Legislating for the Withdrawal Agreement

Matthew Pennycook Excerpts

Monday 10th September 2018 Commons Chamber

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

It is a pleasure to take part in this debate, and I very much welcome the fact that we are having it.

I suspect that many right hon. and hon. Members, particularly those who took part in its Committee stage, will share my view that the year-long passage of the European Union (Withdrawal) Act 2018 was perhaps the most demanding legislative exercise that Parliament has undertaken in recent decades. The process of overlaying and amending that byzantine piece of legislation with the proposed EU withdrawal agreement Bill will be equally, if not more, complicated and onerous. That is why we welcome the publication of the White Paper before the summer recess and the opportunity for further debate today on the Government’s early expectations for that Bill.

I want to touch on three distinct issues. The first is the relationship between the proposed Bill and the recently enacted European Union (Withdrawal) Act. The second is what is not covered in the White Paper: the parts of the withdrawal agreement that remain unresolved but which will need to be resolved if we are to avoid crashing out of the EU with no deal, which would be the hardest and most damaging of departures. The third is the political declaration on the future framework and the type of document that the Opposition believe will be required for Parliament to make an informed judgment about whether the final deal should be supported.

I know that many Members want to contribute, so I do not intend to cover all the parts of the withdrawal agreement made at the March European Council, such as the negotiated financial settlement or the issue of citizens’ rights, which the Minister touched on. We will, of course, fully scrutinise the Bill as it applies to those issues when it is published and the technical details become clear.

[Chris Bryant]

There is an issue there, is there not? Drafting legislation normally takes time. There are only so many draftsmen and women in this country, and they tend to take their time. Even a very simple Bill can take months to draft. The idea that we would consider a Bill only days after the negotiation had been settled is for the birds, is it not? It is inconceivable that we will get legislation through both Houses before the end of March.

[Matthew Pennycook]

My hon. Friend makes a good point. It will be difficult, which is why it is imperative that the Government bring back a negotiated agreement at the earliest opportunity. I hope that Ministers will confirm that it remains the Government’s intention to do so after the October EU summit. If the passage of the withdrawal Act is anything to go by, the Bill may be in trouble time-wise.

[Stephen Doughty]

My hon. Friend has set out some clear and important tests to be met. Will he join me in welcoming the news today that the general secretary of the TUC, Frances O’Grady, has been very clear about the TUC’s position and that of trade unions across the country given the absolute shambles and chaos that we are seeing from the Government, let alone the time constraints that my hon. Friend the Member for Rhondda (Chris Bryant) rightly pointed out?

[Matthew Pennycook]

Yes, I do welcome today’s announcement from the TUC. We have been clear that in the event of no deal, all options must be on the table. As I think I said in a debate just before the summer recess, we have to remember what no deal would mean: it would be a complete failure, in two years, of the Government’s entire Brexit policy. In that situation, as I am sure my hon. Friend appreciates, we would be facing something akin to a constitutional crisis. At that point, every option must be on the table.

[Several hon. Members rose—]

[Matthew Pennycook]

I am going to make a little progress, if that is okay.

Let me turn to the relationship between the proposed withdrawal agreement Bill and the recently enacted European Union (Withdrawal) Act, which received Royal Assent on 26 June. Arguably, the most striking feature of the Bill that is the subject of the White Paper is the extent to which it will modify the European Union (Withdrawal) Act that this House and the other place spent more than 250 hours debating, and the fact that in many cases it will do so before the relevant provisions of that Act come into force. Of course, that partly reflects the degree of conditionality and uncertainty that any Government would face in attempting to legislate for Brexit, but in some cases it simply reflects the fact that this Government, scrambling desperately to keep their extreme Brexiteers onside, chose on more than one occasion to prioritise political gimmickry over the dictates of common sense. Such choices were exemplified by the Government’s decision last November to fix an exit day in the European Union (Withdrawal) Act, and in so doing to restrict needlessly the sensible and necessary degree of flexibility that they had originally proposed in respect of an exit day for the purposes of that legislation.

No doubt many Government Members, still intoxicated by the fact that a symbolic reference to 11 pm on 29 March 2019 has been written into UK law, will defend that decision, but the fact is that the proposed Bill touched on in the White Paper will strip that reference of any legal significance. As paragraph 56 of the White Paper makes clear,

“EU law will continue to have effect in the UK in the same way as now”

until the transition period ends on 31 December 2020. Even the most ardent Brexiteers on the Government Benches cannot fail to note the irony that the Government’s flagship “great repeal Bill”, as the European Union (Withdrawal) Act was initially labelled, will not only preserve EU law in its entirety as of 31 December 2020, but will only emblematically repeal the European Communities Act 1972 at the point at which the UK ceases to be an EU member state.

[Sir William Cash]

I do not know whether the hon. Gentleman was in the House at the time, but it may be of some interest to him that I made this very point on 18 July, just as the House was about to rise for recess, because there is a real inconsistency. After all, the White Paper came out on 12 July, yet the European Union (Withdrawal) Act, including the repeal of the 1972 Act in section 1, went through only around 14 days before.

[Matthew Pennycook]

The hon. Gentleman is right, but it is an inconsistency of the Government’s own making, because they chose symbolically to repeal the ECA in the European Union (Withdrawal) Act, and in this new Bill they are going to unpick the very legislation that we passed because, as paragraph 60 of the White Paper makes clear, the ECA will be “saved” for the duration of the implementation period and will continue to be legally effective until 31 December 2020. What is saved is not merely select parts of the ECA, but almost all its key provisions. Chapter 3B of the White Paper makes it clear that the Bill will ensure that throughout the transition, the EU doctrines of direct effect and primacy will continue to apply, including with regard to EU law that comes into force after 29 March next year; the legal basis on which most EU-derived domestic legislation stands will be preserved; and, as paragraph 80 of the White Paper sets out, the full role of the European Court and the binding nature of its rulings will be preserved.

The White Paper argues that repealing the ECA in name only, while in practical effect preserving its effect throughout the transition, is the most effective way to provide continuity and certainty to business and individuals. With the European Union (Withdrawal) Act and its fixed exit day already enacted, that may well be the case, but it is difficult to see why the flexibility provided for in the original drafting of the European Union (Withdrawal) Bill, which allowed for Ministers to determine different exit days for different purposes, would not have achieved the same end, with the added benefit of saving us all a great deal of parliamentary time. The whole farcical saga highlights how when it comes to Brexit-related legislation, the Government have an unhealthy tendency to indulge in short-term tactical gimmicky at the expense of what is sensible and what is in the best interests of the country.

[Vicky Ford (Chelmsford) (Con)]

The hon. Gentleman has welcomed the White Paper and encouraged the Government to come forward and finish the negotiations as quickly as possible. Will he disclose whether, if those negotiations are completed, he will vote for the outcome? If not, is he not the person who is guilty of political gimmickry, rather than Government Members?

[Matthew Pennycook]

I am well used to the hon. Lady asking questions that are slightly out of left field, but I fail to see how the Opposition can give an opinion on whether we will back a deal about which we do not know the full details and which is still being negotiated. We will faithfully apply our six tests when the deal comes before us, as we all hope it will.

The political gimmickry must stop, and when we approach this next Bill, we hope that the Government will focus on what is the most effective way to legislate for the issues in hand, but there is good reason to fear that that same short-termism—a myopic approach driven by whatever will buy Ministers a few days or weeks of respite from the predations of the European Research Group—could stand in the way of a sensible resolution to those parts of the withdrawal agreement on which no agreement has yet been reached. It is to that issue that I shall now turn.

As Members will know, several aspects of the agreement remain unresolved, of which the two biggest are the mechanism for settling future disputes and the Irish border. It is on the second of these that I shall focus, because the issue of how we avoid a hard border on the island of Ireland is clearly now the major sticking point to concluding a withdrawal agreement. We can talk as much as we like today, and on future days, about how Parliament will legislate for a withdrawal agreement, but if the issue of the Irish border is not resolved, there will not be a final deal to legislate for.

[Catherine West]

Does my hon. Friend agree that it comes down to what happened last Christmas in relation to the Northern Ireland question, and that we are again getting obfuscation after obfuscation? We are never getting to the point of what the actual deal for Northern Ireland is.

[Matthew Pennycook]

My hon. Friend is absolutely right. As I shall come on to say, we need urgent, rapid progress on this issue, given the time constraints that we face.

Many Brexiteers—although, I must make clear, not all—continue to belittle the Irish border issue on the grounds that it is a problem that has been exaggerated by nefarious Brussels bureaucrats or those at home who seek a close future relationship with the EU. Having initially dismissed the issue as posing no threat to the peace process, they now seek to talk down the Good Friday agreement. Their behaviour is not only irresponsible, but misunderstands the significance of the open border as the manifestation of peace on the island of Ireland. The border is a deeply political problem, not just a technical problem. It is about not merely how we avoid a hardening of the border, but how we ensure continued co-operation in a range of areas—economic and social as well as political—as set out in the Good Friday agreement.

Anxiety on both sides of the border and across all communities about the risk of no deal, or the failure to agree a legally binding backstop, is very real, and it is growing. Of course, the best means of solving the issue would be to secure agreement on a future relationship that is compatible with protecting north-south co-operation and avoiding a hard border, thereby ensuring that any legally binding backstop that might be agreed will never be used, yet the ideological red lines that the Prime Minister outlined in her Lancaster House speech are fundamentally incompatible with securing a future relationship of that kind.

[Peter Grant (Glenrothes) (SNP)]

Does the hon. Gentleman share my frustration that although the UK Government agreed in December last year that their primary responsibility was to introduce specific proposals for the Irish border, in the intervening period we have seen next to nothing of substance from them? All they are doing is throwing stones at the partly completed proposal that the EU has had to introduce out of sheer desperation because the UK has offered nothing in return.

[Matthew Pennycook]

The hon. Gentleman is absolutely right. In fact, over recent weeks I have seen some of the most ardent Brexiteers—people who wanted to take back control of our borders, incidentally—saying that they would just leave the border completely open. They are not going to be the ones who erect infrastructure. I welcome the fact that the Prime Minister has made it clear that because we chose to leave, the onus is on the UK Government, as well as the EU27, to come up with a solution that avoids any hardening of the border.

The Chequers proposals were designed to move the negotiations on, but it is patently obvious that they cannot command a majority in this House and would not be acceptable to the EU without further significant modifications of the kind that the Prime Minister cannot deliver because of the bitter divisions in her own party. The negotiations on this issue are at an impasse. Despite a summer of talks, little progress has been made on agreeing a legally binding and operable backstop. It is imperative that progress on this issue is now made and made quickly. With the second week of October being the effective deadline for sign-off at the October EU summit, there are now only a matter of weeks before the issue must be resolved. Both sides have an obligation, based on the solemn commitments they have given, to defuse the tensions that have built up around this issue, and both sides must now redouble their efforts to deliver a solution. What would make a legally binding backstop easier to agree, because it would ensure that it would be less likely to be used in the future, is a very clear signal on what the future relationship is likely to look like. That point was made at the end of last month by the Irish Minister for Foreign Affairs.

That brings me to the final issue I want to touch on before drawing my remarks to a close—the framework for the UK’s future relationship with the EU, or, more specifically, the political declaration that will accompany the divorce settlement if agreement is reached across all outstanding areas. Arguably, it is the contents of that political declaration, more than the details of the withdrawal agreement itself, that the House will focus on when it comes to pass judgment on the deal that we all hope—genuinely hope—the Government are able to conclude and put before us later this year.

Madam Deputy Speaker, you may have noticed that the notion of a so-called blind Brexit has received a great deal of attention over recent weeks, yet it has always been a distinct possibility. That is partly because there is every incentive for the Government, practically and politically, to bring back a withdrawal agreement that contains a political declaration that is highly ambiguous. To do so would be unacceptable. A vague political declaration on the future framework would not be a solution to the problems that we are grappling with; it would be tantamount to avoiding those problems altogether. As the hon. Member for East Dunbartonshire (Jo Swinson) said earlier—she is not in her place now—that would leave the UK in a far weaker position during the transition than we would otherwise be, and we on the Opposition Benches would not accept that.

[John Redwood]

The hon. Gentleman is making an extremely important and interesting point. What does the Labour party think are the minimum strong clear commitments that would be required to make the political declaration acceptable?

[Matthew Pennycook]

I hope that the Minister will agree with us on this. We want a political declaration that is extensive, precise and substantive. When this House votes on the final deal, it must have a very clear signal of what the future relationship will be like—not a vague statement that allows us to crawl over the line to 29 March next year without any sense of where our relationship will end up in future. As I have said, the Opposition would not accept such a vague document.

When the withdrawal agreement and the political declaration are put before us, we will faithfully apply the six tests that we set out in March of last year. Let me be very clear: those six tests cannot, in our eyes, be met simply by failing to address them altogether. The political declaration on the future relationship must be sufficiently detailed and clear that hon. and right hon. Members are able to arrive at an informed judgment about whether the final deal and the future relationship are good enough for the country and for their constituents.

I appreciate that the negotiations are ongoing and that the drafting of the declaration is not yet under way, but in his summing up, I hope that the Minister will provide greater clarity on this matter. In particular, will he provide the House with a greater sense of the type of political declaration that the Government will be pushing for at Salzburg, an idea of the level of detail the Government believe that it needs to contain, and confirm, or reaffirm, that the Government still require a document that is both precise and substantive?

In conclusion, as I said at the outset of my speech, the Opposition welcome the White Paper as well as the opportunity to debate in more detail the legislation that we all hope will be laid before us later this year, but we urgently need a change of approach and pace from the Government. When it comes to the forthcoming European Union (Withdrawal Agreement) Bill, we hope that we see less of the short-term political gimmickry that we have seen in the past and more serious consideration of what is the most effective way to legislate. To that end, we call on the Government to allow pre-legislative scrutiny of those sections of the forthcoming Bill that relate to aspects of the withdrawal agreement that have already been agreed.

When it comes to the crucial issue of the Irish border and the default backstop, we need the Government to do everything they can to defuse the tensions that have built up around the issue and play their part over the coming weeks in delivering a solution. Finally, when it comes to the political declaration on the future framework the Government need to press for a document of sufficient precision and detail to allow the House to make an informed judgment.

The clock is ticking. The Government must shift their focus away from the deep divisions in their own ranks and towards what is needed to secure a deal that will work for the country. Urgent progress is essential not only to secure a withdrawal agreement, but, as my hon. Friend the Member for Rhondda (Chris Bryant) said, to ensure that full and proper scrutiny of the legislation that will be required to enact it.