European Union (Withdrawal) Bill

Pat McFadden Excerpts

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

[Mr Pat McFadden (Wolverhampton South East) (Lab)]

The Minister has talked quite a lot about the purpose of this exercise being to provide continuity and certainty, but is it not the case that that will be true only on day one? He cannot guarantee any continuity or certainty on day 100 or day 1,000, but is not that, for many of his colleagues, the whole point of leaving the European Union?

[The Solicitor General]

The right hon. Gentleman is old enough and wise enough to know that, while this exercise of freezing the law in time on exit day has to be done, the law is a constantly evolving creature. None of us can stand here and bind the hands of our successors. What we can do, as men and women of good will seeking to achieve as sensible and smooth a Brexit as possible, is provide legal certainty. That is why I am here. That is why I have undertaken to try to deal with this task. That is why this Government are doing everything they can, within the time they have, to get this right.

--- Later in debate ---

[Sir Oliver Letwin]

Sorry, clauses 2 and 3. I do apologise. My right hon. Friend accurately corrects me, and I hope that Hansard notes that correction.

If that is therefore what my hon. and learned Friend said, I have nothing further to add to it. However, I want to point up one connection with the useful discussion we had yesterday about clause 6. The more I have thought about this over the past few weeks, the clearer it has become to me that the ultimate resolution to the problem of the unrestrained abilities of the Supreme Court under clause 6(4)(a) is to make it clearer in the Bill that the method by which any change in the snapshot legislation that my hon. Friend the Minister of State, Ministry of Justice, was talking about should be made not by the Supreme Court, but by Parliament. The point is that, so far as there is fundamental change, and in particular so far as there is fundamental change in the interpretation of the plain words of directives, regulations and treaties, it should be made by primary legislation.

That puts primary legislation in the right place, and hence puts the Supreme Court in the right place, because the Supreme Court is there to interpret the common law, which this is not, and to interpret statute, which this could and should be, and it can certainly also interpret European law using European principles except to the extent that, through statute, this Parliament has changed those things.

That would be a perfectly recognisable pattern. As I mentioned yesterday, it is not my ideal pattern, as I would like to unwind in the Bill a good deal of the expansive interpretations of the European Court of Justice that have gone before exit day, but I recognise that the Government might not want to do that. It does not worry me if they do not, because this Parliament, post-Brexit, will have the ability to do it, which is, from my point of view, even speaking as someone who on balance was a remainer, the big advantage of exit. We will be able to make those decisions as a Parliament through the proper process of primary legislation.

By coming forward with the package that I think my hon. and learned Friend the Solicitor General offered the Committee a little while ago in this debate, he will also point the way to at least a great part of the solution to the problems of clause 6. While we are at it, just as a bonus, we have not yet debated clause 5—assuming I have my numbers right—but we will do so anon. When we do, we will hit exactly the same set of issues in a slightly modified form. While we are at it, we will hit this again in clause 7, in another way. The same package that the Solicitor General has suggested will handle all the problems arising from clauses 5 and 7, and point the way to handling the problems with clause 6, once we have got rid of the clause 6(4)(a) error.

We have a pattern here that can make the Bill work in its own terms. It can provide the flexibility that the Government need in order to correct deficiencies, to transpose or adjust things when references are technical or incorrect, to bring to the House important matters that need adjustment but are not fundamental, and to give this Parliament the power it needs to change the law fundamentally and to make that something that Parliament does, rather than the Supreme Court. If we can get to that point, we will have a Bill that is perfectly good in its own terms and that will serve the purposes that the Government intend for it, and I shall rest happy in the knowledge that I have in a small way been able to contribute to a series of debates that will have provided legislation of which we can be proud.

[Mr McFadden]

I want to make a few points about new clause 22, which my hon. Friend the Member for Lewisham East (Heidi Alexander) spoke to a little while ago. Language can obscure things as well as shed light on them, and that is true of much of our Brexit debate. For example, we were told that this was all about taking back control but, as we have seen many times since the referendum, the Government have stoutly resisted giving control to Parliament, resisted publishing a White Paper, and resisted allowing us a meaningful vote. They have finally caved in on having legislation, but they are still resisting allowing us a meaningful say on a real choice, rather than a choice between whatever is negotiated and no deal and WTO rules. We were told that Brexit would save huge amounts of money, yet one of the critical issues in the talks is how to settle a multi-billion pound divorce bill that was mentioned by no one during the referendum campaign. So language can obscure as well as shed light.

Perhaps this is nowhere more true than in all this talk about “the negotiations”. Unsurprisingly, the public place great faith in anything called “negotiations”. If I were buying a house from someone—I hesitate to tread here after yesterday’s exchanges—who was asking a certain selling price and I offered a certain purchase price, the negotiation would involve us meeting somewhere in the middle. There might be parts of the Brexit talks that involve negotiation in that sense of the word.

I serve on the Brexit Select Committee, but I should add that I do not seek to speak on its behalf here today: this is my interpretation of the situation. Last week, the Committee spent a couple of days in Brussels and Paris talking to some of the people involved in the so-called negotiations. There may be negotiation about parts of this process, particularly in phase 1, but the point that I want to make—which refers to new clause 22 and the European Economic Area—is that our future relationship is less about negotiation than about a fundamental choice. What is the relationship that we want to have with the European Union? Where do we want to be in relation to its system, which is a market with rules? The people that we talked to about this round of talks made it pretty clear that this is a choice. It is a decision.

Basically, there are two ways of doing this. The first is the way outlined by my hon. Friend the Member for Lewisham East—that, having voted to leave the European Union, we remain part of its single market system and adhere to the rights and obligations that that gives us, and in so doing, we put the economic prosperity of our people first. That is one way, and I wholeheartedly back my hon. Friend’s assertion that the referendum did not decide this question. The referendum decided our membership of the institutions. The referendum did not decide on the manner of leaving the European Union. There are countries outside the European Union that take part in this system, and we know which they are. I do not think that this is a perfect solution by any means. There is, of course, the issue of having a say in the rules, and whatever our say is outside, it will not be like the say that we have now. My hon. Friend the Member for Lewisham East covered that as well.

The other option involves a free trade agreement, something akin to what has been negotiated with other countries. This matters to our economy. We have talked a lot in these debates—and I have been guilty of it myself—about the importance of manufactured goods. We have talked a lot about cars, we have talked a lot about aerospace, and we have talked a lot about agricultural products. All those are all hugely important to our economy, but 80% of it consists of services. We are hugely successful at them, and we are hugely successful at exporting them. Tens and hundreds of thousands of jobs are sustained by financial services, insurance, legal services, business services and so on. I must say to those who advocate the FTA option that the blunt truth is that no existing FTA would give us anything like the access to the services market that we currently enjoy as members of the single market.

That, fundamentally, is the choice that we must make. The Solicitor General resisted the existing comparisons, as the Government have throughout: they have said, “We will have a bespoke arrangement that is somehow different from this.” Let me tell the Solicitor General candidly that not a single person on the other side of the table last week thought that that was possible.

This is a decision, a choice. What kind of Brexit will we have? Fundamentally, at some point, the Government will have to face up to the truth, be candid with their Back Benchers and the House as a whole, and be candid with the public. The choice, in the end, is not just a choice between systems, but a choice between economics and nationalism. It is a choice about whether we put the prosperity of our constituents first or the nationalist ideology that is driving this agenda, and I know which I prefer.

[Mr David Jones]

I wish to speak about amendments 87 and 217, tabled by the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards) and his Plaid Cymru colleagues.

Amendment 87 provides that the expression “EU-derived domestic legislation” in clause 2(2) should not include

“any enactment of the United Kingdom Parliament which…applies to Wales and does not relate to matters specified in Schedule 7A to the Government of Wales Act 2006”,

and seeks to apply the same provision, mutatis mutandis, to Scotland and Northern Ireland. The matters specified in Schedule 7A are those matters that are reserved to the United Kingdom Parliament under the terms of the Welsh devolution settlement. According to the explanatory statement attached to the amendment, its purpose is to

“alter the definition of EU retained law so as only to include reserved areas of legislation. This”,

it explains,

“will allow the National Assembly for Wales and the other devolved administrations to legislate on areas of EU derived law which fall under devolved competency for themselves.”

However, the actual effect of the amendment would be far more wide-ranging.

The purpose of clause 2(1) is specifically to preserve EU-derived domestic legislation after exit day in order to ensure—as we have heard—that there is a coherent statute book. The expression “EU-derived domestic legislation” is defined in clause 2(2), and the category of legislation that is thereby preserved is very widely drawn. The effect of the amendment would be that any legislation applicable to Wales that might otherwise fall within the definition of EU-derived domestic legislation would fail to do so if it were also an enactment of the United Kingdom Parliament. There will be a wide range of such legislation in force that predates devolution and also postdates it, right up to—I venture to suggest—the enactment of the Government of Wales Act 2017.