Prorogation (Disclosure of Communications)

Debate between Oliver Letwin and Dominic Grieve

Monday 9th September 2019 Commons Chamber

[Mr Grieve]

Seeing that this would be a Humble Address to Her Majesty the Queen for the documents, I very much hope that there could be no question other than that they will be provided, because it is the custom and practice and the convention that such Humble Addresses are responded to positively by the Government.

The reason why we have these rules is to manage difference. They provide a framework for our debates that—because, as I say, there is a high level of trust— enables us to manage sometimes serious difference, such as we undoubtedly have at the moment, in a moderate fashion. We are able sometimes to say strong words to each other, but to come together afterwards with a high level of appreciation of the other’s point of view and an absolute certainty that one side is not trying to trick the other. My concern is that there is now increasing and compelling evidence that this trust is breaking down and, indeed, that there is cause to be concerned that the conventions are not being maintained.

This of course arises particularly because of the decision to prorogue this House. I do not think I need to go into too much history to point out that, in recent years, the power of Prorogation has been used for only two reasons. The first is to have the short interval, usually of no more than seven or eight days, between one Session and the next, so that a Queen’s Speech may take place. It has also been used at times to extend time for a general election in order to maintain a power by which this House could be recalled in an emergency before it is finally dissolved. The use being made of it by the Government in proroguing this House until 14 October is, in current times, unprecedented. It is a long period, and all the more startling because it takes place against the background of what is without doubt—it is a bit difficult to gainsay it—a growing national crisis.

[Sir Oliver Letwin (West Dorset) (Ind)]

Does my right hon. and learned Friend agree that what makes this particularly important is that it was open to the Government to move a periodic Adjournment—or, as we normally call it, a sittings motion—which could have been approved by the House to achieve the same effect? However, the Government chose to use the prerogative power, which in effect enables the Prime Minister to advise the Queen to remove Parliament from the scene of action. It is therefore obviously of the greatest possible importance what the Government’s motive in so doing was, and the papers he describes will reveal that motive in a way nothing else can.

[Mr Grieve]

My right hon. Friend is right on both points, and I shall move on in a moment to develop in a bit more detail the issue of the documents.

Northern Ireland (Executive Formation) Bill

Debate between Oliver Letwin and Dominic Grieve

Ping Pong: House of Commons
Thursday 18th July 2019 Commons Chamber

[Mr Grieve]

Before I give way, let me just add that the House should be perfectly aware that I abstained on the amendments concerning abortion and same-sex marriage precisely for that reason, but I do not think that it is illegitimate of Members of this House to feel that the time has come to express a view in the absence of an Administration.

Let me turn to the issues relating to Lords amendment 1, which I support, and the amendment to it proposed by the right hon. Member for Leeds Central (Hilary Benn). We face an extraordinary situation. To do its business, the House has to sit. It is perfectly normal for the House to assert that it wants, at various times, to be able to consider issues, particularly in the Northern Ireland context, in which the situation changes rapidly. Yet we have been confronted with a most unusual situation: there is a suggestion that there would be periods when, for other reasons, we would be prevented from sitting. We are responsible for ensuring, or trying to ensure, good governance. I think that is why we have the portcullis as our symbol: we are supposed to be the protectors of the nation.

[Sir Oliver Letwin]

I hope my right hon. and learned Friend might be willing, particularly as he is a former Attorney General, to join me in stating specifically, for Pepper v. Hart purposes, that the intention of those who have been involved in the preparation of the amendment is uniformly to ensure that it absolutely and explicitly blocks the use of the prerogative power to prorogue our Parliament.

[Mr Grieve]

Yes, I am entirely happy to make that assertion, because when I realised that it was an issue, I also realised that it was a threat to the good governance of this country and, indeed, to the good governance of Northern Ireland in the run-up to setting up the Executive, which I very much hope will come into being very quickly. That is precisely why we have endeavoured to do it in a manner that is wholly compatible with the Meeting of Parliament Act 1797, as was pointed out, while making it clear that, in the particular context of this legislation, this House wishes to emphasise that Prorogation is not a reason why it should not be meeting to consider these matters on the day appointed.

For those reasons, I commend this amendment to the House, and I shall be supporting it. I also agree with what has been said by others that, if we do not make such an assertion in the light of the extraordinary statements that have been made about how our business might be conducted, our role as that protector of our democracy will be seen to be shot to pieces.

Northern Ireland (Executive Formation) Bill

Debate between Oliver Letwin and Dominic Grieve

3rd reading: House of Commons & Committee: 1st sitting: House of Commons & Report stage: House of Commons
Tuesday 9th July 2019 Commons Chamber

[Mr Grieve]

I find it very difficult to answer that question. I accept that, because of priorities in this House, it is often the case that insufficient attention is paid to Northern Ireland. During my career, I have had the inestimable benefit of having the views of large numbers of people in Northern Ireland imparted to me. I have been able to go, for example, to the annual conference of the Centre for Cross Border Studies, and anybody who has gone to look at cross-border issues will realise just how catastrophic a no-deal Brexit would be. I would simply say to my hon. Friends that I appreciate that there are doubtless areas on which they are expert and I am most certainly not, and I do not claim to have the greatest expertise on Northern Ireland— I do not represent that place, although I love it very much—but it is a thing that matters to me very much and that should matter to every hon. Member in this House.

[Sir Oliver Letwin (West Dorset) (Con)]

May I just take my right hon. and learned Friend back to the question he was asked a moment or two ago about whether these amendments, in the absence of new clause 14, will prevent Prorogation? Would he agree that there is at least a perfectly serious argument that might run in the Supreme Court—that is, that statute law trumps prerogative even where it does not directly take the prerogative on, and that if that were argued successfully, these amendments would be sufficient to prevent Prorogation?

[Mr Grieve]

Yes, I agree. It is perhaps, as lawyers would say, a moot point, but my view is that because it specifies in statute particular days on which things should be happening in this House, it is arguable that it therefore replaces the prerogative because the Queen in Parliament has decreed that certain things should happen by law, and that, of course, replaces the royal prerogative as exercised by Ministers.

[Mr Grieve]

Yes, I do. I agree entirely, and we should try to avoid doing that, but for the reasons that I have just given—before we start worrying about court challenges—the amendments that I have tabled, taken together, are worth having. After all, even if it does not go to court, it is a pretty clear signal to whoever is Prime Minister that this is what the House wants to be doing in October. I think that is worth having. Of course, we do at times hear that the rumours about Prorogation are completely misplaced and that nobody in their right mind would do it; in my judgment, nobody in their right mind should, so I very much hope that it will not happen, but these days one has cause at times to worry. For that reason, I think this is a very good series of amendments.

Of course, if the other place in its wisdom decides to look at the totality of our amendments, decides that new clause 14 would add value and places it in the Bill, this House would have an opportunity to consider that decision before the Bill goes through, and either to accept it or reject it.

[Sir Oliver Letwin]

I am very sorry for intervening again, but I think that it may be important later in the other place that this debate be brought out into the open here. Would my right hon. and learned Friend first agree that the reason why Mr Speaker quite rightly did not select new clause 14 is that it would not have been within the scope of the Bill as unamended, but that, if amended by my right hon. and learned Friend’s amendments, new clause 14 would probably be brought into scope? Secondly, does he agree that their lordships in the other place take a rather wider view of scope than is typically taken here, and therefore there is ample reason to suppose that, given the majorities we know to exist in the House of Lords, new clause 14 in some form is actually likely to be added to the package and therefore to be operative?

[Mr Grieve]

Yes, I do agree. That is certainly one of the reasons this should go to the other place. I slightly hesitate over the issue of scope, particularly because we have a ruling from the First Deputy Chairman that I would not seek in any way to impugn. It is perfectly clear ruling with a perfectly understandable base. I say no more about it than that.

European Union (Withdrawal) Bill

Debate between Oliver Letwin and Dominic Grieve

Committee: 8th sitting: House of Commons
Wednesday 20th December 2017 Commons Chamber

[Sir Oliver Letwin]

I am delighted by that. It is important to people on both sides of the arguments that it be something that Parliament can do, not that Ministers may simply do on their own. I know that my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), my south-western neighbour at the end of the Bench, very much agrees with that proposition, as does my right hon. and learned Friend the Member for Beaconsfield in the middle.

[Mr Grieve]

I just want to thank my right hon. Friend for having intervened in this matter and found a way to resolve the issue. As my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) just pointed out, the oddity of the original amendment 381 was that it would have imposed a rather serious obstacle if, for any reason, there had been an agreement for the article 50 period to end earlier.

[Sir Oliver Letwin]

That is right. My right hon. and learned Friend and my hon. Friend the Member for North East Somerset have always actually maintained the same point, which is that we need to keep the two sets of law in sync with one another. That is the overriding purpose of the whole Bill: to ensure that UK law matches what is happening in the international law arena and that we then import the whole of EU law into UK law for the starting point of our future.

European Union (Withdrawal) Bill

Debate between Oliver Letwin and Dominic Grieve

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

[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.

[Sir Oliver Letwin]

Will my right hon. and learned Friend give way?

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

European Union (Withdrawal) Bill

Debate between Oliver Letwin and Dominic Grieve

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[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.

[Mr Grieve]

I agree that environmental law is an area that could do with the scrutiny that I have just outlined.

[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?

[Mr Grieve]

Yes, absolutely, and that was what new clause 55 sought to achieve, although it did provide the opportunity of looking at purely technical amendments—those would be really technical, and I do not wish to burden the Committee with complete trivia.

--- Later in debate ---

[Mr Grieve]

My right hon. Friend is absolutely right and we are completely of one mind on this. I am talking about retained principles—the principles that were seen to exist at the date of exit.

[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.

European Union (Withdrawal) Bill

Debate between Oliver Letwin and Dominic Grieve

Committee: 2nd sitting: House of Commons
Wednesday 15th November 2017 Commons Chamber

[Mr Grieve]

I read the right hon. Gentleman’s new clauses, and I can understand where he is coming from. If one looks at the totality of the amendments and new clauses in today’s debate, one sees that they are all trying to do, roughly speaking, much the same thing. The question is not the exact route that is adopted, but how the Government respond to that challenge. I do not want to take up more of the House’s time, but—

[Sir Oliver Letwin (West Dorset) (Con)]

In case my right hon. and learned Friend is coming to a conclusion, I want to ask him this question. I think we all hope that the Government will propose some mechanism for sifting, but does he intend to make a binary distinction between delegated legislation, which could mean exclusively negative resolution, and primary legislation? Alternatively, is he willing to accept, as I think I would be, the possibility of a sift that involves allocating some tasks to the affirmative resolution procedure, and only some others to primary legislation?

[Mr Grieve]

I understand my right hon. Friend’s point, but I wonder whether we are in danger of straying into another topic. There is an issue about the operation of the mechanism for implementing the changes and taking us out of the EU. I keep confidently hoping that the Government will be able to respond positively to that by having an adequate sifting mechanism for Parliament. Even when that has taken place, the changes envisaged for EU law are, as far as I can see, of a semi-permanent or permanent character. They are about the nature and quality of the law that we have decided to bring in, rather than the manner in which we have decided to do so. New clause 55 is very similar to new clause 25, tabled by the hon. Member for Bristol East (Kerry McCarthy), and they seek to look at the matter in slightly different ways. The question is how the Government will respond.

That raises, perhaps, a more fundamental issue about the process of debate in this House, on which I hope the Government will be able to provide some reassurance this afternoon. I do not know how other hon. Members found it, but I found yesterday hugely instructive, not because it led to some votes—it did so, but let us leave the votes out of it—but precisely because it gave us the opportunity to have a cogent and sensible debate about problems on which, as we proceeded, we began to perceive that there might indeed be a degree of consensus. The problem is that we always run up against the sense that if the Government come to the Dispatch Box and say, “This is very interesting, and we will think about it,” but we do not do something about it then and there, we may lose our opportunity ever to do something about it. We will, of course, have the opportunity of Report stage, should the Bill have one.

European Union (Withdrawal) Bill

Debate between Oliver Letwin and Dominic Grieve

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

[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.

European Union (Withdrawal) Bill

Debate between Oliver Letwin and Dominic Grieve

Thursday 7th September 2017 Commons Chamber

[Mr Grieve]

It is by no means the only ambiguity in this Bill, but I agree entirely that to ask the judiciary to carry out an interpretation of something that is so oddly and, I have to say, vaguely worded is a recipe for disaster and is something this House should avoid doing.

[Sir Oliver Letwin]

I agree with my right hon. and learned Friend about that and hope that in Committee we will be able to address that head on. My personal belief is that we should address it in the form of changing clause 6(3), to ensure that it is open to—indeed, that we give an inducement to—our courts to move back to the plain words of the texts of the treaties and directives, so far as they judge that can be done without injustice to individuals. That is the principle that most people who voted for leave, and indeed many of us who voted on balance to remain but have been extremely sceptical about the activities of the ECJ and the Court of Justice of the European Union for many years, would wish to see enshrined in this legislation. I suspect that I might even carry my right hon. and learned Friend the Member for Rushcliffe on that point, because he was, somewhat surprisingly, very sceptical about the ECJ on many occasions—I say surprisingly, because, despite his enthusiasm for the EU, which I never quite managed to share, actually he is a very good parliamentarian and a very good lawyer and recognises that we do not want a court that makes its own law. So I think we have a way forward that we can seek to follow in Committee.

None of that should obscure the fact that this is a good and necessary Bill. Nothing that the Opposition have said has suggested that there is any structural deficiency. Therefore, I will vote for it, and I hope all my friends and colleagues on the Conservative Benches and, indeed, many on the Opposition Benches will do the same.

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[Mr Dominic Grieve (Beaconsfield) (Con)]

First, I congratulate the hon. Member for Canterbury (Rosie Duffield) on her maiden speech, which I greatly enjoyed. Canterbury is a city I know well: it is where I spent many of my early years at the Bar, cutting my teeth as an advocate. I hope I can remind myself of some of the lessons I learned there in contributing briefly to this debate.

I shall support the Government in the vote on Second Reading. The Bill is vital: we cannot leave the European Union sensibly without such a Bill on the statute book. The Government need support, and they will have it from me. Nevertheless, I regret to have to say to my right hon. and hon. Friends that unless the Bill is substantially improved in Committee, I will be in no position to support it in its current form on Third Reading.

In many respects, it is an astonishing monstrosity of a Bill. Its first failing is its entreatment of EU law itself. I do not much care for EU law—I did not much enjoy practising it, although I had outings to the European Court of Justice when I was Attorney General—but it is a different form of law from our own, which we imported, and which, in many ways, has filled vast areas that otherwise we would have developed in our own domestic law. So we need to nurture it, because we cannot get rid of it overnight without leaving enormous gaps. In addition, there are safeguards within EU law that do not exist within our law and need to be retained, because otherwise EU law will act unfairly. Again, they are different from our own.

I have a number of areas of concern. The Bill does not deliver clarity. Its importation of EU law is hedged around with ambiguities that undermine one of the key pillars of the rule of law, which is certainty about what the law is. One example is given by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), but there are numerous others. For example, Clause 2(1) is so widely drawn that retained EU law will include domestic law that was implemented entirely domestically but has a link to the EU. That would then make something like the Equality Act 2010 susceptible to change by statutory instrument in clause 7—something which I suspect everybody in this House would regard as completely unacceptable.

[Sir Oliver Letwin]

Does my right hon. and learned Friend agree that we could address that in Committee not through a change to clause 2, which is pretty fundamental, but through changes in clauses 7, 8 and 9, with which we are already concerned?

[Mr Grieve]

Absolutely. I entirely agree with my right hon. Friend. These are all curable, and readily curable, with just a little bit of will.

There is another example on which we have already touched. EU law never used to be divided between primary and secondary legislation. Interestingly, it is all being treated as primary, which has the nice merit—I am sure that someone in Whitehall dreamed this up—that none of it would be susceptible to be quashed by a challenge under the Human Rights Act. That may not matter, but it is capable of causing unfairness when it is linked to the fact that the other area of challenge that would normally be available, which is a challenge because something is in breach of the general principles of EU law, has been delicately removed along with the charter of fundamental rights.

I hope that I may be forgiven for saying this about my right hon. Friend the Secretary of State. I have had some wonderful times with him—journalists once said of him that he used to stand up and club Labour Home Secretaries over the head and then I would come along and dissect them in public with a legal scalpel—but I just slightly detect that he was looking a bit like a fugitive as the legal scalpel started to move in on him. I do not know where that idea came from, but somebody will have to sort it out. We will have to do it at the Committee stage of the Bill. There are other examples that I could give, but I do not have the time to do so right now, so I shall leave them for the Committee stage in which I intend to participate actively.

Let me move to the Henry VIII clauses. The current situation is ridiculous. I recognise that there will have to be Henry VIII clauses. Of course we cannot carry out this massive revolutionary transformation by primary legislation alone, but we can ensure that we have the necessary safeguards in place. The most obvious one is to have an established parliamentary system of scrutiny to ensure that the different types of statutory instruments that will be needed are correctly farmed out. I have no doubt that my right hon. Friend is right that the vast majority of them will be technical and of very little account, but some will be extremely important and will need to be taken on the Floor of the House. We need to have a system in place to do that.

European Union (Notification of Withdrawal) Bill

Debate between Oliver Letwin and Dominic Grieve

Committee: 2nd sitting: House of Commons
Tuesday 7th February 2017 Commons Chamber

[Mr Grieve]

I agree entirely with my right hon. Friend. I hope that the Government will listen because, as I say, this issue will not go away. It will keep coming back to dominate our politics until we have resolved it satisfactorily. That said, I would be being curmudgeonly towards the Minister if I did not thank him for having listened on this issue, for which I am grateful.

[Sir Oliver Letwin]

My right hon. and learned Friend has thanked the Minister, but I think that the Committee ought to thank my right hon. and learned Friend. He has set out the responsible version, which we did not hear from Opposition Members, of how to deal with this issue.

[Mr Grieve]

I am grateful to my right hon. Friend. He made some of the points that I might have made in his speech. He and I approach the issue from a similar angle.

The Government's Plan for Brexit

Debate between Oliver Letwin and Dominic Grieve

Wednesday 7th December 2016 Commons Chamber

[Mr Dominic Grieve (Beaconsfield) (Con)]

As the Member of Parliament for a constituency that voted narrowly to remain, I have felt ever since the summer that my task is to help my colleagues in the Government to achieve Brexit in a manner that is satisfactory and will lead to the best possible outcome for everyone in the country, and today that is still exactly what I want to do. The difficulty, as I see it, is that what we have heard over the last two months in particular—the vitriolic abuse, the polemical argument without any substance, and the ignorance of some of the basic ABC of our constitution—has reached a point at which I sit in the Chamber and listen to utterances that border on the completely paranoid. The nadir, for me, was to sit one evening and hear a Minister of the Crown—not one of those who are on the Front Bench today—say that one of the Queen’s subjects who was seeking to assert her legal rights in the Queen’s courts, and who was, I might add, subjected to death threats as a result, was doing something, or had achieved something, that was unacceptable. If we continue like this, we are on the road to a very bad place.

In my opinion, while my duty as a Member of Parliament is to seek to uphold Brexit and help the Government to achieve it, that does not mean that I must suspend all judgment. On the contrary, we have a clear responsibility to scrutinise legislation, to ask awkward questions, to express our views and, if necessary, to intervene in the process if we think it is going off the rails to such an extent that it is no longer in the national interest. That is why I felt frustrated by the Government’s apparent refusal to come up with a coherent plan.

When article 50 is triggered, we shall be embarking on a process which, in reality, the Government themselves will have great difficulty in controlling. I certainly do not take the view that it is the duty of the House to micromanage the Government, and it has certainly never occurred to me that we should lay down prescriptive rules for what the Government should be trying to achieve, along the lines feared, I think, by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). I do not think that that is realistic. However, I do think we are entitled to know what the Government are intending to achieve, in broad terms, so that we can debate it and influence it. Some Members may then have to accept that they are in a small minority in respect of some of the legitimate issues that we can debate within the parameters of Brexit itself, and then help to sustain the Government as they go ahead with their work. The fact that the Government have that mandate and have the approval of the House, will, in my view, help them immeasurably in their negotiations.

[Sir Oliver Letwin]

My right hon. and learned Friend is making a powerful speech. Does he agree that if this House and the other place sought to amend the triggering legislation, that would have the effect of making the mandate justiciable?

[Mr Grieve]

It depends on whether we were seeking to limit the mandate in carrying out amendments. As I have not seen what the Government are proposing by way of primary legislation, I have no idea to what extent it might or might not be amendable, but it certainly would not have crossed my mind that one of the sorts of amendments I should produce would involve creating justiciable targets. I think my right hon. Friend knows me well enough from my time as a Law Officer to know that my views about declaratory legislation and targets are probably fairly unprintable—and certainly unutterable in this Chamber—and I do not recommend it to anybody.

On the question of where we are going after that and considering the issues around Brexit, I simply point out that some of the things said, even today by Government Members who I respect, seem to me to be rather fanciful. We have heard a lot about the sovereignty issue requiring us to withdraw from the European Court of Justice. I have to gently point out that if we are going to stay within the mechanisms of justice and security, which the Secretary of State said he believed was in the national interest, although our withdrawal from the EU will mean we will no longer be subject to the direct effect of the ECJ, decisions of the ECJ on interpreting the treaty will continue potentially to have force on us in this country. That is not surprising because we are signed up to over 800 international treaties which have arbitral mechanisms for resolving disputes.

So unless we start getting out of this fantasy element about Europe as a pariah entity, we are not going to start getting down to a realistic assessment of what it is in our national interest to remain adherent to and what it is in our national interest to withdraw from, even though we will be outside the EU and therefore not subject, for example, to direct effect at all.