my right hon. Friend the Member for West Dorset and my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) have so sensibly and creatively come up with a solution that appears to provide what my hon. Friends want and, at the same time, removes what I consider, perhaps in my lawyerly way, to be an undesirable incoherence in the legislation.

--- Later in debate ---

[Mr Baker]

The hon. Lady tempts me to dilate on the details of the implementation period, which are to be negotiated, but that is not my purpose today, because it is not the purpose of this Bill. The purpose of this Bill is to deliver a functioning statute book as we leave the European Union.

With that in mind, I turn to new clauses 10 and 54 on the transitional or implementation period. Both new clauses seek to impose conditions on what form the implementation period the Government are seeking will take. I am grateful to my right hon. and learned Friend the Member for Rushcliffe for his new clause, which attempts to write the Prime Minister’s vision for an implementation period into statute. That would be a novel constitutional change. Nevertheless, I welcome it in the sense that it is a ringing endorsement of Government policy. New clause 10, however, differs in some key regards from our vision.

The Government cannot accept these new clauses. The Prime Minister has set out a proposal that is now subject to negotiation. We are confident of reaching that agreement, but it would not be sensible for the Government to constrain themselves domestically in any way while those negotiations continue. We are making good progress, and it is in our mutual interests to conclude a good agreement that works for everyone. We do not want to put the legislative cart before the diplomatic horse.

[Mr Kenneth Clarke]

In referring to the transitional or the implementation period, my hon. Friend has at various times used phrases straight out of the Florence speech, and he has accepted that the new clause in my name is identical to stated Government policy on the subject. In what way does it restrain the Government’s position to put their own policy in the Bill and ask the Prime Minister, as the new clause does, to seek to attain that which she has declared to be her objective? That is not a genuine reason for rejecting it. He is rejecting it because agreeing with the Florence speech still upsets some of our more hard-line Eurosceptics both inside and outside the Government.

[Mr Baker]

I pick up my right hon. and learned Friend on a couple of things. First, he has used the word “identical”—I did not use it because I have not taken the time to go through his new clause absolutely word for word to check his work.

[Mr Baker]

Of course I have read it—it is here in my hand. I have read it but I have not gone back and done his homework for him to check and mark his work.

I make two points to my right hon. and learned Friend. First, as I said, it would be a constitutional innovation to begin putting statements of policy for negotiations in legislation. That is a good reason not to accept the new clause. The second point—[Interruption.] He says that it is not a good reason. He is the Father of the House and he has occupied many of the great offices of state. I would be interested to know when, in his long and distinguished career, he accepted that principle in legislation.

[Mr Kenneth Clarke]

I have never previously seen members of the Government debate a clear exposition of Government policy from the moment it is first announced. That gives rise to serious doubts about exactly what the Government are going to pursue in the transition deal, and these exceptional and unprecedented circumstances are doing harm to Britain’s position. I cannot see what harm would be done by giving the approval of the whole House to the Government’s stated objectives in the Bill. The fact that it has not been done before is not an argument against it; it answers a situation that has not happened before, either.

[Mr Baker]

My right hon. and learned Friend has caught himself in a contradiction. In this exchange, he has rested his argument on knowing exactly what the Government’s policy is, but in his last intervention he said that he did not know what it was.

My second point concerns subsection (2) of my right hon. and learned Friend’s new clause—[Interruption.] I would just like to make this point. The subsection states:

“No Minister of the Crown shall appoint exit day if the implementation and transition period set out in subsection (1) does not feature in the withdrawal arrangements between the UK and the European Union.”

That would cause a problem if the new clause were accepted and we reached the point at which the treaties no longer applied to the United Kingdom. We would have legal chaos—my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) talked about this earlier—if we had not commenced this Bill when the treaties ceased to apply. For both those reasons, we simply could not accept the new clause.

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[Kate Hoey]

No, thank you.

We are disproportionately penalised by the common external tariff, so we are actually suffering from being part of the customs union, although it might have helped at one stage. In the future, we have to look outwards and globally. Of course, we cannot sign free trade agreements until we leave. I personally want us to be able to sign and apply them during the implementation period. Let us not forget that everything that the EU says we must do during the implementation period is up for negotiation. We have to be very clear about this: during those two years, we want to be able to go ahead and do the things that we left the European Union to do. We should not completely align ourselves with every dot and comma of EU legislation.

What has upset me most in this debate—a lot of it has come from my own party, but it has also come from the Conservative party—is the negativity about this whole issue that somehow says that we are such an unimportant, small country that leaving the European Union will destroy us for the rest of our lives and destroy our country’s economic future. That is just so wrong.

I believe that we need more optimism. During its existence, the EU has shown real contempt for national Parliaments and their political activities. It has shown real contempt for electorates. It showed real contempt by forcing the Greek Prime Minister out of his job and through its enforcement of huge, huge cuts on Ireland. The EU does not tolerate the political independence and democratic integrity of the modern European nation, and we should know that in this Parliament. When we talk of parliamentary democracy, let us not forget just how many years we have lived without true parliamentary democracy in this country.

I believe that we should be optimistic. We should not see this as some people—perhaps even some members of the Government—seem to see it: as almost a burden that we have to get through as we say, “Yes, we are leaving, and it is a terrible pity, but we are going to make it work just about.” I want us to be optimistic and to be out there saying, “This can work. This can be great.” We are a great country, so let us get on with it. I am delighted that we have got through this Committee stage.

[Mr Kenneth Clarke]

It is a great pleasure to follow the hon. Member for Vauxhall (Kate Hoey), who represents the part of London in which I live when I am down here working in the House of Commons. We do not agree on this subject. During the debates on this Bill, she has voted with the Government almost as many times as I have voted against the Government. We are going neck and neck, which has been the position between us for the very many years we have both been in this House. We have diametrically different views.

I am afraid that I do not recognise the hon. Lady’s description of the European Union. In our 45 years of membership, it has helped us to become a more significant political force in the world in looking out for our interests, and it has been one of the fundamental bases of our giving ourselves a modern, successful economy, but this is not the time for a general debate.

I speak to new clause 54, which I tabled in co-operation with the hon. Member for Nottingham East (Mr Leslie). The new clause has been signed by a number of Members from both the major parties in this House. As I said in an earlier intervention, compared with the debates on other things, it should be quite easy to get this amendment passed because we drafted it to be entirely consistent with stated Government policy.

New clause 54 seeks to insert the policies set out in the Prime Minister’s Florence speech into the Bill, thereby including that part of what we have so far achieved by way of clear policy, so we can proceed further with the full approval of this House. I know perfectly well that the Minister who drew the short straw of answering today’s debates would immediately turn to some interesting, original and rather obscure arguments why this new clause should not be accepted, which has been the pattern throughout our eight days in Committee.

There have been hardly any concessions of principle. When issues of great moment have been debated, it has been unusual for a Minister to be allowed to engage with that principle. What happens is that a very long brief is delivered, some of it quite essential—this is not a criticism of either the Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Wycombe (Mr Baker), or other Ministers, and I do not envy the role in which they find themselves of holding the line on this Bill—in which a Minister goes into tremendous legalistic, administrative and even constitutional niceties without actually debating the subject.

We have already talked about amendment 7, which was passed against the Government. The amendment was all about whether this House should have a meaningful vote on the agreement before the Government bind themselves to it. The Minister on that occasion, the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton (Dominic Raab), never joined the debate about a meaningful vote. Indeed, today’s Minister would not when he was drawn into going back into where we are on amendment 7. All kinds of bizarre arguments were produced on why it was not suitable to put this in the Bill, and the House had to assert that it is not going to allow this Government to commit themselves to things that will be of huge importance to future generations, probably affecting our political and trading position in the world for many decades to come, without their first getting approval from this House of Commons for whatever it is they want to sign up to. New clause 54 is an attempt to minimise the risk of that happening again.

[Ian Paisley]

I recall the Minister asking the right hon. and learned Gentleman to list, after all his 47 years’ experience in this House, one occasion when he, a former Minister, would have put into the Bill what he is suggesting the Government should have put into the Bill. He could not claw anything back from his memory banks to that effect. Surely, what this Minister has said in the arguments he has put to the right hon. and learned Gentleman has completely dismantled new clause 54.

[Mr Clarke]

Parliament will have an opportunity to give its assent to the Government’s approach to the transition deal, which they are on the point of trying to negotiate over the next few weeks. I have never known a Government go into an international agreement and start negotiating something towards a conclusion without giving the House the opportunity to express its views and without subjecting themselves to the judgment of the House on the objectives they are declaring.

This transition deal—I think that this is agreed on all sides—is probably going to be agreed in the next month. We are about to go away for Christmas. Everybody is hoping we will have a clearer idea of the transition or implementation deal by the end of January. As things stand, I do not think this House has ever discussed this—it has never had a debate on the subject. No motion has been put before this House to approve what the Government are seeking to do. If the Government have their way, we are simply going to discover, when they come back from the next step in the negotiations, what exactly they have signed up to.

The reason it is important that we should put down this marker is that I want to stick with what was set out in Florence, which was a Government policy position. At this moment—over the course of this week—the Cabinet is having a discussion. There is an attempt to keep this secret, but, unfortunately, leaks are coming out in all directions, and I sympathise with the Prime Minister on that. The Cabinet is debating whether everyone is prepared to be bound by the Florence speech or whether some of its members want to reopen it and start modifying it. That is why this new clause is a chance to say that if that be the case, the overwhelming majority of Members confirm and approve what was set out in the Florence speech.

I hope that we will not see the extraordinary spectacle of the fear of right-wing Eurosceptics meaning that such lengths are gone to that the Government put a three-line whip on their Ministers and all their Back Benchers to cast a vote against the Florence speech, so that some room is left for them to be able to negotiate further with the Environment Secretary, the Foreign Secretary or whoever it is wanting to reopen it again. The Foreign Secretary made a speech before the Florence speech in which he tried to undermine the Prime Minister’s position going there. When she had made the Florence speech, he wrote an article a few days later—I think that I have this the right way round—putting out a starkly different interpretation of what she had said. This House of Commons has not so far had the opportunity to express an opinion, which is what new clause 54 is about.

[Mr Duncan Smith]

For the most part, this is a fairly benign new clause, but I am not certain, even from listening to him now, what my right hon. and learned Friend’s concern is in subsection (2) of his new clause where it refers to subsection (1). It seems he is concerned that somehow there will not be an implementation period. Alternatively, is it just that that implementation period has never been discussed by Parliament? Is there a fear the Government will try to do the dirty on us? I do not understand why he feels he has to have this provision.

[Mr Clarke]

It is an attempt to rule out both. Before anybody starts resorting to talking about drafting points, which is what has happened on every point of principle we have had in the past seven days of debate, they can all be sorted out on Report. If something in the wording of the new clause raises some serious technical difficulty, the Government should table an amendment on Report to sort it out. I am sure that would face no resistance at all.

[Paul Farrelly]

I have been trawling back through my more recent memory banks. If I am not mistaken, before the Minister was taken to task and dismissed the new clause as a constitutional novelty, which is no argument, he was rather sympathetic to its content, so I was assuming that he might agree with it because it is, after all, in agreement with what the Prime Minister said.

[Mr Clarke]

I shall not go back to waxing too much about the nature of the debates we have been having. We can be clear that it is the fault not of the Ministers but of the brief they have been given to keep things going until the timetable motion comes in, at which point if all is intact, they have made it—that is their job done. Those of us who have been Ministers have probably been in that situation ourselves on various occasions. Just as in the debate about the meaningful vote when the Minister at no stage engaged in the question what sort of meaningful vote the House of Commons should have, on this occasion the Minister has not engaged in any feature of the Florence speech with which he had any reservations. The substance was not challenged by a word that he said, hence my speculating why we might see the extraordinary spectacle of the Government instructing all their Ministers to vote against a prime ministerial declaration of Government policy from which, as far as I can see, the Prime Minister has at no stage personally withdrawn.

[Stephen Doughty]

rose—

[Mr Clarke]

Let me make a little more progress, or I am going to take far too long. I will try to give way later.

So far, in the complete confusion that has surrounded the consequences of the referendum for the past 18 months—I think we all agree that it has been an extraordinary situation since then—the few actual solid advances on policy have been made on only a few occasions. Indeed, the only times that the Prime Minister has set out policy clearly and been able to sign up to it—in the belief and, I think, hope that all her Government might agree to it—were the Lancaster House speech, the Florence speech and last week when she entered into the agreement on the outline of the withdrawal agreement.

I do not want to put the Lancaster House speech into the Bill, because that was the beginning of our problems. I do not know why the Prime Minister went there to interpret and declare the referendum result as meaning that we were leaving the single market and the customs union and abandoning the jurisdiction of the European Court of Justice. I shall come back to this later, but all our economic problems stem from that. Some people may have argued during the referendum campaign that we should leave the single market and the customs union, but I never met one and I did not read about one in the media. The leading lights of the leavers who were reported in the media—I accept that the national media reporting of the referendum debate was pretty dreadful on both sides, with a very low level of accuracy and content—and particularly the Foreign Secretary emphasised that our trading position would not be changed at all. The Prime Minister changed that in her Lancaster House speech.

The Prime Minister and the Government are free traders. I am a free trader. I keep asserting that we are free traders. The objections to the single market and the customs union that she and the Government give are nothing to do with open trade, which is quite accepted. It is said that we have to leave the single market because it is accompanied by the freedom of movement of workers. Well, as we were running the most generous version of freedom of movement in western Europe before the referendum, if that is the problem—if migration is what we really want to get out of—let us address that and not throw out the baby with the bath water by leaving the single market.

Similarly, I have never heard anybody get up and say what is wrong with the customs union in so far as it is an arrangement that gives a completely open border between ourselves and 27 other countries in Europe. What is wrong with it? Nothing. Apparently, we have to leave the customs union, so that the Secretary of State for International Trade can go away and pursue what I think is this extraordinary vision that we sometimes get given of reaching trade agreements with all these great countries throughout the world that are about to throw open their doors to us without any corresponding obligations on our part, no doubt, to compensate us for the damage that we will do to our trade with Europe. I am afraid that I do not believe that.

I wish to move to my final point, because other people are trying to get in. I have the Florence speech with me. It was a really substantial move forward. Let me just quote the bit on the transition period, which is what I am concentrating on. It says:

“So during the implementation period access to one another’s markets should continue on current terms and Britain also should continue to take part in existing security measures. And I know businesses, in particular, would welcome the certainty this would provide.

The framework for this strictly time-limited period, which can be agreed under Article 50, would be the existing structure of EU rules and regulations.”

Several times since then, the Prime Minister has been courageous enough to make it clear that it means that, during this transition period, we accept the regulatory harmony we have in the single market, we accept the absence of customs barriers in the customs union and we accept the jurisdiction of the European Court of Justice to resolve disputes.

I have never understood what on earth is supposed to be wrong with the European Court of Justice except that it has the word “European” in its title. A very distinguished British judge is one of the people who is appointed to it. There is no case of any significance that we have ever lost there. The City of London and our financial services industry enjoy a passport for very important trade in the eurozone, particularly all the clearing operations that they have done. We had to go to the European Court of Justice as plaintiffs against the European Central Bank to get that passport. But, no, it is a foreign court, and it will be replaced by an international arbitration agreement of the kind that exists in every other trade agreement in the world. The ECJ is a superior system, but we will not get a trade agreement with any country anywhere of any significance, or with a developed economy, that does not have a mutually binding legal arbitration or jurisdiction of some kind, which resolves disputes under the treaty.

[Geraint Davies]

rose—

[Mr Clarke]

I will conclude if I may. I have already taken longer than I said, so please forgive me.

Let me just touch on this question: how we can get this whole debate into the grown up world and accept the reality that exists in a globalised economy. What do we mean by international trade agreements? What is beneficial to a country such as ours to give us the best base for future prosperity in the modern world? Frankly, at times, some of the debate has taken on an unreal quality.

I will not follow the hon. Member for Nottingham East, my collaborator in this new clause, because he gave a very carefully researched and very clear description of what actually is involved in trading arrangements. The first simple political point I will make is that, at the moment, we have absolutely unfettered access, by way of regulatory barriers, customs and so on, to the biggest and most open free-trade system in the world. Nowhere else has rivalled it. Mercosur failed because it did not have the institutions such as the Court or the Commission; the North American Free Trade Agreement—NAFTA—is collapsing; and the Americans have pulled out of the Trans-Pacific Partnership. Everybody wants these deals, but only 28 European nation states have succeeded in getting such an open one. Of course the hon. Member for Vauxhall and others have argued strongly that we voted to leave that. Anything new that we put in by way of tariff barriers, customs barriers or regulatory barriers is bound to damage our position compared with where we are now. That is why we should minimise all those things as far as we can.

It is no good developing some fantasy that we are going to reach an agreement that puts up new barriers to trade—that we are going to get protectionist towards the rest of Europe, while being ultimate free traders towards the rest of the world—without damaging ourselves. Both sides exaggerate, which is pretty typical of most political arguments that take place in any democracy. Once people start putting mad figures on everything, they can get carried away.

--- Later in debate ---

[Mr Duncan Smith]

Excellent. It is always good to take a sedentary intervention from my hon. Friend.

I said I would be brief, so I will bring my remarks to a conclusion. I support the amendments and I congratulate those who drafted them. I want the Government to get through this as best they can. They should listen carefully where there are changes to be made but, if we have to return to this matter on Report, they will certainly have my support in making whatever changes are necessary to accommodate concerns so that we get a Bill that is reasonable, feasible and puts the power back into the House.

I would make one small point, however, to those who opened up this massive debate about what happened during the referendum and the idea that we can guess what was in people’s minds. It was said again and again, as I recall, by the then Prime Minister, by the then Chancellor, by Lord Mandelson and also by many in the vote leave campaign, that voting to leave meant leaving the customs union and the single market. Now, I understand and accept that people might not want to do that—they advance all sorts of reasons for not doing it—but it was said again and again. On the idea that the British people were too stupid to understand what they were voting for, I say that they were right in their decision and made a decision that was a lot more intelligent than people give them credit for.

[Mr Kenneth Clarke]

When that was said—it probably was said by one or two campaigners on the remain side during the referendum campaign—it was used as an argument against voting to leave. The reaction of leave campaigners was to dismiss it, saying it was the politics of fear, that people were being alarmist in talking about leaving the single market and that in fact our trading arrangements would remain absolutely unchanged, because the Germans had to sell us their Mercedes. That was the role it played in the referendum campaign.

[Mr Duncan Smith]

I always like to take an intervention from my right hon. and learned Friend. We agree on many things, but not on this, it has to be said. He will remember that, when he was Lord Chancellor, I supported him in getting through his very good and far-reaching reforms—I wish they had all been put through, but they were not, as he knows. To that extent, I have long supported him, but on this I do not fully agree with him. I think it was clear. It is no good saying that “some” people on the remain side said it. The Prime Minister and the Chancellor were the leaders of the remain campaign, certainly on the Government Benches, but also from the stand point of the country, and they were very clear on this. I do not recall anyone—I certainly did not—saying, “No, no, we’ll stay in the single market and customs union.” I have always made the point that leaving means leaving the Court of Justice, the customs union and the single market. Voters were, I believe, clear about that, but we can all debate and rerun the arguments.

European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

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

[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.

[Hannah Bardell (Livingston) (SNP)]

rose—

[Mr Clarke]

I will give way in a second; before I finish, I will give way if people insist.

Secondly, what on earth is the advantage we gain by putting in a three-month limit? The Government have taken weeks to come back with their alleged response to the points raised on the Floor of the House on acquired legal rights, and it seems we can have a concession for three months. That is utterly ludicrous. Thirdly, what is wrong here? My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) is much more of a gentleman than I, and he is much more likely to adhere to party political loyalties. There is no more stout mainstream Conservative than me, and I would say that I am sticking to the Conservative principles that I have followed throughout my life until 18 months ago, but I do think some of these things, certainly on questions of rights, are not party issues. They usually do not have a whip applied. They are matters of conscience and cut across both sides. Going back to the future powers of this Parliament, which it must have of course, to amend retained EU law as and when the political will of the House wishes to do so, what is wrong with new clause 13 and its specification of what is primary legislation and what is secondary legislation? What alternative are the Government going to come up with, other than just saying, “The Government of the day will decide as each issues arises”? They must have a better alternative than that.

[Catherine West]

The right hon. and learned Gentleman is making an excellent speech. Does he agree that this is the sort of amendment that the other place might just take to heart and bounce back, so it might be more sensible to have that difficult pain now and get it out of the way, and the other House will not have to return it?

[Mr Clarke]

I hope and believe that the other place will make an enormous number of changes to this Bill. The idea that a Bill with all these Henry VIII clauses is going to have an untroubled passage through the House of Lords is an illusion. This House just lets every extension of the Henry VIII clause principle through. The Opposition of the day object like mad but then that party takes office, cites the precedents of its predecessor and defends them as the way of proceeding, and the previous Government then start denouncing them. I hope the House of Lords will throw back some of the bizarre extension of the Henry VIII principle in this Bill and some of the European things.

--- Later in debate ---

[The Solicitor General]

My right hon. and learned Friend and I agree about general principles, which is why the general principles that underpin the recently drafted charter remain and, of course, do apply in respect of retained EU law. His second point about the means by which individuals challenge that is, of course, a matter of ongoing debate. I shall come back to the points raised in not only his amendment, but mine as well.

[Mr Kenneth Clarke]

My hon. and learned Friend kindly said that he would try to answer my question. The question was: what harm has the charter of fundamental rights done and what evil is he trying to avert? It is true that, unexpectedly, new rights have been created under the charter and he is right that those rights have relevance to EU law. But the whole point of the Bill is to retain large amounts of EU law and its principles. What is the point of the change? This is policy in this Bill—it is a policy change. I fear that it is a signal to some sections of my party: the only part of the acquis communautaire that will be abolished mentions the wicked words “fundamental rights”, and that is why it is being removed.

[The Solicitor General]

The position that my right hon. and learned Friend took on the charter back in 2007 is the right one. As I was saying, it is in the interests of maintaining the rule of law that we maintain clarity, consistency and a clear authoritative source for those rights. My genuine concern about the importation of this particular charter into our domestic law is that we will sow confusion. That is not good for the maintenance of the rule of law, for the citizens of our country, for the future development of the law or for the position of this place vis-à-vis that development.

European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

3rd reading: House of Commons & Report stage: Second Day: House of Commons
Wednesday 17th January 2018 Commons Chamber

[Matthew Pennycook]

I agree, but what I would say—and why I would urge Members to support this amendment—is that it need not require the amendment of this Bill to allow the facilitation of transitional arrangements on the same terms in addition to the provisions that the right hon. and learned Gentleman is right to say will be needed in that further Act of Parliament.

We still believe that it should be Parliament, not Ministers, that decides exit day for the various purposes in the Bill. Our amendment 1 helpfully bolsters the position set out by the Prime Minister in the Florence speech by ensuring that this Bill can facilitate transitional arrangements on the same terms as now.

Given that this is, of course, Government policy, it is a wonder that the Government did not bring forward such an amendment themselves. They did not do so because they cannot agree on what the transition means. There can be no clearer evidence for that than the recent appointment of the hon. Member for Fareham (Suella Fernandes) to the Department for Exiting the European Union team, given her past form in seeking to actively undermine the policy position set out in the Florence speech by encouraging her colleagues to sign a European Research Group letter to the Prime Minister objecting to crucial aspects of it. It is ironic that those Tory MPs who voted for amendment 7 back in December are viewed by many as having betrayed the Government, while those who actively undermine stated Government policy appear to get promoted in quick succession.

Amendment 1 is simply an attempt to restore some common sense to the question of exit day for the purposes of this Bill. It would ensure that this Bill can facilitate any transitional arrangements agreed as part of the article 50 negotiations and that we avoid the ludicrous situation of potentially having to come back to amend this Bill in order to do so. It is in line with stated Government policy, and we therefore look forward to the Government not only accepting it, but welcoming it.

The Opposition have made it clear from the outset that a Bill of this kind is necessary to disentangle ourselves from the European Union’s legal structures and to ensure that we have a functioning statute book on the day we leave. But as we argued on Second Reading in September last year, this Bill is a fundamentally flawed piece of legislation. Sadly, despite the small number of welcome concessions, and the implications for the legislation of the defeat the Government suffered at the hands of amendment 7 and the right hon. and learned Member for Beaconsfield (Mr Grieve) on 12 December, it remains a fundamentally flawed Bill. Those flaws still need to be addressed either by this House today or in the other place, and on that basis I urge all hon. Members to support new clause 1 and amendments 2 and 1.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I am glad to see my right hon. Friend the Member for New Forest West (Sir Desmond Swayne) in his place behind me, where I always welcome him. When I arrived, I inquired whether he had had a cup of coffee before today’s long proceedings, and I undertake to try to have no soporific effects on those Members who have survived to the eighth day of this Committee and Report stage.

I do not intend to follow entirely the hon. Member for Greenwich and Woolwich (Matthew Pennycook), although I listened to many of the points he made with considerable sympathy; I am quite sure that clause 7 will require more work when it gets to another place, and I also have considerable sympathy with what he said about the confusion now surrounding exit day and the ability to proceed to what I am sure is the obvious transition arrangement we are going to have to have for quite a long time, which will be on precisely the same terms that we have at the moment, so far as access to the market is concerned.

I will turn my attention, however, to the Bill’s impact on the economy, following from new clause 17, which is in this selection and strikes me as excellent, and several more of the same kind. In our eight days, the House has not had anything like adequate opportunities to consider this absolutely vital policy implication of what we are embarked upon as we seek to leave the EU. I do not share the view that the Bill needs to be treated in this House or the other place as a mere technical or necessary Bill of legal transition; we have the opportunity to put into the Bill some of the essential aspects of our future economic relationship and to allow the House to express a view and put into statute things that we wish, and instruct in line with our constitution, the Government of the day to follow.

There is undoubtedly going to be some economic cost to this country, regardless of the means by which we eventually leave the European Union. If we have a complete break with no deal, the implications could be very serious indeed. I am one of those who think it rather foolish to try to put precise figures on this. The Scottish National party earlier tried to make precise estimates of what would happen because a think-tank had put out a range of consequences, depending on which options were followed. It was rather reminiscent of the arguments put forward by the then Chancellor of the Exchequer when he tried to help the remain side during the referendum campaign. They were really rather fanciful figures.

[Peter Grant]

rose—

[Mr Clarke]

As I have mentioned the SNP, I will give way to the hon. Gentleman.

[Peter Grant]

Clearly, any forecast or projection is going to be approximate, and I do not think that anyone is claiming that the Scottish Government’s figures are precise. But would the right hon. and learned Gentleman prefer to defend a position that was backed up by approximations and forecasts that may or may not be accurate, or would he prefer to be in the Government’s position of defending a position backed up by no impact analysis whatever?

[Mr Clarke]

I shall turn to that in a moment, but I agree with the hon. Gentleman entirely. I was not making a criticism of the think-tank, which has done its best, but we all know from experience that all economic forecasting should be taken with a slight grain of salt. It is utterly beyond the capacity of either the Treasury or the most expert outside groups to predict with absolute confidence what the precise consequences will be.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

Will the right hon. and learned Gentleman give way?

[Mr Clarke]

I would like to move on. I was merely making a passing remark about the unwisdom of trying to put a figure on this, but I will give way.

[Stephen Doughty]

I am grateful to the right hon. and learned Gentleman. I wonder, given that he is talking about the impact on the economy, whether he has heard the remarks by Christophe Bondy, the legal counsel to the Canadian Government during the Comprehensive Economic and Trade Agreement negotiations. He has described Brexit as being like trying to

“blow up a bridge without bankrupting yourself”

at the same time. He has also said that the Canadian deal and our coming out of the single market and customs union are very different.

[Mr Clarke]

I agree with that second point strongly, and I will consider the implications of the quote.

The point I am trying to make is that, whatever the basis on which we come out, there are bound to be adverse effects on the British economy if we create new barriers between ourselves and the biggest free market in the world. No other Government would remotely contemplate moving out of such a completely open and free market and deliberately raising barriers by way of tariffs, customs processes or regulatory divergences between themselves and such a hugely valuable market. It is particularly valuable to us not only because it is a huge market but because it is on our doorstep. We have played a major part in creating this totally open trade.

If we proceed to a deal in which we withdraw, we will inevitably find ourselves, to some degree or other, taking an economic blow and probably making future generations less prosperous than they would otherwise have been. It is important that we all realise that, which is why it is a great pity that the House is not being given the information necessary to make a really informed judgment, as the hon. Member for Glenrothes (Peter Grant) has just said, or being allowed any opportunity to guide the Government and hold them to account for the course on which they are set on these economic and trading implications.

[Sir William Cash]

In his assessment, has my right hon. and learned Friend taken into account the fact that services within the European Union have never been completed under the single market? Furthermore, our deficit in the past year with the other 27 member states has gone up by another £10 billion, while our surplus in our trading with the rest of the world has grown exponentially by another £6 billion or £7 billion, so I really rather doubt his conclusions.

[Mr Clarke]

I entirely agree with my hon. Friend’s first point. For as long as I can remember, it has been the policy of Conservative Governments, some of which I have served in—indeed, it is a policy in which I have been involved from time to time—to press for the single market to be extended to cover all services. Until the referendum almost 18 months ago, we were still actively engaged in canvassing for that and trying to push it forward inside the EU. We are also making considerable progress towards a digital single market across Europe, which will be very important. The other member states are likely to go on and complete that quite soon.

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[Tom Brake (Carshalton and Wallington) (LD)]

rose—

[Mr Clarke]

My hon. Friend and I have been debating the subject for so long, and I think it would be unwise for the two of us to get bogged down in mercantilism. I will give way to the right hon. Gentleman.

[Tom Brake]

I want to ask the right hon. and learned Gentleman about the assessment of impact. I think that it is important that we call it an assessment of impact rather than an impact assessment, because the Government can hide behind the formal impact assessment process. On the assessment of impact, would he like to speculate about why the Government are so adamant that Members of Parliament should not be allowed to receive this information?

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[Mr Clarke]

The points I hoped to make in my speech are being put to me by others, which may have the welcome effect of shortening my contribution. I entirely agree with the right hon. Gentleman.

[John Redwood (Wokingham) (Con)]

My right hon. and learned Friend has not given us many numbers so far, and the one he has given us is wrong. We have actually had eight days in Committee and two days on Report, and we had an extensive debate on Second Reading in which many of these larger issues were strongly reviewed. We had very detailed short-term forecasts from the Treasury of what would happen in the year or so immediately after the vote if we voted to leave. We now know they were comprehensively wrong in forecasting a recession, a big rise in unemployment and a big fall in house prices. Why were they so wrong, and what has he learned from that?

[Mr Clarke]

My defence is that I did not use any of those arguments in the campaigning I took part in during the referendum. The referendum campaign was somewhat taken over by the then Chancellor and the then Prime Minister, both friends of mine and people with whom I politically agree on Europe, and I would not have made the same choice of arguments. I thought at the time that they were spinning the short-term forecasts far too far and, with hindsight following the rather narrow result, they rather discredited the remain campaign. Surprisingly, I am rather in agreement with my right hon. Friend.

My right hon. Friend may not have been here in time to hear me begin by saying that all attempts to produce a precise forecast of any change in economic arrangements are fraught with peril. I would have preferred the referendum to have been fought on arguments about the benefits, in the opinion of those on my side, that membership of the EU has brought to this country in enabling us to develop a powerful political role in the world as one of the leading members of the EU, in helping the bloc to hold its own against America, China, India and the emerging powers and in the considerable economic success that we achieved for most of the 47 years of our membership. There is no doubt that the common market and then particularly the single market have made a considerable contribution to our prosperity.

That enables me to return to the point of my speech, which is the economic consequences and how the House might be enabled to hold the Government to account for the likely economic consequences—properly and cautiously anticipated—when they have a policy on the eventual outcome they are trying to negotiate and then, because it will inevitably change in the real world, when a deal is ultimately negotiated.

I would prefer us to continue in the single market and the customs union. The point has been made, including by me, so I will repeat it in only one sentence, but at no point in the referendum campaign did the leavers say that one of the advantages of leaving is that we will leave the single market and the customs union. Most of them never mentioned it, and the ones who were reported in the national media did not mention it. It was all about Turks coming here to take our jobs and about extra money for the health service. Both sides used equally foolish arguments, or at least the national media only chose to report the foolish arguments. The people I debated with in town halls did not use such nonsense.

[Geraint Davies]

Does the right hon. and learned Gentleman accept that we are less likely to catch up with the Germans on penetrating the Chinese market if we are out of the EU? We will have our back to the wall, facing tariffs, if we are not in the EU, and the Chinese will be able to bargain harder against a small player with few resources and little trade.

[Mr Clarke]

That is possible. The idea that the Germans find membership of the European Union a disadvantage in their economic performance in the modern world is, of course, a rather farcical fallacy. If we weaken our attractiveness to inward investment and if we weaken ourselves as a base for trade with the rest of Europe, we will attract less investment and less trade with the wider world, too. I entirely agree that that is a risk.

The Lancaster House speech transformed things by suddenly making the Government’s policy particularly dependent, apparently, on leaving the single market, leaving the common market and, incidentally, repudiating the jurisdiction of the European Court of Justice, which I will not go into because I have never been able to work out why the work of those judges, including the excellent British judges we have had on that Court, is particularly criticised. That is another matter.

I have never heard any Government Front Bencher attack the single market in itself or the customs union. When we hear speeches from Ministers about a bespoke new trade agreement, it sounds very much like an unbroken continuation of all the access we have to the rest of Europe under the single market and the customs union. The only objection to the single market, and the Prime Minister once expressed this to me at Prime Minister’s questions, is the four freedoms that go with it, including the free movement of labour. I still imagine that other countries would quite like to address the free movement of labour.

I think free movement of labour does us good—I would not want to get rid of it—but we do not need to run it in quite the lax way we have been running it for the last 20 years. The only other objection to a customs union, and I do not regard it as an adequate reason—staying in the customs union would solve the Northern Ireland and Irish Republic problem practically overnight—is that it stops the Secretary of State for International Trade going out and negotiating marvellous new trading arrangements with all sorts of places. Negotiating such arrangements would, of course, produce a hole in the common customs barrier that the customs union creates.

If anything, I am afraid the world is more protectionist than it used to be. The last great attempt by those of us who believe in a rules-based order in the global system was the Doha round, in which we tried to get the WTO rules to move on from their present rudimentary condition after what was then the triumph of the Uruguay round. The Doha round went on for years and years, and eventually it went into the sand. It was never completed to the satisfaction of anyone who agrees that there are benefits to all societies from having properly regulated and protected free trade.

I have already addressed the idea that, when we are no longer negotiating as a member of the EU, Trump’s America will be more likely than Obama’s America to throw open its doors to unfettered access to whichever goods and services we wish to send. The Brazilians are ambiguous. The EU has everything to gain from dealing with Brazil, but the difficulties are that Brazil insists on exporting food products on a grand scale and the internal economy of Brazil does not naturally lend itself to free trade. Mercosur, as a group, is almost incapable of agreeing on any common position.

I will not go on but, much though some in the present Administration would wish otherwise, I do not think India is yet ready for free trade agreements with countries such as Britain. I wish I could feel more confident it were otherwise, but I think the Lok Sabha will daunt anyone who tries to take on the various pressures in India in order to have a free trade agreement. I have been to India myself to try to get it to open up to legal services, with considerable support from a lot of Indian businesses that would like some of our countries to provide international quality services in Delhi so that they do not have to come to London to get their advice, but protectionism in every aspect of Indian society is not to be understated. We are not going to get far. I will not go on about China, as I said I would not go country by country.

This is all an absolute illusion. I would prefer to stay where we are, but apparently we are moving out. We are demanding a bespoke arrangement but, as yet, we have not been clear what that bespoke arrangement is, which is a considerable difficulty. This has been debated already and we have got some concessions, although they are not yet good enough, but when we finally reach a stage where the British Government intend to ratify a proposed deal, it is perfectly obvious to me from all our past constitutional conventions that they should come to Parliament to get its approval for that ratification. There was a key vote in 1972 when we joined the European Union. There was approval in principle of the deal that was proposed, which attracted Jenkinsite support to give the then Government a majority over their imperialist rebels, who were voting against it. But we started legislating in 1972 only when we had the approval of the House of Commons, by quite a comfortable majority, to ratify on the terms that were presented and explained. The same should happen here.

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[Justine Greening (Putney) (Con)]

My right hon. and learned Friend has made a very important point. I represent a very young constituency in London. The bottom line, looking ahead, is that, if Brexit does not work for young people in our country, in the end it will not be sustainable and when they take their place here, they will seek to improve or undo what we have done and make it work for them. So we absolutely have a duty in this House to look ahead and ensure that whatever we get is sustainable and works for them.

[Mr Clarke]

I entirely agree with my right hon. Friend on that. One extraordinary thing about the division of opinion is that I have never known it to be so much on generational lines. There are some zealot young leavers and there are one or two, like me, old fogey, very sound remainers, but otherwise the public have not usually been divided so fiercely on generational grounds. In my limited experience—I do spend a lot of time in London’s House of Commons—I would have thought places such as Richmond and Putney would underline that very heavily. My experience of young, ambitious, professional business and other people in London has been that for the first time in my life I have had complete strangers from that category walk up to me in the streets just to thank me for taking part in this campaign. [Interruption.] I see that other Members have exactly the same experience. I am sure the silent people who walk by deplore my views, but this just brings home to me how divided the nation is and, curiously, it is on generational grounds. Therefore, unless something happens, the pro-remain sentiment is likely to increase as a proportion of the country as we go on. But if we leave and are then forced by events to start going back again, I cannot think of a more chaotic situation. That is why we need the information to make a proper assessment when eventually the Government, as they will have to and are entitled to, come back to this House to present the proposed deal—not a deal they have already done and signed up to—for approval.

The Government have vast amounts of material on this subject and vast access to resources, and they have no reason for excluding the House of Commons totally. I am talking not about their negotiating position, because of course they will exclude us from that, but about the basis of the objective, independent advice they have received. That is why I thought it was wise for the House of Commons to pass the motion, which the Government allowed it to do, asking them to produce papers, after Ministers had rightly said that there were all these impact assessments and so on. I bow to the Select Committee, to which we rightly transferred responsibility for looking at that and considering the matter, but I agree with the intervention I took from the hon. Member for Glenrothes.

The Government escaped from that position by suddenly taking the most narrow interpretation of the words “impact assessment”. Apparently, civil servants, who are always capable of coming up with helpful advice, said, “Strictly speaking, Minister, in Whitehall, ‘impact assessment’ means this.” That is not quite how we set it out, so that was refused. Then this was all edited, probably with large parts of it rewritten. What we do not have is what we undoubtedly require: an impact assessment, by whatever description, using the advice that comes to the Government from the Treasury, the central Bank, the Office for Budget Responsibility and any consultants they have taken in, of the basis on which this deal is being proposed and what the best advice they can obtain about its impact is. I am astonished that we have got so far into the proceedings and the debate on our future relationships with Europe and we still do not seem to be any nearer to persuading the Government ever to divulge any of this. I do not think we should wait for the 20-year or 30-year rule before we are allowed to see on what basis the Government were proceeding. As I began by saying, I agree with new clause 17 that we should specify that proper, full information is shared by the Government with this House before they come for our approval.

[Anna Soubry (Broxtowe) (Con)]

As ever, my right hon. and learned Friend is making an exceptionally important speech and doing so eloquently. As he will know, a group from the all-party group on EU relations has just been over to Brussels, where we spoke to a number of people. Many of those conversations will remain between us, as we agreed. Does he agree that it could well be argued that the Government made a mistake in rushing into saying no to the customs union and to the single market without fully understanding the implications, not just for our economy, but in terms of how this has meant that a range of options has now been taken off the table by the UK Government, when the EU has made it very clear that all options remain on the table as far as it is concerned?

[Mr Clarke]

My right hon. Friend and I have many friends in common. I am delighted that she went over to see Michel Barnier and others, whom I saw in slightly different company shortly before. I agree entirely with what she says, and I would add that the people she was meeting, people like Michel Barnier, are not Anglophobes. They are not just seeking to strike points off the UK. Every person of any common sense on either side of the channel knows that the minimum of disruption to trade between our countries is, for the reasons I was arguing with my hon. Friend the Member for Stone (Sir William Cash) a little time ago, of mutual benefit to those countries. They are looking to negotiate a serious, grown-up agreement that preserves, so far as is possible, the benefits of our present arrangement.

It will be extremely difficult. There is no getting away from the fact that the 27 countries will all have to be in agreement with whatever the eventual deal is and will all submit to their Parliaments a vote to approve that deal, and it is going to be very difficult to get them to agree. They will not surrender the basic tenets of the EU in order to leave us all the benefits of the single market without any of the obligations. Not only will they not agree that the British taxpayer should stop paying a penny towards the costs of market access so that the taxpayers of Germany, the Netherlands and other rich countries pay more to make up for our refusal to pay our share, but they will not let us get out of all the political implications of membership of the EU simply to have solely the trading benefits.

We saw this recently with the members of the European economic area and their perfectly comfortable arrangement. The Norwegians had to go into the EEA because they had negotiated a perfectly sensible arrangement to become full members of the EU—I had many happy discussions with my then opposite number, the Norwegian Finance Minister, who was looking forward to joining the EU—but then held a referendum. They got into the same mess that we have got into, so they put quite a good alternative together, which I still find quite attractive.

The fact is that what we get will be unsatisfactory compared with complete membership of the single market and customs union. Like my right hon. Friend the Member for Broxtowe (Anna Soubry), I do not think that anybody realised at the time quite what was involved in respect of what seemed a speech likely to be valuable politically in getting good write-ups in the right-wing press. We are now trying to get out of that and to slip back a little to get a more sensible arrangement. The House needs to know what expert advice the Government have on the implications of any deal, and new clause 17 provides a mechanism by which we can legally oblige the Government to produce it.

[Several hon. Members rose—]

[Mr Speaker]

Has the right hon. and learned Gentleman concluded his speech?

[Mr Clarke]

I have, and everybody still seems to be awake!

[Mr Speaker]

Everybody is awake; we have been listening to the right hon. and learned Gentleman with rapt attention.

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[Mr Kenneth Clarke]

Well, would my hon. Friend give way? [Laughter.]

[Mr Speaker]

The Minister is hearing voices!

[Mr Clarke]

Voices of inspiration, I trust.

My hon. Friend mentioned the withdrawal Bill several times. Am I right—to be absolutely clear—that the withdrawal Bill will come forward and be considered, and probably approved, by this House before any withdrawal agreement is ratified, that we will not be presented with a Bill to implement an agreement that is already binding on the United Kingdom, but that actually the Government will not ratify any agreements until the House of Commons has first given its support and approval?

[Mr Baker]

The situation is set out in detail in the written ministerial statement that we laid. Both Houses will have meaningful votes on whether to accept the agreement. It is my expectation that we would not ratify before that primary legislation has gone through.

New clause 1 was tabled by the Labour Front-Bench team. It seeks to place limitations on the use of existing and future powers to amend and modify retained EU law. It is absolutely right and necessary for existing domestic powers granted by Parliament in other Acts and any future delegated powers created after exit day to be able to operate effectively and without inappropriate fetter within UK domestic law after our departure from the EU. This includes parts of our existing domestic law which will become retained EU law after exit day, as well as retained direct EU legislation which will be converted into our domestic statute book.

The Bill’s current approach to existing and future delegated powers aims to ensure the successful operation of retained EU law within our domestic statute book beyond the time limits for the Bill’s more limited specific powers. Adopting the new clause, on the other hand, would undermine the position of certainty and have several detrimental effects that would risk creating significant confusion in the UK statute book. First, limiting the modification of retained EU law by existing and future delegated powers only to when this is necessary

“to maintain or enhance rights and protections”

could have uncertain consequences. A test of necessity would impose a high burden that may prevent powers from being used in the most appropriate and relevant way if the regulations they create are not deemed truly necessary for the protection of rights. That could mean that existing and future delegated powers would be unable to amend or modify irrelevant or unsuitable parts of the statute book, leading to ossification of parts of retained EU law within UK domestic law and creating confusion and uncertainty.

Secondly, a restriction of that nature inevitably will increase the possibility of legal challenge against any use of these delegated powers. That would create needless uncertainty for businesses and individuals and risk holes emerging within the domestic statute book. Finally, the measure would also impose significant consultation requirements on the exercise of the delegated powers, the use of which is running against the clock. I understand and support the intention to ensure that all relevant stakeholders, as well as the general public, are aware of the situation and can engage as new legislation is developed. However, the blanket approach suggested under the new clause would be excessively and needlessly onerous. It would risk delays to the implementation of important changes.

In using both existing delegated powers and those created in the future, the Government will, of course, remain bound by the rules and procedures laid out in the parent Act, as well as the accepted statutory instrument processes. I will take this moment to say that I am proud of what we have done to clause 7 to make sure that we have contained the list of deficiencies while making sure that it is amendable through the affirmative procedure.

Turning to new clause 22, I think that I satisfied my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) earlier in the debate, but he is not in the Chamber so, if the House will allow me, I will move on to new clauses 14 and 15—

European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

Ping Pong: House of Commons
Wednesday 20th June 2018 Commons Chamber

[Mr Davis]

My hon. Friend is right, and I shall come back to that point in a second.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

The satisfactory amendment that left the House of Lords would oblige the Government to table a substantive motion if their agreement were being rejected. No doubt they would draft that with a view to commanding the majority of the House, but other people could table a substantive amendment with alternative proposals for how to proceed. My right hon. Friend rejects that, and is trying to replace it with a situation in which the Government do not have to put anything in their second amendment, except that they take note. Then, if anyone tries to table a substantive motion as an amendment, I will give you a pound to a penny, Mr Speaker, that the argument will be “If you pass this, it will mean no deal, because the Government are not going to negotiate this, and it will bring the thing to an end.”

I cannot for the life of me see why the Government are hesitating about the Lords amendment, except, of course, that they have come under tremendous pressure from hard-line Brexiteers in the Government, who caused them to reject the perfectly satisfactory understanding that had been reached with Conservative Members who had doubts last week.

[Mr Davis]

I am afraid that I do not agree with my right hon. and learned Friend, as he will be unsurprised to hear. I will not try to follow him down the path of what might happen and in what circumstances. I shall explain in a moment the reasoning behind the restriction of amendment, which is precisely accurate in this area.

Let me say this to my right hon. and learned Friend. He has been in the House even longer than I have, and he knows full well that very often, when matters are particularly important, the procedural mechanism of a motion does not actually determine its power or its effect. That goes all the way back to the Norway debate, which arose from an Adjournment motion tabled by the Chief Whip of the day, and which changed the course of the war. So I do not take my right hon. and learned Friend’s point at all.

The amendment sent to us by the other place does not offer those motions in neutral terms. It is therefore possible—indeed, I would predict, likely—that wide-ranging amendments will be tabled which would seek to instruct the Government how to proceed in relation to our European Union withdrawal. This may seem to be a minor point of procedure, but it is integral to the nature of the motions, and to whether they pass the three tests that I set out last week.

The debates and amendments of the last week have revolved around what would happen in the event of no deal. Let me explain to the right hon. Member for Leeds Central (Hilary Benn) the distinction between the amendments and the motion that we promised the House—indeed, I think that I first promised it to him as long ago as the article 50 debate. The provisions of the motion will come about if the House rejects the circumstances of a deal, but the amendments apply principally to the issue of no deal, which is really rather different. Let me also make it clear to the hon. Member for North Down (Lady Hermon) that I have never argued in favour of no deal. I do not favour no deal, and I will do what I can to avoid no deal. It is not an outcome that we are seeking, and, as things stand, I am confident that we will achieve a deal that Parliament can support. However, you cannot enter a negotiation without the right to walk away; if you do, it rapidly ceases to be a negotiation.

The Lords amendment undermines the strength of the United Kingdom in negotiations. There are plenty of voices on the European side of the negotiations who seek to punish us and do us harm—who wish to present us with an unambiguously bad deal. Some would do so to dissuade others from following us, and others would do so with the intention of reversing the referendum, and making us lose our nerve and rejoin the European Union. If it undermines the UK’s ability to walk away, the amendment makes that outcome more likely. That is the paradox. Trying to head off no deal—and this, too, is important to the hon. Lady—is actually making no deal more likely, and that is what we are trying to avoid.

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[Mr Grieve]

No, I will not.

In view of that acknowledgement, I must say that I weigh that and the clear words of this statement against what my right hon. Friend the Prime Minister has told me about her anxieties. My judgment—it is purely personal—is that if that is the issue, having finally obtained, with a little more difficulty than I would have wished, the obvious acknowledgement of the sovereignty of this place over the Executive in black and white language, I am prepared to accept the Government’s difficulty, support them and, in the circumstances, to accept the form of amendment that they want. I shall formally move my amendment at the end, because I do not want to deprive the House of the right to vote if it wishes. Members have the absolute right to disagree, but it seems to me that, with the acknowledgement having been properly made, I am content to go down that route.

[Mr Kenneth Clarke]

Will my right hon. and learned Friend give way?

[Mr Grieve]

No, I want to end.

We are facing some real difficulties at the moment. It is rightly said that those whom the gods want to destroy, they first render mad. There is enough madness around at the moment to make one start to question whether collective sanity in this country has disappeared. Every time someone tries to present a sensible reasoned argument in this House vilification and abuse follow, including death threats to right hon. and hon. Friends. There is a hysteria that completely loses sight of the issues that we really have to consider. There is an atmosphere of bullying that has the directly opposite consequence in that people are put into a position where they feel unable to compromise, because by doing so they will be immediately described as having “lost”—as if these were arguments to be lost or won. The issue must be that we get things right.

Right at the other end of the spectrum, we get some other ridiculous things. I have had Daily Mail journalists crawling over the garden of my house in France. I do not quite know, but I think they were looking for silos from which missiles might be aimed at the mansion of my hon. Friend the Member for North East Somerset (Mr Rees-Mogg). The area where I have a holiday home has a history of monsters and witches chucking megaliths backwards and forwards across the channel. Such is the state of our discourse, and that is the very thing we must avoid. We are going to have differences and, if there is no deal, those differences may extend to my taking a different view, as a Member of Parliament, from what the Government might wish. This House has a right to act if there is no deal in order to protect the interests of the British people, and the responsibility in those circumstances lies as much with us as it does with the Government.

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[Philip Davies]

I am not going to give way. As I was saying, if only that had been the case before. I excuse from this my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), because he did not vote to have a referendum and so there is absolutely no reason why he should feel in any way bound by its result. I perfectly respect that; his position has been entirely consistent. What I have no time for—

[Mr Kenneth Clarke]

To make it clear, this totally irrelevant argument that we are trying to reverse the referendum is as irrelevant to me as it is to any other of my right hon. and hon. Friends. This House voted, by an enormous majority, to invoke article 50. We are now trying to debate, and have parliamentary influence over, what we are going to do when we have left and what the form of our new arrangements with Europe and the rest of the world will be. So will my hon. Friend stop, yet again, introducing—this is not just him, but he is the ultimate Member to do it—this totally irrelevant argument and try to say what is wrong with the process set out in the Lords amendment? What is the excessive power that it apparently gives this House to have a say when the negotiations are finished?

[Philip Davies]

I am afraid that the public are not fooled by the motives of people who clearly want to delay, frustrate or overturn the result of the referendum. It is a shame some of them cannot admit it. The shadow Secretary of State said that people had said over a long period of time that if we did this or that, Brexit will be frustrated. May I just suggest to him that he gets out of London, because people around the country feel that Brexit is being frustrated? It is already being frustrated a great deal by this House. So he has this idea that Brexit has not been frustrated, but he needs to get—

--- Later in debate ---

[Mr Speaker]

Order. I would like to accommodate further speakers.

[Mr Kenneth Clarke]

I shall make the shortest speech here that I have made for very many years—[Hon. Members: “Ever!”]—and I shall take no interventions. [Interruption.] Well, the Government are restricting debate on this European issue as ferociously as they are trying to restrict votes and powers. I voted against both the previous timetable motions. With no explanation, we have been told that we have an hour and a half for this extremely important issue today. Presumably, it is to allow time for the interesting debate that follows, taking note on the subject of NATO, which could be tabled at any time over the next fortnight and has no urgency whatever. None of us are allowed to say very much about this matter.

The Government have been trying to minimise the parliamentary role throughout the process. That is only too obvious. I will try to avoid repeating anything that others have said, but the fact is that it started with an attempt to deny the House any vote on the invocation of article 50, and litigation was required to change that. A meaningful vote has been resisted since it was first proposed. The Government suffered a defeat in this House during the earlier stages of our proceedings before they would contemplate it, and then they assured us that they would not try to reverse that; there would be a meaningful vote. But actually, because that amendment needs amplification and the Bill needs to be made clearer, we now have this vital last stage of Lords amendments and the final attempt to spell out what meaningful votes and parliamentary influence are supposed to mean, and it is being resisted to the very last moment.

Last week, I thought that the Government would be defeated because of their resistance. I was not invited to the negotiations. I do not blame the Chief Whip for that in the slightest. I have not fallen out with him personally, but I think that he knew that I would take a rather firm line as I saw nothing wrong with Lord Hailsham’s amendment if nothing else were available. My right hon. and hon. Friends, including my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), actually believed that they had undertakings from the Prime Minister, and I believe that the Prime Minister gave those undertakings in good faith.

My right hon. and learned Friend for Beaconsfield negotiated with a very distinguished member of the Government acting on the Prime Minister’s behalf, and they reached a firm agreement. That agreement is substantially reflected in Lords amendment 19P and my right hon. and hon. Friends expected that it would be tabled by the Government. It was not. And now the Government are resisting the very issue upon which last week a very distinguished member of the Government reached a settlement—to use the legal terms—because the Government are not able to live up to their agreement. We are being asked to substitute, for a perfectly reasonable Lords amendment, a convoluted thing that would mean arguments about the Speaker’s powers if it ever had to be invoked.

[Mr Chris Leslie (Nottingham East) (Lab/Co-op)]

There are only two issues that come out of this debate. The first is about honour. The right hon. and learned Member for Beaconsfield (Mr Grieve) tried to ensure that he got a deal from the Prime Minister. He went with other Members to negotiate with her and she made a promise to him about an amendment, but that promise was not necessarily fulfilled in the interpretation of the Members who heard her say it, so the House of Lords had to send this issue back to us today. This issue is definitely about honour. Other hon. Members have said that they believe that the House can pass resolutions and motions, and that they will be honoured, even if they are not necessarily binding. I believe that the right hon. and learned Member for Beaconsfield is an honourable man, and he is again taking the Government at their word.

That brings me to the second issue, which is that this is also about Parliament. If the right hon. and learned Member for Beaconsfield has achieved anything, it is that he has moved the Government from where the Prime Minister was on “The Andrew Marr Show” on Sunday, when she said that Parliament cannot tie the hands of Government. The right hon. and learned Member for Beaconsfield has managed to extract a statement from the Government, who are now saying that it is open for Members to table motions, that parliamentary time will be provided, and that it is open for this House, through Mr Speaker, to ensure that motions and decisions can be made. The right hon. and learned Gentleman believes that that is worth having and it is indeed true that it is a step forward. The difference that I have with him is that he believes that the Prime Minister and the Government should be given the benefit of the doubt yet again; I would suggest that he should not and could not necessarily trust their word. That is where we differ.