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.

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[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.

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[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.

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[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!