European Union (Withdrawal) Bill

Maria Miller Excerpts

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

[Dominic Raab]

I thank my hon. Friend for that, and I shall come to that point a little later. The basic point that I respectfully make to the House at the outset is that the various clauses and amendments should be judged according to those basic strategic objectives: taking back control over our laws and making sure that there is a smooth legal transition, which I believe is my hon. Friend’s point.

Clause 6 serves both objectives. It sets out how, once we have taken back control over EU law, retained EU law should be interpreted on and after exit day. It makes it clear that once the UK leaves the EU, domestic courts will not be able to refer cases to the European Court—an affirmation of the supremacy of our own courts and our own legal order.

[Mrs Maria Miller (Basingstoke) (Con)]

My hon. Friend is making a powerful case. The Select Committee that I chair has looked at the implications for equality law. At the moment, individuals can take cases to the Court of Justice of the European Union and gain decisions there that may have a great impact on their lives, but they will not be able to do that in the future. How should the Government look further at how domestic courts might be able to assess the compatibility of UK law with equality law, to make sure that in the future we do not have any problems in the way our law develops in this area?

[Dominic Raab]

First, let me thank my right hon. Friend, the Chair of the Women and Equalities Committee, for her intervention and for highlighting this important issue constructively. I have looked carefully at the report of her Committee and had discussions with the Equalities Ministers on the points she has made, so today I can give her the reassurance, and tell the House, that we have commissioned work to be done on an amendment that the Government will table before Report. It will require Ministers to make a statement before the House in the presentation of any Brexit-related primary or secondary legislation on whether and how it is consistent with the Equality Act 2010. I hope that gives her the reassurance she needs that the Government are serious about addressing the legitimate point she has raised.

The point I was making before my right hon. Friend’s intervention was that once the UK leaves the EU, the domestic courts will not be able to refer cases to the ECJ. Clause 6 also provides that domestic courts and tribunals will not be bound by or required to have regard to ECJ decisions made after Brexit.

--- Later in debate ---

[Mrs Miller]

The debate on this string of amendments includes considering clause 6 stand part. I was extremely pleased that, after my intervention earlier, the Minister indicated that the Government intend to bring forward an amendment on Report to take up what I believe is an important recommendation made by the Women and Equalities Committee in the report we published in February. The recommendation is to have a mandatory ministerial statement of compatibility with the Equality Act for all Bills and secondary legislation related to exiting the EU.

This is important because the Government have set out very clearly that they do not want any backsliding on our equalities agenda or, indeed, our equalities law when we leave the EU. With the sort of amendment that my hon. Friend mentioned, we will have more of a guarantee that that will actually happen. The EU White Paper published in February says very clearly that the Government want to ensure that

“the same rules and laws will apply on the day after we leave the EU as they did before.”

This approach will preserve the rights and obligations that already exist in the UK under EU law and provide a secure basis for the future.

Certainty is needed in relation not only to the laws themselves, but to the frameworks within which those laws will operate. The Select Committee’s inquiry into exit from the EU found that things will change for individuals after we leave the EU because the UK courts will no longer be able to disapply law that is found to be incompatible with equality laws, as is currently the case with the CJEU. The UK will lose the particular function of the CJEU as an arbiter of incompatibility with the principles of equality. For the Government to achieve the important objective that they have set out of protecting equality rights as they are now, we will have to do more than simply transpose the legislation; we must also provide such additional functionality.

This really matters to our constituents. It really matters to women such as Carole Webb, who was fired by her employer for being pregnant. She had her case heard in the CJEU, and her rights were enforced. It really matters to mothers such as Sharon Coleman, who just wanted to be able to work more flexibly to care for her disabled son. She had her case heard by the CJEU, and her rights were enforced. We need to make sure that this continues in the future.

The very sensible and practical recommendation put forward by the Women and Equalities Committee proposed a simple solution for the Government. It is that a statement of compatibility should be published by Ministers when any statutory instrument or Bill related to EU withdrawal is published to explain why the proposals are or are not compliant with the Equality Act. That would mirror the provisions set out in sections 19 and 4 of the Human Rights Act 1998. This would make it clear to the courts that they must take account of the Equality Act, and that if legislation was incompatible, the courts could indeed make a declaration of incompatibility, which would have to be rectified by the Government, as is now the case.

This recommendation is important because, as I have said, it will enable the Government to adhere to what they have set out as their policy. It will fill a missing gap that currently is filled by the Court of Justice of the EU, and it will give the courts in the UK the potential power to make declarations of incompatibility. For those looking to the public sector equality duty to partially fill that gap, I would point out that we set out very clearly in our report that this duty does not apply to primary legislation, and that is why such a change is needed.

[Mrs Helen Grant (Maidstone and The Weald) (Con)]

My right hon. Friend is making a powerful case, as always, for equality. Does she agree that co-operation on issues such as female genital mutilation, human trafficking and other gender-based crimes should also be included in the exit agreement?

[Mrs Miller]

My hon. Friend has a great deal of experience in those matters, and I am sure that Ministers sitting on the Front Bench are looking at them very closely. They will be as aware as us that, as we leave the EU, the complexities, particularly regarding equalities, need careful attention. When Government Equalities Office Ministers came before the Women and Equalities Committee recently, I was pleased that they were prepared to discuss Brexit issues. I hope that in future Brexit Ministers will also come before the Committee to discuss the issues set out by my hon. Friend.

I thank my hon. Friend the Minister for taking the issue very seriously indeed. I know that he has a lot on his plate, but he has taken the time to look at the issue in detail. He should be applauded for that. I look forward to seeing the fruits of his labour on Report.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I want to speak briefly in support of amendment 137, tabled by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), who spoke so persuasively about the need to strengthen and clarify clause 6, particularly subsection (2).

If, utterly regrettably from my point of view, the UK is to leave the EU, it is important not only that there is a functioning statute book on exit day, but that it is as accessible and comprehensible as possible. The ordinary citizen must be able to understand their rights and obligations; businesses need to have clarity about the rules under which they will be trading and competing; and our courts require clear guidance about Parliament’s intentions. The rule of law and our economic interest require that. As it stands, however, there is still much work to do to achieve those aims, and that includes rectifying the lack of clarity in clause 6.

My starting point is clause 6(3), about which I do not think there is any dispute. Clearly, unmodified retained EU law should be interpreted in accordance with retained case law and principles of EU law. That is necessary to ensure that the statute book applies in the same way after exit as it did before. Immediately after that, however, we get into sticky territory, namely the status of post-exit European case law.

In the first months and years after exit, few cases in the CJEU will concern new EU rules that have nothing to do with the UK. Most will continue to relate to rules that existed before exit and that will in fact have been incorporated into the UK statute book by this Bill. In essence, such decisions by the CJEU are about how the law always was and should have been applied, including immediately prior to exit.

With apologies for moving away from highbrow discussions about the rule of law and the sovereignty of Parliament, I want to talk about the hypothetical EU widget regulations. If the EU widget regulations come into effect prior to exit, and a decision of the CJEU shortly after exit clarifies that the regulations do indeed apply to a new and cutting-edge form of six-sided widget, that decision would actually tell us and clarify what retained EU law was on Brexit day—the point at which it was incorporated into our laws. Yet the Bill appears to fudge or dodge the issue of whether such a ruling should be followed or even whether it should be given any consideration at all. Parliament is in danger of passing the buck to judges on what is actually a political decision.

Unlike his German counterpart, the UK manufacturer of a six-sided widget is unclear about where he stands and, importantly, so are our judges. Given that the widget directive is part of retained law, there is a strong argument that this Parliament should say that if the CJEU confirms in its judgement—despite it being handed down after exit—that when we incorporated the regulations they did apply to a six-sided widget, that should also be part of retained law in the United Kingdom, unless there is good reason to the contrary. That would seem sensible and desirable from a legal theory point of view and, much more importantly, from a practical point of view. If we are to make trade and competition with the EU as simple as possible, surely it makes sense for exactly the same rule, one still found in an EU regulation and one incorporated by the Bill into domestic law, to be interpreted in the same way unless there are very good reasons to the contrary. However, all clause 6(1) says is that a court or a tribunal is not bound by post-Brexit CJEU decisions, and clause 6(2) merely says it can “have regard to” such case law

“if it considers it appropriate to do so.”

Lord Neuberger says that that is not very helpful guidance for judges. Neither is it helpful for the six-sided widget manufacturer, who needs to know whether he must comply with the widget regulations and is not sure if domestic courts will follow the CJEU in deciding whether it does. Indeed, we might even find that courts in different parts of the United Kingdom could come to different decisions about whether to follow the CJEU’s decision on the widget regulations. Parliament has to do much better.

Amendment 137 provides alternative options. If there are reasons why domestic courts should not want to follow a CJEU ruling, the court could quite simply have regard to and then decline to follow the Court’s judgment. There could be very good reasons for that to happen, for example if Parliament had already decided to put in place its own separate statutory regime for six-sided widgets. Ultimately, if Parliament decides after a particular judgment by the CJEU that it wants to change retained law to take a different course, it can of course do that. However, there are many more rules where it would surely be sensible for this Parliament to leave them in place as they are and to seek to ensure consistency of application between the United Kingdom and the European Union so far as that is possible.