European Union (Withdrawal) Bill

Marcus Fysh Excerpts

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

[Joanna Cherry]

I am grateful to my hon. Friend for bringing this matter to the Floor of the House. I was made aware of it just before I got to my feet. If the Financial Times report is correct that the Government are going to give special deals for certain professions, that will come as a great shock to the other professions that will not get such a special deal, and a particular shock to cross-party colleagues in the Scottish Parliament who have asked for a separate deal on immigration in Scotland, as have Unison, the chambers of commerce in Scotland and the Institute of Directors. I look forward to the Secretary of State for Exiting the European Union coming to the House to explain what is going on here.

To returning to the issue of legal certainty, the Institute for Government looked carefully at different tests that might be put on this Bill to direct the courts, and expressed the view that if Parliament passes the buck on this question to the judges, it will leave the judges open to fierce political criticism. We have already seen the sort of fierce political criticism that the judges got earlier this year, and regardless of the different views we might have about the British constitution, all of us can probably accept that the independence of the judiciary is a fundamental part of any constitution that recognises the rule of law. We perhaps do not have to look too far from home in the EU at present to see a judiciary that is not independent, but I digress.

We need an independent judiciary in this country, and we have one, but it has to be protected from criticism because judges cannot go into print to defend themselves when criticised. We must provide the courts with a specific legal test on the face of the Bill governing the treatment of Court of Justice case law after Brexit, and that is what my amendment 137 seeks to achieve.

[Mr Marcus Fysh (Yeovil) (Con)]

Does the hon. and learned Lady agree that one aspect of the legal certainty that the Government should consider is that, as our relationship with the EU evolves, we do not want our judges to have to make decisions that might affect our commercial policy, or indeed our diplomatic policy, towards the EU?

[Joanna Cherry]

My amendment 137 seeks to ensure that:

“When interpreting retained EU law after exit day a court or tribunal shall pay due regard to any relevant decision of the European Court.”

The Minister questioned the term “due regard”, but it is not unknown to international law. The Lugano Convention on the mutual recognition on enforcement of judgments, to which EU and non-EU states are signatories, talks about paying “due account”, but I have followed the recommendation of the organisation Justice that it is clearer and better English to talk about paying “due regard”. Under the Human Rights Act 1998, we have a duty to take account of decisions of the Court of Justice, so paying “due regard” to taking account of such decisions is not a phrase unknown.

This amendment is not a Trojan horse designed to continue references after Brexit, and I say that as someone who does not want Brexit to happen. It is designed to create certainty for individuals, businesses and litigants, and also for the judiciary. It would leave it open to British courts to disagree with the Court of Justice’s interpretation, even if its case law was relevant to the case. It would not—as the Government’s current draft does—give an unfettered, politically controversial discretion to consider or ignore Court of Justice decisions as our courts saw fit.

The test set out in my amendment has three advantages. First, it would create legal certainty for individuals and businesses. Secondly, it would provide political cover for the courts. Thirdly, it seems to fit with the preference of the judiciary, who want a clear instruction. In recent evidence to the House of Lords Constitution Committee, Lady Hale, the new President of the Supreme Court, said:

“It should be made plain in statute what authority or lack of authority, or weight or lack of weight, is to be given to the decisions of the Court of Justice of the European Union after we have left, in relation both to matters that arose before we left and, more importantly, to matters after we leave. That is not something we”—

she means “we, the judges”—

“would like to have to make up for ourselves, obviously, because it is very much a political question, and we would like statute to tell us the answer.”

In my submission, under my amendment, statute would tell the judges the answer.

That is not just my view. The Institute for Government looked at the various options and concluded that the wording that I now propose would license courts in the UK to refer to the Court of Justice’s reasoning in future judgments without making those Court of Justice judgments binding on the UK courts—

European Union (Withdrawal) Bill

Marcus Fysh Excerpts

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

[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.