Probation Reform
Oliver Letwin Excerpts(4 years, 11 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Gauke
First, let me make the point about costs. I come back to the point that I made earlier, which is that our expenditure with community rehabilitation companies has been considerably lower than had been forecast—£1.4 billion lower. That takes into account the £467 million to which the hon. Lady referred, which was there to ensure that we had operational stability. As we move on to the new system, she is right to say that 2021 will soon be upon us. We do need to focus very heavily on ensuring that procurement works well, that we make use of the voluntary sector and that there is proper competition so that those who can contribute to this process can do so properly, and we are very much focused on that.
Sir Oliver Letwin (West Dorset) (Con)
My right hon. Friend is absolutely right to have done what he has done. There is no doubt that, in many cases, the CRC contract did not achieve the intended aims. I was glad to hear that he still envisages a significant role for the voluntary sector and even, in some cases, for the private sector. I hope that he can assure us that the basic principle of the organisation that is employed to engage in rehabilitation, which is what we so sorely lacked under the previous regime, is fulfilled and that evidence is garnered of whether a particular voluntary or private operator is producing results and that, where they are, that model is replicated.
Mr Gauke
My right hon. Friend makes a very important point. I am keen to ensure that we have the innovation that we need, and I have talked about the innovation fund. It is very important that we are led by the data and that where good practice is identified it is disseminated so that it can be taken up elsewhere in the system. That is why it is helpful to have a diversity of supply. Under the old probation trust system, there was a reluctance on the part of many probation trusts to make use of the voluntary and private sectors. We do not want to go back to such a system. None the less, a unified model for offender management is a sensible way forward.
European Union (Withdrawal) Bill
Oliver Letwin ExcerptsWednesday 13th December 2017
(6 years, 4 months ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 13 December 2017 - (13 Dec 2017)
Sir Oliver Letwin (West Dorset) (Con)
I just want to clarify whether the hon. Gentleman means what I think he means by what he just said. Does he mean that if the House did not approve a withdrawal agreement, his view is that the Government should have to ask for an indefinite extension of article 50 until the House has approved a set-up that it finds acceptable?
Matthew Pennycook
I do not think that is necessarily the case, for several reasons. First, there is no reason why a withdrawal agreement cannot be reached, perhaps even sooner than October 2018—
Matthew Pennycook
I think it will take a long time. The Minister can confirm this, but I assume the Government would be pleased to conclude the withdrawal agreement before October 2018, if possible. However, there are several things that might happen, one of which is that the Government go back to the negotiating table and try to improve on the deal. I cannot see what is unreasonable about filling in the gaps or asking for revisions, were that the expressed will of the House.
Sir Oliver Letwin
I am grateful to the hon. Gentleman for giving way yet again. I think that he has just confirmed not that it would necessarily follow that the Government would have to extend indefinitely, but that it would be possible that the Government, in his view, should have to extend indefinitely because this House had not agreed to the withdrawal agreement. In other words, he is saying, is he not, that, if this House does not approve the terms on which we leave, until and unless it approves the terms on which we leave, we should not leave. Is he saying that, or not?
Matthew Pennycook
What I am saying is that there is any number of options that might happen, but let us bear in mind there is a period after October 2018 for the Government to return to the negotiating table and seek to revise or improve the terms. It does not necessarily mean an extension of article 50—I know that the right hon. Gentleman is trying to draw me down that path.
Mr Grieve
Yes. If, indeed, we were leaving with nothing further to do, that might be a good point. But it seems to be a pretty universal view, even on the Government Benches—although this perhaps does not apply to my hon. Friend—that simply leaving to jump off the top of the tower block is not the best thing to do. Therefore, there will need to be primary legislation to implement the undoubted new constitutional order that we will have after 29 March 2019.
Alex Chalk (Cheltenham) (Con)
Will my right hon. and learned Friend give way?
Mr Grieve
May I just make a tiny bit more progress?
As the Government’s position has shifted, they have come up with a written ministerial statement, which seems accurately to reflect the right direction of travel. But the difficulty is that clause 9 is entirely incompatible with what the Government have set out.
Sir Oliver Letwin
I happen to agree with my right hon. and learned Friend that it would be undesirable for us to leave without an agreement. Indeed, I think that the Government agree with that. But I will go back to the point made by my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) a moment ago. Does my right hon. and learned Friend agree that, in the event that it were not possible to reach a further agreement, it would then be the case that the actions of Parliament already taken—including in triggering article 50—would constitute a proper answer to the Supreme Court’s point that Parliament, and Parliament alone, can remove us from the EU?
Mr Grieve
Yes, I think I agree with my right hon. Friend that the action of Parliament in triggering article 50 would do that. But it is not, I think, the intention of the Government to do any such thing, and never has been. Indeed, if it is the intention of the Government to do such a thing, I hope very much that they will tell me as soon as possible, because I think I might be withdrawing my support from them.
Hilary Benn
I am still wrestling with the concept of a red, white and blue Brexit, and I did not find it very enlightening.
The second answer was, “No running commentary,” but that eventually had to give way to the Lancaster House speech and a White Paper. Then we asked, “Will Parliament get a vote?” Almost exactly a year ago, when the Prime Minister last appeared before the Liaison Committee, I asked her that question. She was unwilling to give me a commitment on that occasion, but we all pressed, and in the end the Government conceded that there would be a vote.
We argued that there would need to be separate primary legislation to implement the withdrawal agreement, but what did the Government do? They produced this Bill, which says, “No, no. We’ll just do it all by statutory instrument.” That was until amendment 7 appeared on the horizon, at which point the Government changed their mind. If the Committee insists, as I hope it will, on amendment 7 later today, that will be because of our experience of the Government’s handling of the Bill so far. They have not acted in the spirit of seeking consensus, even though the Prime Minister said earlier that that was what she wanted to achieve.
The final point I want to make is simply this. Parliament has no intention of being a bystander in this process. We intend to be a participant, as I have said on a number of occasions, because this decision affects every part of the country, every business and every family. Today’s debate and vote are all about control, which must ultimately rest not in Ministers’ hands but in our hands. It is up to us to make sure that that happens.
Sir Oliver Letwin
Until now, with the exception of some interventions, I believe that all contributions have been, in one way or another, in support of amendment 7 and its correlative amendments. I hope, Sir David, that you will allow me a little leeway with timing to address my points, because I do believe that the debate has so far been one-sided.
I want to start by talking about the speech made by the right hon. Member for Leeds Central (Hilary Benn), who was characteristically good-humoured and articulate, and the fine speech from the Opposition Front-Bench spokesman, the hon. Member for Greenwich and Woolwich (Matthew Pennycook). I will then turn to amendment 7 and the speech made by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). They all brought the cat out of the bag very well. As I will explain in a moment, I distinguish between what the Opposition are after and what my right hon. and learned Friend is after.
The right hon. Member for Leeds Central and the Opposition spokesman in effect said this. The House of Commons voted by a vast majority for a referendum, the people by a narrow majority voted to leave and the House of Commons voted by a vast majority to trigger article 50, which says:
“The Treaties shall cease to apply…from the date of…the withdrawal agreement or, failing that, two years after the notification”.
That has been accurately described by some on the EU side of the negotiations as an inevitable process to leaving, but the Opposition say that the House should be capable of telling the Government that they must seek to reverse the process by seeking—not necessarily by obtaining, because we cannot guarantee that they would obtain—
Sir Oliver Letwin
Yes, that is what the right hon. Gentleman said. The logic of what he was saying carries us remorselessly there, and I will come on to explain why.
Sir Oliver Letwin
The right hon. Gentleman cannot continue to shake his head with conviction. His logic carries him there because he defines a meaningful vote as one that gives the House the capacity to reject either a deal it does not like, or the possibility of exiting with no deal. This is not a matter of opinion or value; it is a matter of logical fact. The only alternative to accepting a deal that we do not like or refusing to accept no deal is to leave the whole matter aside and not exit the Union. We either exit without a deal or we exit with a deal. If the deal is rejected but the Government are told that we cannot leave without a deal, we cannot leave.
Sir Oliver Letwin
I will, of course, give way to the right hon. Gentleman in a moment. I just wanted to expose the logic very clearly, because there are no other logical possibilities. I challenge him to explain what the other possibility is.
Hilary Benn
I set out—very clearly I thought—in my speech what the other possibility is. For the avoidance of any doubt on the right hon. Gentleman’s part, I have said repeatedly in this House that we are leaving the European Union at the end of March 2019—and, indeed, I voted for the article 50 legislation. I was discussing today the terms on which we will leave. It is perfectly possible for Parliament to look at the terms and say, “We do not like them; we would like different ones,” and to give the Government different instructions, provided that there is time. That was my point.
Sir Oliver Letwin
Of course it is possible for the House of Commons to tell the Government that it does not like the terms, and of course it is possible for the Government to go back and ask for the terms to be changed, but it is also possible—
Sir Oliver Letwin
Please, allow me to continue. It is also perfectly possible, as the right hon. Member for Leeds Central knows, because he is a fine logician, for the other side in the EU negotiations to reject such alternative terms. We therefore hit the question that he cannot evade: under those circumstances, is he or is he not hoping—the Opposition spokesman made what he was hoping for perfectly clear—that Parliament will have the right to tell the Government that they cannot leave on terms that Parliament does not accept? I really think that that is important, if we are to be honest about this, because that is what the right hon. Gentleman and the Opposition spokesman are suggesting.
Sir Oliver Letwin
I have no doubt that it is also what the right hon. Lady who is now seeking to catch my eye wishes to suggest. I will let her do so, and then I shall give way to my hon. Friend the Member for Chelmsford (Vicky Ford).
Yvette Cooper
The logic of the right hon. Gentleman’s position is that he wants to rule out any possibility for Parliament even to ask the Government to go back to the negotiating table. Of course he is right that, in the end, this is about a negotiation, and the 27 other European countries will have a view and such a negotiation will take place. The logic of his position, however, is that he wants to rule out any say for Parliament at all, or any attempt by Parliament to ask the Government to try to get a different or better deal, or to change the terms, and that makes absolutely no sense at all for anybody who believes in the role of Parliament.
Sir Oliver Letwin
First, the right hon. Lady has said nothing to contradict my point about what she and other Labour Members are arguing, and secondly, as a matter of fact, that is not a correct characterisation of my position. I am perfectly happy that Parliament should ask the Government, if there is time, to go back and reconsider the terms they are negotiating. I have no problem with that at all. The question is what happens if they cannot succeed in negotiating those terms and, in the end, we reach that crunch point.
Several hon. Members rose—
Sir Oliver Letwin
I am not going to give way to anyone except my hon. Friend the Member for Chelmsford.
Vicky Ford
May I take my right hon. Friend back to what he said about article 50? It is true that that says:
“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless”—
I repeat, unless—
“the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”
That is exactly the point. If we are close to a deal but, for example, struggling to get the last vote through the European Parliament, the 28 countries may wish to take a little more time.
Sir Oliver Letwin
My hon. Friend makes my point for me. The very point I am making is that no UK Government and no UK Parliament can guarantee that the other side would agree to any such thing.
Sir Oliver Letwin
I will give way to the Opposition spokesman in a moment.
There therefore can arise circumstances in which the choice, in the end, is between accepting leaving with no deal and not accepting leaving. I continue to believe—it is important that there is honesty on this point—that Opposition Members are essentially arguing that this House should have the ability to derail the process.
Matthew Pennycook
I do not think that that is a fair characterisation of my argument. The right hon. Gentleman has said that there is a possibility, in certain circumstances, of sending the Government back to ask for the deal to be changed. It is possible that that might be turned down, so it is not certain, but it is possible. Does he think that that should be an option, and if so, if he votes against amendment 7, what other mechanism might we use to send the Government back to at least try to improve a deal that this House felt was sub-optimal?
Sir Oliver Letwin
I am very happy to answer that question, and it will bring me neatly on to the point I want to make about the amendment tabled by my right hon. and learned Friend the Member for Beaconsfield. The answer, of course, lies in the combination of the proceedings on the resolution that will have to be agreed by this House, during which it will be perfectly possible for this House, both in debate and in the way it votes, to tell the Government, if there is time, to go back and try again; and of the proceedings on the withdrawal and implementation Bill, during which again, if there is time, the House could reject the proposition and ask the Government to go back.
We then come to the nub of what happens if there is no time anymore because the Government cannot get a renegotiation and cannot get an agreement—a further prolongation—of the kind that my hon. Friend the Member for Chelmsford describes. The question arises of whether Opposition Front Benchers are recommending, in those circumstances, that leaving without a deal is the possibility it needs to be for article 50 and the referendum to be respected. That is a crunch question that the hon. Member for Greenwich and Woolwich cannot avoid.
Matthew Pennycook
I will be brief, and then leave it there, but I want to pick up on two of the right hon. Gentleman’s points. First, I think there will be time. Last week’s joint agreement makes it clear that there must be time, in accordance with our own procedures, to look at the withdrawal agreement and then ratify it.
The right hon. Gentleman said that there is a possibility, on the basis of the Government’s commitment to a motion, to send them back to renegotiate, but that is not what his Secretary of State says. The Secretary of State says of the motion it is an up/down deal, and that a no vote would be the end of it—leaving without an agreement; not going back to the negotiating table.
Sir Oliver Letwin
There is no possibility of precluding Parliament from making such a resolution one way or the other. That is up to Parliament, and it is up to the Government of the day at that point to respond as they choose. No Government would sensibly respond in the way the hon. Gentleman describes, so I do not think that that is a realistic possibility.
Sir Oliver Letwin
I will give way to each of my hon. Friends, but let me say that I will not then give way again before I turn to the main part of my speech, which is about amendment 7.
Mr Djanogly
My right hon. Friend will be aware that all parties are aiming for next October for the negotiation of the final deal, but the Secretary of State has said that he will keep negotiating until March 2019 and that, if necessary, he will go on after that into the implementation period, so there should be time one way or another.
Sir Oliver Letwin
I agree with my hon. Friend. There may well be time; I am not in any way denying that. The point I was trying to make is that Labour Members have alleged that it is proper for Parliament to be able to have what they have described as a meaningful vote. They have made it perfectly clear that what they mean by a meaningful vote includes the ability to tell the Government that they cannot continue to leave the European Union if the terms on which they wish to leave are not acceptable to Parliament. That is a logical fact, and people can agree with it or disagree with it. I do not in any way impugn the motives of Labour Members; it is a perfectly reasonable thing for them to think. It is just that we ought to be honest about the fact that that is the proposition they are putting forward, which is in marked contrast to the point made by my right hon. and learned Friend the Member for Beaconsfield in his amendment 7.
Mr Baron
May I suggest that amendment 7, as presently drafted—this is central to my right hon. Friend’s point—has a major deficiency, because it could leave things in a permanent state of limbo? There is no incentive on the EU’s side to help to negotiate a good deal that is acceptable to this Parliament, which means that we could be left in deadlock for a period of years. I raised that point with my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), but he did not cover it in his speech.
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.
Mr Grieve
I picked this amendment with some care, precisely because I wanted to avoid the suggestion that by tabling it I was trying to sabotage Brexit. I was trying to prevent the potentially abusive use of a power in clause 9 when the Government were saying that they were going to do something different. That was the purpose behind the amendment. It was also, if I might say so, to prod the Government into responding, which I very much regret they have failed to do.
Sir Oliver Letwin
I am delighted by my right hon. and learned Friend’s intervention, because I agree that he has succeeded in doing that. He has not created the so-called meaningful vote that the right hon. Member for Leeds Central and the Opposition want. He has instead pointed out an issue with the use of the order-making power in this Bill. The question is: is it a good amendment in those terms? We have accepted that it is not a question of creating or not creating a meaningful vote, to use the term used by the right hon. Member for Leeds Central, but just a question of trying to get the Bill into good order—a pursuit in which my right hon. and learned Friend the Member for Beaconsfield and I have joined on many occasions during Committee proceedings. However, I think that on this particular occasion, this particular amendment is not a particularly good way of doing that. I will explain why I think that is the case, and I hope that the Government will instead come forward with another way of achieving the same effect.
It is a very odd situation indeed to have an amendment to what will become a section of an Act that refers to another piece of primary legislation as the basis for an order-making power in the first piece of legislation. In fact I think it is virtually unprecedented.
Mr Grieve
The Bill is unprecedented, because it is asking us, in the light of what the Government themselves say they are going to do, to sanction a power that undermines a further statute that the Government intend to pass, which should be the source of power for removing us from the EU.
Sir Oliver Letwin
Now I am beginning rather to agree with my right hon. and learned Friend. Therefore, my suggestion is that if that is the purpose of his amendment, it would be far better that it come back as a Government amendment on Report that achieves that effect in a different way and directly, without the gross inelegance of referring to another piece of legislation. It should mainly limit the power in clause 9 to things that are urgent and immediate, and perhaps even specify what sorts of things they might be.
As a matter of fact, I rather share my right hon. and learned Friend’s inclination to believe that clause 9 in its present form came forward before the Government were clear about the need for the implementation and withdrawal Bill, and that Ministers and officials have so far been quite hard pressed to identify exactly which powers are required in clause 9 under the new dispensation of that forthcoming Bill. The Government therefore have a good opportunity to promise from the Dispatch Box today that they will come back on Report with an amendment that is correctly phrased in such a way as to limit the order-making power in clause 9. That would avoid the possibility—this is the point that I want to make to my right hon. and learned Friend and other hon. Friends—of suggesting that we are in any way creating a launch pad for the efforts of the right hon. Member for Leeds Central and Opposition Front Benchers to create what they call a meaningful vote, which is in fact an ability to trigger us not leaving.
Mr Grieve
There will undoubtedly be an opportunity at the end of this process, if this House were so minded, to reject a deal. I have to say—my right hon. Friend may agree with me—that ultimately the House could bring this Government down, if it had to or wanted to do so. That is our constitutional ability.
My right hon. Friend’s main point does not find favour with me, because the only way we will get something sensible on Report is by getting amendment 7 on the statute book and on the face of the Bill. I asked repeatedly for an engagement along precisely the lines that my right hon. Friend has identified, and it was consistently rejected. That is why I will vote for amendment 7, and if I may say so, I would encourage him to do likewise.
Sir Oliver Letwin
I am surprised by that, because my right hon. and learned Friend has a long and distinguished record of voting for good law. I do not think that this is good law, for the reasons I have identified. I think it really would be better if we had a correct amendment at a later stage of proceedings.
Sir Oliver Heald
Does my right hon. Friend agree that the current plans create the risk of parallel legislation, with an Act of Parliament dealing with our withdrawal agreement going through at the same time as all sorts of orders, because there is no trigger mechanism for, or constraint on, the order-making power? Therefore, is not my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the former Attorney General, doing the House a service by seeking to avoid the risk of parallel proceedings, which is something that this House never does?
Sir Oliver Letwin
I agree with my right hon. and learned Friend that we ought to avoid the possibility of parallel proceedings, but my suggestion would certainly achieve that. If the Government were to come forward at a later stage with an amendment that made it clear that clause 9 could be used only for urgent things of a specified kind, that would prevent the possibility of parallel proceedings.
Anna Soubry
May I suggest another way forward, which is that we agree to the amendment and then, given that this is Committee stage, the Government can go away and fine-tune it, which is what they thought it needed? They had the opportunity to the table their own amendment, but they did not see that commitment through and table one by 3 o’clock on Friday. There is another way. Let us vote on and accept the amendment today and put a meaningful vote in the Bill; and if it needs a twiddle and a tweak, we can come back on Report and I am sure we will all agree to that.
Sir Oliver Letwin
But if my right hon. Friend agrees with me that our purpose in this case is not to create a so-called meaningful vote but simply to ensure that clause 9 is not used to create parallel proceedings or to give carte blanche, it would clearly make sense for the Government to make that undertaking rather than to accept an amendment that has an unnecessary effect.
Charlie Elphicke (Dover) (Ind)
Looking at this matter independently, as one does these days, it strikes me that my right hon. Friend’s argument raises a serious question about why clause 9 needs to be in the Bill at all. We are going to have a withdrawal agreement and implementation Bill, and if the Government cannot say what it is that might be urgent, why should we have this clause at all?
Sir Oliver Letwin
Now that there is to be an implementation and withdrawal agreement Bill I do not personally yet understand the need for clause 9. However, the right way to deal with that is for the Government either to say that they will consider getting rid of clause 9 or to make the kind of restricted amendments on Report that I was describing. In any of those ways, the problem would be resolved without the need for this kind of tension, and that would surely be desirable.
Mr Grieve
I am most grateful to my right hon. Friend for giving way again. In a sense, he unmasks my strategy. I have spent the whole time trying to be sotto voce about this, trying to get some common sense into the Government, which I have been unable to do. It is for that reason that, I very much regret, there really is no alternative to amendment 7. It may be inelegant—although I do not think it is—but it does the business. It would stop the Government doing something that they should not be doing. I could not agree with him more that clause 9 could be removed entirely. It would very sensible if the Government were to do that, but if I had suggested that they would have been upset with me, and it would have made the relationship and the negotiation even harder. In the spirit of conciliation I avoided that brutality and came up with something different.
Sir Oliver Letwin
Speaking personally, I do not think there would be anything very brutal about the Government deciding on Report that it would be sensible to not have clause 9 in the Bill, given that there will now be a separate piece of legislation to achieve the same effect.
Chris Bryant
I hope that means the right hon. Gentleman is now calling on the Government not to move that clause 9 stand part of the Bill, and that, if they do not do that and instead insist that clause 9 does stand part of the Bill, he will vote against it. That is the obvious logic of what he is saying.
Sir Oliver Letwin
It was with some regret that I gave way to the hon. Gentleman. I have never known him to take a position that was not partisan and slightly ludicrous, and that was a classic example. Here am I irenically trying to achieve a result that would be in the interests of the nation—good legislation that has the effect my right hon. and learned Friend the Member for Beaconsfield agrees he is trying to achieve, but which would not have the disadvantage of enabling the Opposition Front Benchers, the right hon. Member for Leeds Central and others, including the hon. Member for Rhondda (Chris Bryant), to achieve the meaningful vote they want to achieve. But what does he want to do? He wants to create some trouble. Well, that is fine—that is what happens in Parliament. My suggestion, however, is not that the Government should be defeated tonight or engage in some huge reversal, but that they should make the sort of change they often make in Committee and on Report—there is, after all, much time to consider the issue on Report if necessary. I want them either to make an adjustment to clause 9 or remove it. That would overcome the difficulty without creating a platform for ending our withdrawal, which is I think the subterranean motive of many on the Opposition Benches—although not, I stress, of my right hon. and learned Friend the Member for Beaconsfield.
Heidi Allen (South Cambridgeshire) (Con)
Will my right hon. Friend give way?
Sir Oliver Letwin
I will give way two last times and then I really must sit down, because I have said everything I wanted to say and I am now just responding.
Heidi Allen
I am afraid I am little overwhelmed by the legal expertise all around me—I will just speak very plainly. Does my right hon. Friend not understand the difficulty and the trust issue when my right hon. and learned Friend the Member for Beaconsfield has been trying for weeks and weeks, with all good intentions, to engage the Government in this process and has failed? There comes a point when enough is enough and the voice of Parliament has a role in saying, “Put this in the Bill.”
Sir Oliver Letwin
I understand what my hon. Friend is saying, but I do not agree with her. There is a well established process for Bills in this House that includes a Report stage. If one wishes to table an amendment in the House of Commons that the Government will not accept, it is perfectly possible to do so on Report. There is no reason to force the issue in Committee. As a matter of fact, the Bill will proceed through the other place, where there will be many, many proceedings. I do not have the slightest doubt—I am sure all my hon. Friends would agree—that it will send messages back to this place, so that will give us another opportunity. I do not stress that, though; it is enough that we have the Report stage. I quite agree that there is a mischief here, but I think it is a restricted mischief and I do not think the amendment is needed to deal with it. There are other means of dealing with it. It could be done on Report, and I therefore do not think that “enough is enough” applies now.
Angus Brendan MacNeil
The right hon. Gentleman has been digging a hole for himself on clause 9 quite successfully. The way he has been speaking, he seems not to understand that the amendment would only giving the House the possibility of a vote. Given the way the Brexiteers have been winning every vote, if a vote was held on a deal the only reason it would be lost is if it was a terrible deal for the UK. His argument is the equivalent of somebody setting sail on the Titanic and refusing to take any lifeboats.
Sir Oliver Letwin
It is very odd—it is as if the hon. Gentleman has not been here, but I have seen his body here all the time. The fact of the matter is that the House has had a series of votes, it is going to have a further series of votes, and then it is going to have a whole pile of votes on, inter alia, the new implementation and withdrawal Bill. In fact, my right hon. and learned Friend the Member for Beaconsfield is totally in agreement with that. There is no question of whether we give the House a vote. It is going to have a vote. The question is: what is the articulation of that with clause 9? That is what those of us who are being serious about this have been trying to discuss.
I really feel that I have come to the end of my remarks. I apologise, Sir David, that I am long past time. I hope you will accept that it is because I was answering points from other Members.
Dr Philippa Whitford (Central Ayrshire) (SNP)
We have been discussing new clause 3 and amendment 7, which is about process in this place and, as has been said, whether there is any point in clause 9 if there is going to be a withdrawal agreement Bill. The problem is that, if clause 9 remains in the Bill, the Government will still have powers in the interim to make changes, including to the Bill itself. That means that, when the Bill completes, the Executive could simply change it in any way they wanted.
On the issue of having a vote that is meaningful, if the only option we have is the deal that comes back or no deal, frankly, that is Hobson’s choice. What should have been happening is what the Prime Minister categorically refused: a running commentary. Other Governments in Europe have sent people back to the negotiating table to try to make changes when legislation has been enacted. It is important that we remember the paucity of the debate running up to June 2016. We did not explore all the impacts. There was one debate in this Chamber on the EU and the economy. There was no debate in this Chamber on the health or social impacts, or on the loss of rights and opportunities. We did not have that. We did not air these issues—it is like having the Brexit debate now.
I want to speak to amendment 143, tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas), which looks for a signed agreement to protect EU citizens in the UK and UK citizens in the EU.
Dominic Raab
We have only two hours left, and I want to make some progress, but I give way to my right hon. Friend the Member for West Dorset.
Sir Oliver Letwin
I think that my hon. Friend is suggesting a route to solving the problem raised by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). Could not the requirement that the resolution be sanctioned by the House before the implementation of those orders be put into a revised version of clause 9 on Report?
Dominic Raab
I would hope that the assurances we have made, along with the written ministerial statement, are adequate, but there is nothing stopping any hon. Member coming back and having another go. We have—[Interruption.] The hon. Member for Rhondda is sitting there tapping knowingly. He has been talking about the separation of powers between the legislature and the Executive, and now I am being asked to correct homework for hon. Members. That is not necessarily the course on which to proceed. What I will do, as we have done all along and as I think as my right hon. and learned Friend the Member for Beaconsfield knows, is to continue to discuss all these matters with my right hon. and hon. Friends as we progress. The important point to understand—we have not had a huge amount of time to go into the details of what the compromise assurances might be—is that at the moment amendment 7 is defective and would have very real consequences for our ability to deliver on the deal we do with our European partners.
Sir Oliver Letwin
Does my hon. Friend agree that there is a quite natural solution, which is to put the assurance given at the Dispatch Box into the clause when the Bill comes back on Report?
Mr Rees-Mogg
My right hon. Friend’s speech was absolutely brilliant. He got to the heart of all these matters, and indeed he provided a solution, which is that there should be such a good-spirited compromise that places some faith in the Government, as it is reasonable for Members of Parliament to do. We should recognise that it is better to have a clear response on Report that covers the whole problem than to agree an amendment that is constitutionally abnormal, because we should not agree to such amendments.
I follow the Minister’s argument that there are circumstances in which clause 9 could be useful. If an agreement comes relatively late on, I understand that there will be an urgency in getting statutory instruments presented. There also will be a Prorogation before May 2019, so there might be a delay in the proceedings on the withdrawal and implementation Bill and therefore a need for urgent action. If we pass a motion, as may be legislatively required, to accept the proposed statutory instruments, that will both maintain parliamentary control and give the Government the flexibility that they are likely to need.
This issue becomes very significant because, as we leave, we will want legislative continuity and clarity. The date has been set, and that has been debated, but the key is that the date has been set by previous decisions of Parliament. It is in no sense an erosion of parliamentary sovereignty, because the date is set out in the Act triggering article 50 and in the Act incorporating the Lisbon treaty into UK law. The timeframe was set under voluntary Acts of Parliament requiring things to be done by 29 March 2019. It therefore follows that there is some pressure on time, so it is perfectly reasonable for the Government to ask for such flexibility.
I conclude on the vote at the end—the final meaningful vote. The hon. Member for Rhondda (Chris Bryant), as he so often does, made an elegant point when he said that this is a metaphysical decision for us about the meaning of meaning. The issue is that Her Majesty’s Government have already promised that we will have a vote on the deal before the European Parliament does, but there is no deal until the European Parliament has voted. The European Parliament has to agree to the deal—as part of the article 50 package, this is decided by an enhanced qualified majority vote, subject to the approval of the European Parliament—but we have already been promised a vote before the matter is voted on by the European Parliament.
Stephen Kinnock
I agree absolutely with the right hon. Lady. I pay tribute to her and to a range of other right hon. and hon. Members across the House. This is not an easy choice to make. It is always difficult in these circumstances when there is a huge amount of interest and focus on what we are about to do in this House. It is essential that hon. Members stick with their principles, and sometimes that means putting country before party. I pay tribute to every right hon. and hon. Member who will do that this evening. This is indeed a matter of trust. The challenge that we face is that if this provision is not put on the face of the Bill, we will not have the confidence and the assurance that we in this place can indeed take back control and reassert the sovereignty of this place, which is what 17 million people voted for on 23 June 2016.
Stephen Kinnock
I am afraid I must push on, because we are moving towards the deadline.
Having paid tribute to those right hon. and hon. Members for what they are doing this evening, I commend the terms of amendment 7 to the Committee. I will be honoured to go through the Division Lobby with those right hon. and hon. Members this evening.
European Union (Withdrawal) Bill
Oliver Letwin ExcerptsTuesday 21st November 2017
(6 years, 5 months ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 21 November 2017 - (21 Nov 2017)
Mr Grieve
That of course was one of the great anxieties when the charter was enacted. Indeed, it is the reason for the UK’s so-called opt-out, but it is not an opt-out because, in so far as the charter reflects general principles of EU law, we are bound by it. One example, which my right hon. Friend will remember, was the case of Chester and McGeoch and prisoner voting rights. There was an attempt to invoke EU law as a tool in order to force the UK Government to bring in prisoner voting, at least in relation to European elections. I think that it is fair to say that it caused much disquiet in government as to the possibility that that might be the outcome of the court case. Indeed, I went to argue the court case as Attorney General on the Government’s behalf in our Supreme Court. Invoking EU law was used as a tool, but it did not lead to that outcome.
Looking back over the history of the charter, I do not think that some of the fears that were expressed—that it would be used for an expansionist purpose by the European Court of Justice in Luxembourg—have been proved to be correct. In any event, we are leaving the jurisdiction of the Court of Justice of the European Union, unless we have to stay in it for transitional purposes. When we are gone it will be our own Supreme Court, in which I have enormous confidence, that will carry out that interpretation. I do not want to labour this point much further. I simply want to say that there is a really important issue for us to debate. It is about what happens to the sorts of rights that have come to us through the charter and through the EU. The matter cannot be ignored. In the short term—the sword of Damocles moment again—the Government must think about it before the Bill has finished going through this House.
Sir Oliver Letwin (West Dorset) (Con)
I just want to make sure that I understand what my right hon. and learned Friend is suggesting. Are there some items in the charter which are not going to be retained through the retention principles of the Bill, but which should be retained in the form effectively of becoming an amendment to the HRA, so that they are subject to the HRA’s protections?
Mr Grieve
That could be a solution, but even if we do not have time to move to that and to have the necessary debate—as we highlighted in the question about the statutory instrument powers that the Government are taking to change law—some comfort and reassurance might be provided with the fact that there are some categories of EU-derived law that could do with at least the assurance that they would require primary legislation to change them. That might go some way to providing reassurance to some of the perfectly worthy organisations that have been writing to us that there is no malevolent intent towards this important area in which rights have developed.
Sir Oliver Letwin
I just want to follow what my right hon. and learned Friend was saying a moment ago, because it seemed to be a very useful suggestion. Is he saying that, as part of what he and I sometimes call the triage process, certain items that are classed as rights could be subject to primary legislation in full for amendment, whereas others, which are important but not rights, might be subject to the affirmative procedure and others, which are technical, will be left over for the negative procedure?
Sir Oliver Letwin
In my right hon and learned Friend’s observations about schedule 1, paragraph 3(2), is he referring to retained general principles of EU law or to new ones post Brexit? If he is talking about the retained ones, I have a great deal of sympathy with his position, whereas importing rights of challenge that rely on later developments of EU law would be quite against the principle of Brexit.
Sir Oliver Letwin
I am delighted, though not surprised, that my right hon. and learned Friend and I are thinking alike on this, as we have thought alike on many of these issues. Does he think, in that case, that his amendment 10 ought to be recast when, as I hope, it appears as a Government amendment on Report, so as not to remove paragraph 3 but to say, instead of “general principles”, “retained general principles”, with similar consequential adjustments?
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.
Paul Blomfield
In his keenness to tackle the argument, I think that the hon. Gentleman has missed the point. That has nothing to do with the charter.
Let me turn to a separate but related point on schedule 1, which states:
“There is no right of action in domestic law”
post exit
“based on a failure to comply”
with EU general principles. The schedule also prevents courts from ruling that a particular Act was “unlawful” or from quashing any action on the basis that it was not compatible with the general principles. Damages are not allowed, so general principles are rendered irrelevant, which also reduces rights. Our amendment 336 seeks to address that by retaining the existing principles of EU law regardless of whether they originated in case law, treaties, EU legislation or directives. The date on which that retention would end would be the end of a transitional period.
Let me turn to our amendment 335 to schedule 1 on the Francovich rule. I shall be brief because others have tabled similar amendments, which we support, and I want to give them a full opportunity to make their case without my anticipating what they are going to say.
Sir Oliver Letwin
On a point of clarification, the hon. Gentleman said that the date on which the retention would end under the amendment would be the end of the transitional period. Did he mean that no new general principles of EU law formulated after that date would apply, or did he mean the retention would end at the end of the transitional period?
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.
Mr Jonathan Djanogly (Huntingdon) (Con)
I believe that, taken as a whole, the Bill works and will do what it says on the tin. Indeed, I note that no one has come up with a better plan to extricate us from the EU. Furthermore, the recent Government announcement that we should have a Bill to set out the terms of withdrawal and the implementation period will provide a good opportunity to readdress any legal complexities and tweaks that become necessary—for instance, through the proposals on human rights changing due to EU negotiations. However, the detail is what counts, and I think that this legislation is still something of an unpolished gem.
Clause 5 would change the role of the principle of the supremacy of EU law post Brexit and act as a carve-out to the concept of having retained EU law. Many of the related issues were debated on day one of our Committee proceedings in relation to clause 6. With clauses 5 and 6 in place, once the UK leaves the EU, EU law will no longer be supreme over new laws made by Parliament, and the UK courts will not need to follow European Court of Justice judgments made after exit day. However, it is time for a gripe, Mr Hanson. Ministers’ decision to speak twice on different issues within the same group has been somewhat unhelpful, because it disconnects the various parts of what we are debating. I agree the two groupings might have been preferable, but that was not on offer from the Chair. Having had my gripe, I will now move on.
Amending clause 5 to deal with the requirement of the withdrawal agreement, or even an incompatibility with it, could be activated by use of the Henry VIII powers set out in clause 9, or alternatively by delaying implementation of clauses 5 and 6 using the power in the Bill—a power that the Government currently wish to amend, but which I hope they will not—to set different exit days for different purposes.
Of course, having the position ironed out in the newly proposed implementation Bill could also be an option. This is a likely issue to be considered, as the Prime Minister did, of course, on 22 September, support a transition period, noting that
“the framework for this strictly time limited period, which can be agreed under Article 50, would be the existing structure of EU rules and regulations.”
The Government have since complained that the EU has been slow to talk about an implementation period, which is certainly concerning. It has been described as a wasting asset, but this should not reduce our urgent need to consider how we would actually implement it.
There is no doubt, from reading the views of the significant number of experts, and from what the Exiting the European Union Committee has heard in evidence, that there is some level of confusion about the meaning of clause 5(1) to (3). I hope that the Government will clarify the position, although I have to say that much of the evidence that the Select Committee received was itself conflicting as to its importance. For instance, witnesses queried the intended effect of clause 5(1): is it only a declaratory statement, or is it setting out the position for the retention of the principle in clause 5(2)?
The point is that the relationship between the supremacy of EU law and retained law is not clear to a number of people. As Professor Mark Elliott noted,
“if retained EU law is domestic law, can it inherit the ‘supremacy’ of the ‘EU law?’”
Would retained law under clauses 3 and 4 benefit from the supremacy of EU law as provided for in clause 5(2)? Professor Syrpis backed that up in his written evidence to the Committee:
“The Bill may be handled in various ways; for example Clause 5(4) excludes the Charter, Clause 6(2) states that: courts need not have any regard to anything done on or after exit day by the European Court”
and schedule 1 excludes Francovich damages.
But it remains unclear whether these exclusions relate only to the retention of EU law in UK law, in clauses 2 to 4, and the interpretation of retained EU law, in clause 6, or whether they also apply to the principle of supremacy of EU law, in clause 5. In effect, I have seen enough indecision on this to think that the Minister needs to expand on his interpretation of the supremacy principle.
Of course, if domestic courts decide on the content and meaning of law post Brexit, domestic judges are going to have to respond to the challenge, as I am sure they are very capable of doing. Clearly we should help them on their way, so far as possible, by giving clarity on such issues as scoping the supremacy of EU law, although ultimately they will have to judge—
“judges will simply have to do their best”,
as Lord Neuberger put it. Frankly, I do not see what could be put in the Bill that would make this an easy process for judges in practice. However, as Sir Stephen Laws and Dr Charlotte O’Brien told our Committee,
“there is already an existing principle whereby, when deciding on law, the courts will look at foreign judgements and treat them as persuasive but not binding”.
Professor Richard Ekins took this a stage further and thought that the provision is only there
“to make it the case that no one thinks the judges are doing anything wrong if they read them”—
meaning Court of Justice judgments—
and that
“you could delete the clause and I think the judges would, properly, do the same thing”.
Clause 5(4) exempts the charter of fundamental rights from being converted into domestic law. The first point here is that, whether or not one agrees with the provision, one could ask whether this is the right Bill to insert it into. That argument was made by the hon. Member for Sheffield Central (Paul Blomfield). The Bill is about converting EU law into UK law in order to have a functioning rule book, rather than dealing with policy issues—providing legal certainty rather than reshaping rights. We could have had a stand-alone Bill to deal with that, but I am not convinced that it would have helped the process, or indeed the outcome. In fact, to the contrary, I think that having the benefit of the clause 5 debate running contemporaneously is helpful—if only Ministers had thought the same when grouping today’s amendments.
As for the charter itself, it is a matter of fact that it contains certain extra rights other than those that exist in the Human Rights Act, such as the right to dignity and, as the right hon. Member for East Ham (Stephen Timms) elaborated, the right to protection of personal data. There is also a wider class of potential applicants, because it includes anyone with a “sufficient interest”. Also, stronger remedies are arguably available in certain circumstances, but all that still has to be within the scope of EU law, and I agree with the Government that the charter will lose its relevance after Brexit. However, in the wider context and while it is important to debate the issue, I have strong doubts that we will be losing much by removing the charter if we get the drafting of this Bill right, because many charter rights will form part of the general principles of EU law, as has been explained, and will thereby be retained by clause 6(7) and schedule 1 for the purpose of interpreting retained EU law.
Retention of the charter would also go against the principle of English courts taking control. There may be initial teething problems, but I note that the Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Wycombe (Mr Baker), told the Exiting the European Union Committee that an EU legal source exists for each charter right, such that judges will be required to look at the underlying source law or rights when considering cases post exit, rather than the charter. However, I am not sure that that is quite adequate, as it seems as though the Bill will contain no right of action in domestic law based on a failure to comply with any of the general principles of EU law and the courts will not be able to disapply any new law because it is incompatible with any of these general principles, including fundamental rights. Amendment 10, tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), would address that by allowing challenges to be brought to retained EU law—law after Brexit—on the grounds that it is in breach of the general principles of EU law.
Sir Oliver Letwin
Does my hon. Friend agree that a different amendment—perhaps a Government amendment on Report—could achieve the same purpose by restricting that part of schedule 1 to dealing with non-retained general principles of law, so that retained principles could form the basis for a right of action?
Mr Djanogly
Yes, my right hon. Friend made that fair point in an earlier intervention. I am happy to say that I am open and willing to hear what the Government have to say on that, and I look forward to the Minister’s contribution later.
The concept of amendment 10 sounds reasonable to me—not least if we are to get rid of the charter—and I shall be listening carefully. However, I agree that the charter has significantly added to the complexity of human rights applications and that in removing the charter the Bill will provide an opportunity to simplify things outside the EU. The Minister has promised to deliver to the Exiting the European Union Committee a memorandum on charter rights, and I note the idea provided by new clause 16, tabled by the hon. Member for Nottingham East (Mr Leslie), of a report to review the implications of removal of the charter. I would happily accept Ministers’ assurance on that, rather than to legislate for it, and I hope that the document to be delivered to the Committee by 5 December will cover the two issues, as I think the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton (Dominic Raab), said earlier.
My underlying acceptance of the Bill’s position is premised on there remaining, as now exists, a significant and meaningful body of human rights legislation in this country. That would include common law and the Human Rights Act and would be underpinned by the European convention on human rights. I am therefore pleased that the Minister took the opportunity to accept the need for retention of the ECHR in the post-Brexit period.
Mary Creagh
I thank the right hon. Lady for that intervention. Often the simplest sentences raise the biggest alarm bells, because things can be missed if we blink, and substantial rights are engaged in this. The Brexit Secretary said in his speech to UBS last week that the UK would remain
“in all the EU regulators and agencies”
during the transitional period. That leaves us with a further conundrum, because transitional rights are mentioned in the European Commission’s negotiating paper and it says that the ECJ will continue to be able to decide, presumably on Francovich, during any transitional period. The issue of the transitional period is stretching the elastic limits of the Conservative party and of the Cabinet at the moment in terms of which wing of the party is going to succeed, but from the point of view of economic stability and job stability in this country I certainly want to see a transitional period. This Bill raises questions about the loss of those rights if there should be, as we all hope there will be, a transitional period.
The problem is that those rights start to erode as exit day looms, because the incentive to follow the EU directives will be diminished for the Government as they will be let off the hook, given that there will be no retroactive right to sue under Francovich.
Schedule 1 therefore fails the basic test of fairness. For example, if the Government are in breach of an air quality directive, perish the thought, and people are suffering a substantial loss as a result, only those who start legal proceedings before exit day would be entitled to those damages. My amendment 139 would ensure that the right to sue the state and to obtain a remedy under Francovich is still available for those who have suffered that loss or damage before the UK exits the EU. This would allow the victims of a Government failure to uphold their rights that took place before exit to obtain those damages. It would bring fairness to this process, as well as, crucially, legal continuity and legal certainty. Brexit must not be used as an excuse to abolish citizens’ rights and protections under the law. In the referendum my constituents did not vote to reduce their rights, and I hope the Committee will be able to test the matter this evening.
Sir Oliver Letwin
I have considerable sympathy with the points just made by the hon. Member for Wakefield (Mary Creagh). Exactly at which point to create which cut-off when dealing with Francovich is a knotty issue, but the idea that people whose rights already exist and who are damaged before exit should be prohibited from pursuing causes that they would have been able pursue now had they had the wit to start them now is pretty offensive to natural justice, and I hope that those on the Treasury Bench will come forward with some adjustment to paragraph 4 of schedule 1.
I mainly wish to dwell on the two other issues that have been raised in this interesting debate, which has been much more of a genuine Committee stage debate than some of the debates, or some parts of them, that we have had in the previous two days’ consideration. The first is on the charter of fundamental rights, where I thought the argument was largely being won by those who argued that it was not productive to have the general principles in that charter brought into UK law, provided that we could satisfy ourselves that case law and statute between them would cover off all the material and substantive rights contained within the charter. I was therefore extremely heartened to hear the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton (Dominic Raab), say that there was going to be a full analysis, which I hope will be sufficient to persuade us all that all the rights are covered off in some other way. If they are, the points that were made about the dangers of judicial activism, which is positively invited by the charter of fundamental rights, would outweigh any advantage to the charter’s incorporation.
Before I come to the main point I want to make about paragraph 3 of schedule 1, I wish to observe, as a slight qualification to some of the things that have been said in Committee, that an element of judicial activism will not only be made possible but actually be required by the Bill, because it refers repeatedly to retained principles and it is impossible for judges to engage in the application of principles without their engaging in judicial activism that goes beyond simply reading the plain face of statutes and the like.
This is all a very grey area. With that in mind, I come to amendment 10, tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), and paragraph 3 of schedule 1. His amendment refers to paragraphs 1 to 3, but in my view it refers mainly to paragraph 3. There is currently a great oddity in the way the Bill is cast. I very much hope that not too long from now my hon. and learned Friend the Solicitor General will come to the Dispatch Box and resolve this problem, but it is important to set out the nature of the problem.
Clause 5(2) clearly establishes the principle of the supremacy of EU law so far as the past is concerned. It spells it out in awesome terms, by including the
“disapplication or quashing of any enactment or rule of law”—
if that phrase has any meaning—
“passed or made before exit day.”
Clause 6(3)(a), which we discussed on a previous day, makes it entirely clear, at least in relation to the ordinary operation of the lower courts—my right hon. and learned Friend the Member for Beaconsfield and I are still discussing with Ministers on the Treasury Bench the vexed question of the Supreme Court—that not only retained case law but
“any retained general principles of EU law”
are to be applied by the courts.
It is therefore a strange state of affairs that if we look at schedule 1, we discover that no court or tribunal will be able do the very things that the combination of clauses 5(2) and 6(3) require. No court or tribunal will be able to apply the general principles of EU law to quash or be supreme over any existing UK law. We can have a Bill that says one thing or we can have a Bill that says the opposite, but we cannot properly have a Bill that says in one part of it one thing and in another part the opposite of that thing, so some change is required. That much is, I think, simply a matter of analytical fact.
My preference, which I hope the Solicitor General is going to reflect in his remarks, is for a change of the kind that has come up in various exchanges this afternoon. It is considerably more modest than the rather uncharacteristically complete, sweeping amendment tabled by my right hon. and learned Friend the Member for Beaconsfield. I would simply amend paragraph 3(2) of schedule 1 in such a way as to ensure that it refers to general principles of EU law other than retained principles. At that point, it seems to me, rationality would re-enter the scene, because we would then be saying that after exit day a court in the UK could not use later principles developed by the CJEU—or indeed, while we are at it, any charters or other documents produced by the EU—to overrule English statute, which would of course be a natural and proper consequence of our leaving the EU.
Sir William Cash
For the sake of the record, I would be grateful to my right hon. Friend—I nearly said “learned” because he is doing such a great job—if he also looked at paragraph 5, which, in terms of interpretation, does relate to schedule 1 as well, and so cannot be left out.
Sir Oliver Letwin
Oddly enough, I was going to say that, so I will not do so now. I agree with that. While we are at it, I hope that the Solicitor General will also tell us that paragraph 3(1) of schedule 1 will be similarly adjusted, because, clearly, we need the same principle to apply to a private right of action as applies to the quashing of an enactment.
Provided that those changes are made, I think that the basic articulation of clause 5 and schedule 1, unlike clause 6, is in reasonably good shape and therefore I hope that, as well as the very splendid offer of a full analysis of the rights, we will get a very clear statement from the Minister about the kind of amendments that will be brought forward on Report. That would certainly make me more than willing to support the Government tonight.
Antoinette Sandbach
I am afraid that the Walker case demonstrates exactly the opposite. Somebody was discriminated against because they were in a same-sex marriage, and the charter guaranteed the partner’s right to the pension. That was not a matter of social policy; it was enforced because of the charter. That is why this debate is incredibly important. There will potentially be some areas that are a matter of policy, but it is important for the Government to go away and look at the amendments because serious points are being made that will affect people’s everyday lives. This is not a debate on principles that do not matter; these are really important, fundamental issues that, as a democracy, we should be looking at in a sensible and reflective way.
Sir Oliver Letwin
I entirely agree that there are anti-discriminatory rights contained in the charter. However, does my hon. Friend agree that the issue which is not yet resolved, but which the Government’s analysis may resolve, is whether those rights are already encoded in the case law and the general principles emanating from that case law, and therefore do not need to be in a separate charter for our purposes, or are not yet in the law and therefore would need to be in the charter?
Antoinette Sandbach
I do accept that that needs to be looked at. The problem with the sovereignty of Parliament is that we always get to the point where the Parliaments of the future can change and erode these rights. I agree with my right hon. Friend’s earlier suggestion that in due course the Human Rights Act ought to be amended to include the broader category of rights. We are seeing an evolution and a change in our rights, and it is important to reflect that in that Act.
The Solicitor General
I wanted to deal with the issue in this way, because it seems to me that the nub of the issue that my right hon. and learned Friend is concerned about is with regard to the rights of challenge relating to pre-exit causes of action. It would be possible to retain those, and in relation to executive action even after exit in areas covered by retained EU law. We can agree that there should be appropriate mechanisms for challenging the actions of the Executive. I am happy to discuss further with him what might be needed. I am also willing to discuss whether there needs to be some further route of challenge on secondary legislation.
The rights landscape is indeed complex, and we are seeking with this Bill to maximise and not remove any substantive rights that UK citizens currently enjoy. In view of my commitment to look at this again, I invite my right hon. and learned Friend not to press amendment 10 and to agree to work with us in this shared endeavour. The Government will bring forward our own amendments on Report for the purposes of clarifying paragraph 3 of schedule 1.
Sir Oliver Letwin
I am grateful to my hon. and learned Friend, who has just said some of the words that many of us hoped to hear, which is that Government amendments to that effect will come forward on Report. Will that include an appropriate amendment to paragraph 3(1) on the private rights of action?
The Solicitor General
Let me turn to paragraph 3(1) of schedule 1 to be absolutely clear. I am interested in looking at all aspects of that provision: sub-paragraphs (1) and (2).
Alex Chalk
This is about not furthering the rights of lawyers, but about how we as a House ensure that there is a corpus of law that is consistent, serves the interests of our constituents and can be considered in an intelligible and consistent way.
My view is that the remedy for this inconsistency is not for us to bring in the charter lock, stock and barrel to apply to all law. We could do that, but it would not work because it would create great confusion respecting the existing European convention on human rights, which is of course incorporated into English law and British law. Instead, the time has come—not today and not tomorrow, but at some time in the near future—to look at granting British citizens a corpus of rights to sit alongside the ECHR, as a written constitution, as it were, that extends the Human Rights Act and allows citizens to apply their rights against any law in this country. The logical next stage is to have what is in effect a written constitution.
Sir Oliver Letwin
As a matter of fact, my hon. Friend and I may be the only two Government Members who believe in having a written constitution. I thought I was the only one—
Sir Oliver Letwin
There are three of us. I am very grateful. [Hon. Members: “Four.”] Let us not count. In any event, the number is small.
Does my hon. Friend agree that, in the interim, it would be a good step if the rights we identify, as a result of the Government’s analysis, as coming out of the charter—the third category rights—should in due course, although not of course in this Bill, be added to the Human Rights Act in a way that at least enables such a degree of entrenchment?
Alex Chalk
That is exactly right. I, respectfully, completely agree with my right hon. Friend. What has been such a benefit of this debate is that we have identified a third category of rights that Members on both sides of the House recognise there is a real public benefit in adding to the corpus of rights enjoyed by the British people. I entirely agree that we should look at whether they can be added pro tem to the Human Rights Act.
My fundamental point is that, if we are inching our way towards a written constitution, retaining the charter, which is in effect a proto-constitution, on the basis of an amendment debated for just a few hours in this Chamber is entirely the wrong way to go about it. For that reason and that reason alone, I am supporting the Government.
Suella Fernandes
I am pleased to follow my hon. Friend the Member for Middlesbrough South and East Cleveland (Mr Clarke) on his debut in Committee. I am sure we will all be treated to many more thoughtful contributions based on his experience as a lawyer before coming to this place.
I apologise at the outset, but I will be adding to the chorus of lawyers. There has been an abundance of lawyers—this debate has flushed us out, Mr Hoyle. I must say that I have sat here with nothing but admiration and respect for the very learned interventions and contributions from right hon. and hon. Members on both sides of the House, whose attitude has been to try to improve the Bill. They have obviously been received with a welcome from the Solicitor General, marked by his comments just now.
The issue is not about whether the charter is in or out, and it is not about being pro-rights or anti-rights. For me, it is about whether the Bill, which is designed to provide legal certainty on Brexit day, will achieve that aim or instead create a feast for lawyers, born out of legal uncertainty. The purpose of the Bill is to avoid the overnight evaporation of EU law on the date of our exit by providing certainty and predictability for businesses, individuals and foreign Governments dealing with Britain after we leave the EU.
We want to resolve questions rather than create them, but I do have real concerns. I have great respect for some of the amendments that have been tabled, which have raised many areas of confusion. For example, how would the common-law rules, the Human Rights Act and the charter interact, especially when rights are replicated in the Act and the charter but are interpreted by different courts? We have identical rights interpreted in one way by the Strasbourg Court and in a slightly different way by the Luxembourg Court. That only provides for inconsistency and confusion. What is the position for rights that appear in one document but not the other? What is the position for rights that are in the charter, but will be rendered completely futile as a result of Brexit due to their extensive references to the EU and other EU institutions?
More concerning is the confusion created by the remedies provided in the charter and the role of the Supreme Court and the European Court of Justice. The Human Rights Act contains protections for people in many ways: the right to a fair trial, a right to life, a right to a private life and family life, and the right to be free from discrimination. We in Britain should be proud of that document. Under the Act, the Supreme Court can make declarations of incompatibility in the event of a breach. That power is limited, as a reflection of the role of the Supreme Court in our constitution and the particularly fine balance between the judiciary and our legislature—that hard-won principle of parliamentary sovereignty.
That is not an obscure notion to amuse academics. It is the key foundation of our country’s governance that in this place, in this elected Chamber, we elected representatives have the final say on what rights people are afforded, what restrictions they are subject to, what remedies they can invoke and what responsibilities they owe. That is what our job is here in Parliament. We are elected and are subject to transparency. We are accountable and we can be kicked out if necessary. Judges, in comparison, are unelected. They are, of course, expert and robust in their integrity, but they are often unknown and are away from the glare of publicity. They are not answerable directly to the public in the way that elected representatives are. That is the importance of parliamentary sovereignty and the judicial deference enshrined in, and running through, the Human Rights Act. Only in cases of ultra vires and judicial review will UK courts make such a declaration. In the event of a declaration of incompatibility, there is no obligation on Parliament or the Government to agree to make changes, but often they will respond by amending legislation to align with judgments from the courts—for example, under section 10 of the Human Rights Act. That fine balance is important to ensuring the ultimate accountability of us rule makers and legislators.
I believe that the principle of parliamentary sovereignty could be undermined by the remedy in the charter for disapplying statute, as we saw in the case of Benkharbouche in the Supreme Court last year. The effect is to disregard the relationship between the judiciary and the legislator and to render our Supreme Court more of a constitutional court than an appellate court, which interprets the law rather than declaring what the law ought to say.
Further uncertainty is caused by questions around the potential horizontal application of the charter—between individuals rather than between the state and an individual, as is the position in the Human Rights Act—and questions persist on its application to anything within the scope of EU law as opposed to the implementation of EU law. For me, those principles are not yet clarified and would only create more confusion, if the tabled amendments were to be passed. As I said, this is not about being in favour of or against rights; this is about providing a workable regime, rather than one fraught with confusion and at odds with fundamental principles.
We must not forget that the charter was not originally intended to be the source of rights for the UK. It was meant merely to codify existing rights, as an instrument of the EU, through the interpretation of the ECJ.
Sir Oliver Letwin
I think I agree with everything my hon. Friend has said. Does she agree that it would nevertheless be possible to put these rights under the umbrella of additions to the Human Rights Act and thereby enshrine them without creating a role for the Supreme Court to strike down Acts of Parliament?
Suella Fernandes
In principle, that would be possible, but I pray in aid the comments of my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox), who has just entered the Chamber, and who eloquently explained that there is no substantive need to do that because those rights are protected in existing legal frameworks or the common law.
As I was saying, the charter is an instrument of the EU for allowing the activism of the ECJ. It is a mechanism intended to ensure the supremacy of EU law in national legal orders, as is made clear in the preamble and in the recent case of Siragusa v. Regione Sicilia, in which it was made clear that the primacy of EU law was the priority. If we are truly leaving the EU, it no longer makes sense for us to be bound by a document that is furthering EU integration.
I appreciate the constructive attitude of all colleagues in attempting to help the Government to improve the Bill, but I gently caution against the risks presented by some of the amendments. The British people voted last year to restore sovereignty to UK courts and return supremacy to our judges, because they trust our legal order. Why do they trust it? They trust it because for centuries, since 1215 and Magna Carta, this country has been the home of civil liberties and human rights and has protected the vulnerable against excesses of power. That is a tradition of which we are proud and which will be protected under this Government.
European Union (Withdrawal) Bill
Oliver Letwin ExcerptsTuesday 14th November 2017
(6 years, 5 months ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 14 November 2017 - (14 Nov 2017)
Mr Leslie
There is a sort of sadism or masochism— I do not know which it is—on the part of a small number of hon. Members who relish the idea of a no deal scenario, saying, “The WTO has a fantastic set of rules —let’s just dive straight in.” However, I think there is consensus in the House that a transition is necessary, and if that is the case, we must work together across the parties to make sure we put in place the right legislative framework to deliver and facilitate such a transition.
The Prime Minister pointed out after her Florence speech that the European Court of Justice will
“still govern the rules we are part of”
during a transition. The Prime Minister is right. The European Union has said in terms that the entirety of the acquis communautaire needs to apply during a transitional period and that it is the equivalent of the single market, the customs union and the four pillars—the freedoms—within them. That has to include the European Court of Justice, if we are going to sign up to that set of arrangements. That is also the Labour Front Benchers’ policy for the transitional period. Indeed, they will want to speak to their own amendments detailing how they envisage the transition needs to take place.
It is worth reminding ourselves why it is that, during a transition, we will still need a resolution mechanism through the European Court of Justice. The right hon. and learned Member for Rushcliffe (Mr Clarke) mentioned in an earlier intervention that the UK took the European Central Bank to the European Court when there was a question whether the euro clearing arrangements might not be feasible in the City of London. From time to time, therefore, we have benefited from that dispute resolution arrangement.
What would happen if other circumstances arose during a transition? For instance, if UK citizens living abroad wanted to get their pension payments but there was an obstacle to them doing so, they would need to be able to seek redress, and that could be provided by the European Court. If a breach of competition rules adversely affected a UK firm, it might seek to get redress through the European Court of Justice. If the European Union started passing rules in conflict with the transition agreement, we would want the Court to resolve the situation in our favour. If UK firms were denied market access in the European Union, we would need resolution arrangements during a transition period. The application of the European Court of Justice is integral to such issues—the Prime Minister was right to accept that—but the Bill presents a problem.
Sir Oliver Letwin (West Dorset) (Con)
The hon. Gentleman has listed a series of issues, each of which is a legal issue. How does he suppose we could delegate to the Government a prerogative power to decide how the courts could decide those issues?
Mr Leslie
My proposed new clause seeks to elicit from the Government information on how they are going to deal with the issue. The Prime Minister has said that she accepts that the European Court of Justice would need to continue to have jurisdiction during a transition. However, there are problems in the Bill.
I invite hon. Members to turn to page 3 and read clause 5(1), which states:
“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.”
Therefore, under the Bill as framed, the ECJ arrangements will not apply beyond exit day. Further down on page 3, clause 6(1) and (2) similarly state that no regard will be made to the European Court after exit day.
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.
Dominic Raab
I sense that the hon. Gentleman recognises that he is putting the legislative cart before the diplomatic horse. Of course the implementing legislation relates to the agreement, and we need to have one in place to comply with the terms of any obligations, whether they are under the withdrawal arrangement, the implementation period or the future partnership deal.
I now turn to amendment 357, tabled by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), Chair of the Justice Committee.
Sir Oliver Letwin
I agree with what my hon. Friend is saying about new clause 14. May I take him back to clause 6(4)(a)? It says that the Supreme Court “is not bound”. Will that enable it to look at the plain words of the treaties, and not at the previous expansive teleological jurisprudence of the ECJ?
Dominic Raab
I am not quite sure that I understand my right hon. Friend’s forensic point. It is a feature of the common law that UK courts already take into account and consider principles and precedents from other jurisdictions, but they do so with full autonomy as to how they might apply it, where they have discretion under the normal canons of interpretation. We are effectively seeking to apply the same basic principles, through this Bill, to retained EU law and the interpretation of it.
Dominic Raab
I am going to make a bit of progress. Wider general definitions are set out in clause 14, and clause 15 provides an index of all the defined terms to make the Bill easier to use as a reference tool. To remove those definitions from clause 6 and only partially to reinsert them into clause 14, as the amendment would do, would undermine the certainty and clarity that we aim to provide.
Without statutory definitions of the different types of retained law, we would undermine the stability of our domestic legal regime after exit and exacerbate the burdens on the court system. Reinserting the definition of “retained domestic case law” into clause 14 would not alleviate that, because it would give rise to the question why that definition had been included, while others had not. Its placement in the body of clause 14, away from its original use in clause 4, would make the text far less easy to navigate—something that we are keen to avoid.
I turn to amendment 137, which is a joint SNP and Liberal Democrat amendment, in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry). Clause 6(2) will allow our domestic courts and tribunals to take into account any decisions made by the European Court, an EU entity or the EU itself on or after exit day, if they consider it appropriate to do so. That will ensure that our courts are not bound by the decisions of the European Court, while enabling them to consider its subsequent case law if they believe it is appropriate to do so. It is widespread practice in our domestic courts to carry out a similar exercise with the judgments of courts in other jurisdictions—I am thinking particularly of Commonwealth and common law jurisdictions—so, in principle, there is nothing new or particularly different here.
The UK has always been an open and outward-looking country, and our legal traditions reflect that. We pay attention to developments in other jurisdictions, including common law jurisdictions, and we embrace the best that the world has to offer, but we do so on our terms and under our control. That is decided by our courts and, ultimately, it is subject to the legislative will and sovereignty of this House. Amendment 137 is therefore unnecessary, as the Bill already provides that post-exit decisions of the European Court can be considered by the domestic courts.
Amendment 137 would go further, however, in that it would require our courts and tribunals to pay due regard to any relevant decision of the European Court. What does “due regard” mean? It is not defined and, indeed, it is far from clear. It is evidently intended to go further than clause 6, and tacitly urges our courts to heed, follow or shadow the Luxembourg Court, but there is no clarity about what would count as due consideration. The amendment would alter the inherent discretion the UK courts already have to consider, without fetters, the case law in other jurisdictions, and it seeks to apply to the European Court a procedural requirement that is stronger but so vague that it is liable to create more, not less, confusion. I hope that I have tackled, or at least addressed the concerns that the hon. and learned Lady has expressed in her amendment, and I urge her not to press it.
I will now turn to amendment 303 in the name of my right hon. Friend the Member for Chesham and Amersham. I thank her for tabling this amendment and for explaining it, as she did, in a very constructive spirit. I recognise that she is representing the interests of her constituents with her customary tenacity, but I will take a few moments to set out why we have taken our approach to the issues and my difficulties with her amendment.
Clause 6 supports the Bill’s core aim of maximising certainty. It is in no one’s interests for there to be a legal cliff edge. The Bill means that the laws and rules we have now will, as far as possible, continue to apply. It seeks to take a snapshot of EU law immediately before exit day. The Government have been clear that in leaving the EU, we will be bringing to an end the direct jurisdiction of the European Court of Justice in the UK. To maximise certainty, any question about the meaning of retained EU law will be determined in UK courts by reference to ECJ case law as it existed before our exit. Using any other starting point would be to change the law, which is not our objective. Our domestic courts and tribunals will no longer be bound by or required to have regard to any decisions of the European Court after that point, but they can do so if they consider it appropriate. These clear rules of interpretation are set out in clause 6.
Sir Oliver Letwin
May I try again to ask my hon. Friend the question on which both my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the former Attorney General, and I have been pressing him? My hon. Friend has just said that courts would be bound by judgments of the European Court about retained EU law. I asked him about clause 6(4)(a), which specifically says that
“the Supreme Court is not bound by any retained EU case law”.
It seems to us that he can have it one way or the other, so which is the governing clause—the one saying that the courts are bound to judge in accordance with the previous judgments of the ECJ, or the one saying that the Supreme Court is not bound by such a rule?
Dominic Raab
The point is that we take a snapshot of EU law, including case law, at the point of exit, but after that the normal rules of precedent will apply both to the Supreme Court and in Scotland. That will allow a departure from any precedents that apply, which again comes back to the question of how we achieve a smooth and orderly transition from retained EU law while making sure that, when push comes to shove as such case law evolves, the UK Supreme Court will have the last word. That is balance struck in the Bill.
Stuart C. McDonald
I suspect my hon. Friend is absolutely right. My point is that there are many more rules where it would surely be sensible for this Parliament to leave in place exactly as they are, and not only that but to seek to ensure consistency of application between the United Kingdom and the European Union so far as that is possible. Clause 6(6) allows for even modified retained law to be interpreted in accordance with retained case law and principles if that is what Parliament intends.
We need a clear expression of intention that by leaving the rules unmodified and retaining the same rules in place on exit day, we are seeking for them to be applied in the same way here as across the EU. That is a much more political decision than I think the Minister accepts, which is why it should not be left to judges; it should be expressed clearly by this Parliament that that is what we want, if that is indeed what we want to happen. That will help judges, it will be good for the six-sided widget manufacturers who will understand the rules under which they have to operate, and, most importantly, it will be good for all citizens who will benefit from clarity about their rights. It is therefore imperative that Parliament makes this happen, through amendment 137 or otherwise.
Sir Oliver Letwin
It pains me to say this, but I think that what several of us have been trying to say, put very briefly, is that clause 6 as it stands is a frightful mess. Of course I shall vote with the Government tonight, but I very much hope that after this debate—as did not happen after Second Reading—the Government will go away and think about clause 6. If they do not, what will happen is that it will, rightly, be massacred in the House of Lords, not least by former Law Lords. Once it has been, it will be very difficult for those of us who know it is a mess at the moment, in a way I am about to describe, to support an attempt to overrule the House of Lords. I beg those on the Front Bench to take seriously the problem we are trying to expose here. Let me try to describe it more clearly than perhaps I have managed so far, although I know that several of my hon. Friends have also tried.
It is clear, from clause 5(2), that the Government accept that, in relation to the retained law, the interpretative powers of the ECJ are extremely wide. It states:
“the principle of the supremacy of EU law continues to apply…so far as relevant to the interpretation, disapplication or quashing of any enactment”.
As my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) rightly pointed out, the supreme power that can be given to a court in this land is being attributed in the Bill to the ECJ in respect of existing legislation—namely, the power to quash an Act of Parliament. It does not get higher than that.
The Solicitor General
I am listening with great care to my right hon. Friend. Is not the simple answer that the Supreme Court will apply the rules of precedent in accordance with its practice direction of 50 years ago, which allows it to depart from previous case authority where it appears right to do so? Principles have been set out in domestic law by the Supreme Court and its predecessor, the judicial committee of the House of Lords.
Sir Oliver Letwin
With great respect to the Solicitor General, I draw him back to clause 6(3)(a), which directs the lower court in such a case to continue to apply the retained case law on the basis of ECJ jurisprudence, not Supreme Court jurisprudence. If that is not what the Government intend, they need to redraft clause 6(3)(a). They can have it one way or the other, but we cannot in this country have a legal system that tells our courts to do two different things. That is why the former judges are causing a harouche here. They are not being told what we, as a Parliament, are expecting of them.
The Solicitor General
What we are seeking to do is, in effect, settle the status of retained EU case law so that it is equivalent to that of Supreme Court authority. That is the explanation of the hierarchy that my right hon. Friend has, very fairly, outlined.
Sir Oliver Letwin
If the Solicitor General is trying to argue that he is aiming for equality between the jurisprudence of the European Court of Justice and the jurisprudence of the Supreme Court, that poses an insoluble problem for the lower court. One has to trump the other, but if the Bill is trying to make out that one trumps the other, it does not do it. It is really quite important for a human being who speaks English and reads the Bill to be able to see which trumps which.
Mr Grieve
I understand exactly where my right hon. Friend is coming from. I have to say that my reading of this was that once the Supreme Court had departed from the jurisprudence of the European Court of Justice in a particular case, thereafter the Supreme Court’s jurisprudence would be the one that the lower court would have to follow. However, that does not get us past the problem that the Supreme Court is provided with no guidance whatever about the purposive nature of EU law and how it should approach it.
Sir Oliver Letwin
Let me deal with my right hon. and learned Friend’s helpful intervention in two steps. If what he said in the first step about the supremacy of the Supreme Court’s rulings is to apply—which is not inequality, but puts the Supreme Court above the ECJ in the interpretation of these matters for retained law—that is a perfectly clear position, and one that I, as a matter of fact, would welcome; but then the Bill should bloody well say so. However, he is right, in that even if we presume that the Bill will be adjusted—as I am sure it will be, in the House of Lords—to make it clear that that is the case, we face the next problem, which is what it is that the poor old Supreme Court is meant to be doing.
Mr Jenkin
I understand the words
“in accordance with any retained case law”
in clause 6(3)(a), but I do not understand the words
“any retained general principles of EU law”.
That suggests that the court must adopt a methodology which has been retained. What we want our courts to do is revert to what they used to do, which was interpreting statute without reference to the jurisprudential and teleological techniques adopted by the European Court.
Sir Oliver Letwin
Notwithstanding the chuntering of my right hon. Friend the Member for Broxtowe (Anna Soubry)—and she is a friend of mine, but she is quite wrong about these issues—I happen to agree with my hon. Friend. My point is, however, that it does not matter nearly so much which side of the argument we are on as that we should be clearly on one side or the other.
I feel sure that the reason clause 6(3)(a) says that the court should judge
“in accordance with…any retained general principles”
is exactly the reason that was cited by the former Attorney General, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). As we see in clause 5(2), the purposive and teleological nature of the judgments, and the ability of those judgments to be used to quash even Acts of Parliament, should apply to the way in which our courts continue to interpret retained law. That, I think, is the intent of clause 6(3)(a).
This leaves us with the wide-open, yawning question of whether the Supreme Court should be making judgments when it is, we are told in clause 6(4)(a),
“not bound by any retained EU case law”,
but should nevertheless apply the general principles, and try to use the same purpose and teleological reasoning that the ECJ uses. We are not told, and the judges are not told. Far from creating legal certainty, clause 6 seems to me to create the largest possible degree of legal uncertainty. That is not a tolerable position. It is not one that the Government wish to achieve, and not one that the Opposition wish to achieve. I do not believe that anyone in the House of Commons wishes to achieve it. However, it is what the clause, as currently drafted, achieves.
Mr Leslie
The right hon. Gentleman is absolutely right to point out issues that need to be clarified as soon as possible, which is why new clause 14 says, in a very polite way, that it would help everybody if the Government, within one month of Royal Assent to the Act, could publish a report explaining in proper detail how EU retained law applies in that transition period.
Sir Oliver Letwin
The hon. Gentleman did not allow me to intervene on him, but let me say now that, unfortunately, his point is wholly irrelevant to clause 6; it relates to the transition which will be covered in another Bill. My concern is about the continuing state of UK law following exit. This is not going to be resolved by the Government producing a White Paper. It has to be resolved by clause 6 being drafted in a way that creates the very legal certainty that the Government so admirably wish to create, and which they at present so abundantly fail to do.
Sir William Cash
My right hon. Friend is asking some very interesting questions, but that does not necessarily mean—he, or indeed any of us in this Chamber, not being a judge—that he is drawing the right conclusions. He is pointing to several questions that need to be raised, however, although he has not mentioned that clause 5(1) states:
“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day,”
and that must include this Bill.
Furthermore, my right hon. Friend has not quite taken on board what the Solicitor General said with respect to our application of the stare decisis method of interpretation, which the Supreme Court will be obliged to apply after exit day. So he is asking some interesting questions, but I do not think we can necessarily draw conclusions from them.
Sir Oliver Letwin
I am grateful to my hon. Friend for his comments, and I am very happy to leave it to the Government to draw the conclusions and answer the questions in due course. I do not think clause 5(1) helps at all, however, because my hon. Friend is right that it excludes the possibility of subsequent enactments being subject to the principle of supremacy, but in clause 5(2) it is equally clear that, so far as the retained law is concerned, the principle of supremacy remains, and therefore there may be judgments in the future that already existing law, where there is judged to be a conflict between an Act of Parliament and an ECJ ruling, should have the result that the ECJ ruling triumphs over the Act of Parliament. That is a perfectly possible and sensible position to adopt. It is not one my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) and I would like to see, and I doubt that my hon. Friend the Member for Stone (Sir William Cash) would like to see it, but it is nevertheless a perfectly tolerable position—and it then needs to be carried over for the Supreme Court just as much.
My point remains, however, and it is a simple one: that if the Bill is trying to achieve a hierarchy here, it needs to state what the hierarchy is, and in stating that hierarchy, it needs to make it clear who governs whom. At the moment, the Bill does not do that.
Wes Streeting
It is a pleasure to follow the right hon. Member for West Dorset (Sir Oliver Letwin), who, in uncharacteristic fashion, had to knock several lumps out of his own Front Bench to get it to see sense around some obvious problems with clause 6. I have chosen to rise at this point in the evening to pick up on some of the inconsistencies and flaws, revealed during this debate, in the insufficient—in some cases, absent—replies from the Government Front Bench.
My hon. Friend the Member for Sheffield Central (Paul Blomfield) asked the Minister very clearly whether the jurisdiction of the ECJ will apply during the transition period. I do not believe the Minister has addressed that, but I am happy to give way if he would like to do so now.
European Union (Withdrawal) Bill
Oliver Letwin ExcerptsMonday 11th September 2017
(6 years, 7 months ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts
Mr Bone
I think the hon. Gentleman would agree that if the affirmative mechanism were used, the whole House would vote on the matter, so I do not accept his argument.
This Bill is about a principle: I think it is called the European Union (Withdrawal) Bill, and I think I introduced—
Mr Bone
Not for a moment, because on this particular point I think I am right: it is called the European Union (Withdrawal) Bill. I remember introducing a number of such Bills, or certainly speaking in favour of a lot of them. At that time, they were rather dismissed by the Government and we did not make much progress, so if I have an opportunity to support a Government Bill called the European Union (Withdrawal) Bill, as I do tonight, then I am going to take it, and I hope other Members do too. What the Bill primarily does is end European Union legislation and control over this House when we leave, while the second bit incorporates all EU laws into our laws—“retained EU law”, it is called. It is quite right that in future we should look at all those laws and decide whether to improve, reject or keep them, but there has to be a mechanism when we come out to have all those laws in place or chaos will occur.
Chris Bryant (Rhondda) (Lab)
This Bill is utterly pernicious. It is dangerous, it is fundamentally un-British and it has at its heart a lie. It pretends to bring back power to this country, but it actually represents the biggest peacetime power grab by the Executive over the legislature, by the Government over Parliament, in 100 years. It allows the Government to drive through changes to any law by the simple fiat of a Minister. That includes the powers of the House of Lords, the date of the next general election, the composition of the House of Commons and the number of Ministers. In the most extreme instance of all, it allows Ministers to alter the very Bill itself. That is a dangerous spiral of autocracy. Some Members seem to think it is a compliment to refer to them as Henry VIII powers. I know that Henry VIII, in 1536, legislated to allow two MPs to come here from Calais, but on the whole the Tudor exercise was not a proud demonstration of democracy. These are clauses of which Erdoğan, Maduro and Putin would be proud.
Sir Oliver Letwin
I am very grateful to the hon. Gentleman for giving way and I am sorry to interrupt his flow of eloquence. Is he conscious of schedule 7, in particular part 2, and especially paragraph 6, sub-paragraph 2, sub-sub-section (g), in which it is made perfectly clear that it is only by affirmative resolution, and not the fiat of Ministers, that amendments to Acts can be made?
Chris Bryant
I am perfectly aware of all the measures in schedule 7, but I merely point out to the right hon. Gentleman that, since the Bill itself can be changed by the Government, that is one of the elements the Government can change. What happens, even under the affirmative process—this is the problem with secondary legislation—is that, because there is no opportunity to amend, the Government will say, “Take it or leave it”. They will then suddenly say, “There is a real emergency and you’ve got to take it, because otherwise there will be chaos.” That is the sword of Damocles that Governments always hold over Parliament when a clause hands matters over to secondary legislation.
Sir Oliver Letwin
I am doubly grateful to the hon. Gentleman for giving way. Will he withdraw his remark that it is by ministerial fiat, and resort instead to the argument that the drafting would enable the Government to exert some pressure on Parliament, which presumably he and his colleagues would resist?
Chris Bryant
No, I am not withdrawing it. The Bill, at several points, makes it quite clear that the Government will hold powers to bring in regulations under secondary legislation through the negative process. The whole point about the negative process is that the statutory instrument comes into law unless it has been annulled, and the only process by which it can be annulled is if the Government themselves allow time for us to debate the matter and to have a vote. I would be happy to trust the Government if in recent years—I do not know why the Under-Secretary of State for Exiting the European Union, the hon. Member for Wycombe (Mr Baker) is looking up at that point; he never used to trust the Government until he became a Minister—they had been happy, since 2010 or 2015, to honour the traditional doctrine of the House, which is that if the Leader of the Opposition demands a vote and a debate in this Chamber there will be one. They have, however, consistently refused to do that. Enormous changes to our law, affecting student nurses and every student in the land, and affecting benefits for all our constituents, have been driven through via secondary legislation. It should never have been used for such measures, without us ever being able to insist on having a debate or a vote. The worst of it, to which I have already referred, is that when we do have a debate, the Government get to decide whether it should be in Committee or on the Floor of the House. If it is in Committee, all we get is a motion stating whether or not we have debated the matter in hand.
Chris Bryant
I am not giving way to the right hon. Gentleman again. I am sure he will manage to catch your eye, Mr Speaker.
It is not as if the Government do not accept that they will have to introduce hundreds and hundreds of statutory instruments. What they should have done, before introducing the Bill, was suggest an alternative way of dealing with this process over the next two years, so that there can be proper triaging of genuinely technical and minor consequential amendments to legislation that need to happen, and significant measures where the whole House would want to take a view.
Since 1950, Parliament has rejected only 11 statutory instruments, so we know that this is an autocratic process, but let me get to a much bigger worry for me: clause 9. I am sure that hon. Members have read it. It states very clearly:
“Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act).”
When I said last week in the House that this was truly exceptional, all sorts of Government Members, including Ministers, came up to me and said, “Oh no, there are hundreds of examples. I’ll give you examples by the weekend.” The first example I was given was the Scotland Act 1998, but it does not apply. Section 113(6)—I am sure the right hon. Member for West Dorset (Sir Oliver Letwin) will know this subsection—states:
“But a power to modify enactments does not…extend to making modifications of this Act or subordinate legislation under it.”
In other words, the Minister who told me that had missed out the word “not”, rather conveniently.
Then the hon. Member for Stone (Sir William Cash) came up to me and said, “No, you’re completely and utterly wrong. The greatest constitutional expert in this country”—I think he might have meant himself—“tells me that section 75 of the Freedom of Information Act 2000 gives the Government the right to change the Act itself by statutory instrument”. Unfortunately, he was wrong as well. It actually states:
“If…it appears to the Secretary of State…that…the enactment is capable of preventing the disclosure of information”—
in other words, gives the Government too much power to prevent disclosure—
“he may by order repeal or amend the enactment for the purpose of removing or relaxing the prohibition.”
It is a measure that gives the Government not more but less power. Even the Civil Contingencies Act 2004, which applies to circumstances when by universal accord—probably—the Government would need emergency powers, and which builds on previous Acts of Parliament, states categorically, in section 23(5):
“Emergency regulations may not amend…this Part of this Act”—
in other words, all the major elements of the Act.
If hon. Members who are trying to cover their tracks by saying, “We think all this secondary legislation business is terribly worrying, and obviously we’ll change that in Committee”, really care about those matters, they should consider the Government’s track record. What have they done recently? They engaged in what I would call jiggery-pokery with the DUP to ensure a majority—and let us hope we have a vote on Estimates Day on the £1 billion for the DUP; they delayed setting up Select Committees until now to make it impossible for us to scrutinise many of the measures going through during the summer months; and tomorrow, they are trying to make sure that, for the first time in our history, a Government without a majority in the House have a majority on every single Committee. If that does not make one question the bona fides of this Government, nothing will, and that is why I say to hon. Members: do not sell your birthright for a mess of pottage; vote against this Bill!
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
The Bill provides dangerous and sweeping powers to Ministers, rides roughshod through the devolution settlements, removes important legal protections and creates legal uncertainty, so, like most Opposition Members, I will definitely vote against Second Reading tonight.
Lots has already been said about the extraordinary proposed powers for Ministers in various Henry VIII clauses, to which the response has generally been, “Such clauses are already common”. It is true that they are far, far too common, but that does not mean that we should throw caution to the wind and hand them out like confetti. We should be fighting back against Henry VIII clauses, not handing out some of the most wide-ranging and dangerous-in-scope examples, as proposed in the Bill.
On the face of it, the proposed powers are so broad that Ministers could use Henry VIII powers to remove the very limits that are supposed to constrain their exercise, including the sunset clauses, and they are so wide that it is anticipated in the Bill that the Henry VIII powers will be used to create—guess what?—yet more Henry VIII powers!
Sir Oliver Letwin
Does the hon. Gentleman agree with me on the point that was discussed with the hon. Member for Rhondda (Chris Bryant)—namely, that the amendments of which he speaks could occur only after an affirmative resolution of the House?
Stuart C. McDonald
I do not necessarily agree with the right hon. Gentleman, nor do I have faith that even the affirmative procedure is necessarily a proper safeguard against wide-ranging powers such as those in the Bill. Such power does not belong in a Henry VIII clause at all.
Limits could be placed on the powers in the Bill at later stages. We could perhaps restrict which matters could be dealt with by delegated legislation, list further protected enactments, and define key terms such as “deficiencies”, or introduce a test of necessity, rather than rely on subjective ministerial judgment, and thereby improve the Bill. If it is to proceed, that must happen. But none of that would resolve the fundamental challenge of how we parliamentarians are supposed to play a substantial role in the whole process, beyond the usual inadequate procedures for scrutinising secondary legislation. Other Members have gallantly suggested alternative mechanisms—for example, some sort of filter—but to my mind they have been far too modest. At the very least, we need a procedure that allows us to table amendments to regulations, rather than meekly accepting take-it-or-leave-it, all-or-nothing proposals from the Government.
We are more than 13 months on from the referendum. Transposing EU law into UK law was always going to be a monumental task. The Government’s assuming that we could just use the same old procedures we always use was either negligence, complacency, arrogance, or a mixture of all three. Such procedures are not fit for the normal business of this House, never mind for the vital task that lies ahead.
With respect to the devolved competencies, the Bill rides roughshod over the devolution settlements. Can you imagine, Mr Speaker, the federal Governments of Germany or the USA—or of lots of other federal places—attempting such a unilateral power grab? It would be greeted with outrage, and rightly so.