Privatised Probation System

Lord Clarke of Nottingham Excerpts

Monday 4th March 2019 Commons Chamber

[Rory Stewart]

As you would anticipate, Mr Speaker, we do not feel that this is simply an ideological choice between the private and the public sector. There are things that we can learn from the private sector. There have been some significant improvements in the way that services are delivered and in IT. We must also remember that this is not just a question of the private sector. In certain areas, we are working with local authorities and the voluntary sector.

To address the specific challenges that the hon. Gentleman raised, he pointed out that the frequency rate of reoffending has gone up, but the binary rate of reoffending has in fact gone down through the course of these programmes. On the question of cost, it is true that more money has gone in, but it is still much less money than anticipated. Broadly speaking, we were anticipating that we would spend about £3 billion over the course of the contract. The companies committed to spend about £1.8 billion and the Government put in an additional £400 million. That still leaves us spending perhaps £700 million—something of that sort—less than we anticipated. So the public have spent less money than they expected to over the course of this programme.

The Kent, Surrey and Sussex Community Rehabilitation Company is a good provider and we are confident it can step in successfully, but we also have the national probation service working with it to ensure that it operates well in the Working Links areas.

On the broader issue that the hon. Gentleman raised about whether we have looked carefully at the lessons, we absolutely have. As I explained, we will make absolutely sure that we look very carefully at the consultation requirements and that anything we do in the future carefully learns those lessons, de-risks, focuses on quality, improves performance and protects the public.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

In the field of justice policy, as in the field of health policy, arguments are being reduced to a notion that if the public sector provides a service it is automatically better than if the private sector does so. That is completely irrelevant and just a lazy substitute for producing any real ideas on what can be done to improve rehabilitation. I am very attracted by the Department’s idea that we might replace prison sentences of six months and less, because prison tends to toughen up the inadequate and unpleasant people who get those short sentences and need to be punished. It is essential that we strengthen the effectiveness of our probation-based rehabilitation services alongside that. I welcome what the Minister has announced, but does he accept that we need more trials of what can be done in various parts of the country so that we can carry public confidence, if we change the sentencing system, that people can be punished, but punished in a way that might more effectively stop them committing more crimes against the public when they are released?

[Rory Stewart]

Absolutely. As my right hon. and learned Friend points out, if we are to reduce the number of people serving ineffective short prison sentences, we must improve the quality of community sentences. That means that we need better supervision of offenders, better sentence planning and more use of technology, including electronic monitoring. One of the key objectives of the reforms that we will be bringing into probation is to reassure not just the public but the sentencers that good community protection exists.

Privately Financed Prisons

Lord Clarke of Nottingham Excerpts

Wednesday 27th June 2018 Commons Chamber

[Rory Stewart]

The shadow Lord Chancellor asked a number of important questions. Let me go through the answer on the six prisons where the 10,000 places are. At the first prison, Wellingborough, the construction will be funded by public capital. The second prison, Glen Parva, will be funded through PFI. We are exploring a range of other funding arrangements, including private finance, for the remaining four prisons but we have yet to achieve a resolution on that.

On the question of who we would like to bid, of course we will be looking for legal, reliable bidders, but I wish to emphasise that the key here is about getting quality and diversity into the estate. We do not want to be overly ideological about this. We believe in a mixed estate. There are some excellent public sector prisons. I had the privilege of visiting Dartmoor prison recently, where prison officers within the public sector estate are delivering excellent services and getting very good inspection reports. At the same time, Serco is running a difficult, challenging prison at Thameside, which has 1,600 places, and is innovating. It is bringing in new technology, it is bringing computers into cells and it has had a real impact on violence and on drugs.

At Liverpool’s Altcourse prison, G4S is running a prison where there are fantastic employment facilities and workshops in operation. The inspectors have clarified that in Liverpool the private sector, drawing on the same population size, is outperforming the public sector. This is not a question of a binary choice between the private and the public sectors; it is a question of a diversity of suppliers, who can often learn a great deal from each other.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

Does my hon. Friend agree that the question of whether a prison is publicly or privately financed and operated is an ideological irrelevance to the very many problems he faces? While accepting my congratulations on all the announcements he and the Secretary of State have made this morning, will he confirm that he will continue to give priority to reducing the numbers in prison, where possible, by removing those who are merely inadequate, those who are mentally ill and who could benefit from rehabilitation elsewhere? Will he also ensure that he gets rid of the older, slum, overcrowded prisons and that the new prisons can provide the quality of security and rehabilitation that the public deserve?

[Rory Stewart]

That question comes from someone who was of course a very distinguished Lord Chancellor and Secretary of State for Justice. My right hon. and learned Friend makes a powerful point: we need to ensure that prison is there primarily for the purposes of punishment, the protection of the public and turning around lives in order to prevent reoffending. We have to be absolutely clear that people who ought to be in prison must be in prison and properly housed there, and we must work to turn their lives around. He has put his finger on the fact that we have inherited a very challenging estate. Almost a quarter of our prisons are buildings that stretch back to the Victorian era or, in some cases, to the late 18th century. That causes unbelievable problems of maintenance, and it contributes to problems of overcrowding and to issues of decency. All of that gets in the way of our ability to provide the conditions that allow us to turn around prisoners’ lives. Therefore, it unfortunately gets in the way of preventing reoffending, which, ultimately, is the best way of protecting the public.

Worboys Case and the Parole Board

Lord Clarke of Nottingham Excerpts

Wednesday 28th March 2018 Commons Chamber

[Mr Gauke]

I agree with the hon. Gentleman regarding transparency. I am pleased that there is cross-party consensus on the need for increased transparency of Parole Board decisions. That should not undermine Parole Board independence, which is important. I hope to move swiftly to change systems in order to ensure that the reasons that the Parole Board has reached a decision become available to the victims. I hope that that will be in place shortly.

The hon. Gentleman touched on the licence conditions. In a way, this is not necessarily as much of an issue as it was. It had been determined that Worboys would be electronically tagged and excluded from London. That may or may not be an issue in the future, depending on future Parole Board decisions.

On the dossier that was provided by the National Probation Service—and, therefore, my Department—for the hearing that occurred on 8 November last year, it is the case that there may well have been information that should have been included in the dossier and that was not provided, but it is worth pointing out that it is the responsibility of the Parole Board to satisfy itself that an offender is no longer a risk to the public. The judgment of Sir Brian Leveson was that the Parole Board failed to probe that evidence sufficiently, as it should have done. I reiterate that the National Probation Service opposed the release of John Worboys.

I made no secret of the fact that I was considering whether to take a judicial review, and I set out in my earlier remarks the reasons why I did not bring that forward. The reality was that the victims were in a better position than me to bring a successful case. It is important that we ensure that when the Parole Board reaches a conclusion that meets certain criteria, there is an ability for it to look again and examine whether the relevant panel has performed its duties as it should have done. Sadly, that is not what happened in this particular case, and that is the issue that we need to fix for the future.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I welcome Sir Brian Leveson’s judgment. The victims have obviously got the justice that they were seeking. Does my right hon. Friend accept that it would have been absolutely scandalous if he, as Justice Secretary, had ignored the legal advice that he got, which sounds to have been perfectly sensible on the basis of facts available to him? It would be a very bad day if Ministers started intervening in criminal sentencing cases in response to campaigning, and did not judge them objectively according to the rule of law and the public interest.

While implementing these extremely welcome proposals, which are obviously needed in the light of all this, would my right hon. Friend make sure that the Parole Board and its panels are not undermined when they carry out properly their extremely difficult task? The Parole Board is often asked almost impossible questions, and we cannot have people making any judgments except on the basis of the best judgment that they can make in the public interest. Criminal sentencing must never be simply a question of campaigning and responding to popular pressure.

[Mr Gauke]

I am grateful to my right hon. and learned Friend, who is also a distinguished predecessor in my post. He is absolutely right on both counts. In terms of whether I took action or not, I thought that it was very important to test the legal arguments. As I made clear on 19 January, I was not going to stand in the way of others and, indeed, others may have been better placed to bring that case. I looked carefully at the advice I had received and based my actions on that advice.

My right hon. and learned Friend’s second point is also important. There were failures in what the Parole Board did, including not probing sufficiently and not being sufficiently inquisitive. We must, however, accept that the Parole Board makes thousands of decisions every year that often involve difficult judgments, and it is not always necessarily going to get it right, but it is not the role of politicians to interfere and second-guess those decisions. We do, though, have a role in ensuring that we have a system in place with clear guidance, clear training and the right people. We clearly need to do some work on that, and I have set out some proposals today.

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—

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[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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: 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.

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[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.

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[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: 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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.]

--- Later in debate ---

[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

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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).