European Union (Withdrawal) Bill

Patrick Grady Excerpts

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

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

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

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

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

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

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

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

“if it considers it appropriate to do so.”

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

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

[Patrick Grady (Glasgow North) (SNP)]

Perhaps one reason why the Government and the Brexiteers, who appear to be paying precious little attention to anything going on in the Chamber, are not really interested is because they want a bonfire of such regulations and a race to the bottom. That is the ultimate goal of the hard Brexiteers on the Conservative Benches.

[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.

European Union (Withdrawal) Bill

Patrick Grady Excerpts

Committee: 4th sitting: House of Commons
Monday 4th December 2017 Commons Chamber

[Andrew Bowie (West Aberdeenshire and Kincardine) (Con)]

This debate concerns all constituent countries of the United Kingdom, but I will reserve my remarks to Scotland as I represent West Aberdeenshire and Kincardine.

As a Member of Parliament of the 2017 vintage, which is a very fine vintage, I am finding—along with everyone else, I am sure—that one of the most common questions asked of me on the doorsteps and in constituency surgeries is, “How did you vote in the referendum on membership of the European Union?” On such occasions, I deploy one of two answers. I either say, “I’m terribly sorry that I did vote to remain, but I promise you that the United Kingdom is leaving the European Union, and we will make a success of it”, or I answer, “Yes, I know. Like you, I voted to remain, so I’m sorry, but the fact is that we are leaving the European Union. And, you know what? I think we will make a success of it.” That is very easy. Being a Scottish Member of Parliament, another regular inquiry is whether I believe that powers returned from Brussels should be directly transferred to Holyrood. It is not a simple question. [Interruption.] No, it is not, and it requires more than a simple answer. Unfortunately, that is hard to get across on the doorstep, or even in this Chamber.

[Patrick Grady (Glasgow North) (SNP)]

Let me make it simple for the hon. Gentleman. The founding principle of the devolution settlement is that things that are not reserved are automatically devolved. Is it or is it not his belief that clause 11 fundamentally undermines that principle?

[Andrew Bowie]

Like my hon. Friend the Member for East Renfrewshire (Paul Masterton), I believe that changes will have to be made to clause 11 as it stands, but that we cannot support the amendments tabled by the SNP as they would fatally undermine the United Kingdom and the common market that we all share.

Let us look at the facts of the devolution settlements. The current devolution settlements reflect the UK’s membership of the European Union. They provide that devolved institutions cannot act or legislate incompatibly with EU law. This has meant that, while we have been within the EU, we have had overarching laws and frameworks across the UK, which has meant that businesses in the UK can trade with one another knowing that they share agreed standards and that we have agreed approaches on how to manage our shared resources. Ultimately, it has meant that Britain can enter into international agreements knowing that our whole country can meet our obligations. That is vital. It is complex and hard to explain to people when we are out knocking on doors, but it is vital that we try. The future of our internal market, which exists, and of our United Kingdom depends on our making a success of Brexit, and that means making a success of devolution and the settlement for our nations and regions.

European Union (Withdrawal) Bill

Patrick Grady Excerpts

Committee: 5th sitting: House of Commons
Wednesday 6th December 2017 Commons Chamber

[Stephen Gethins]

Not at the moment. I want to move on and there is plenty to go through.

The Bill gives UK, Scottish and Welsh Ministers the power to make instruments needed to ensure that our laws are still compliant with our international treaty obligations when we leave the EU. However, the Bill, as drafted, means that, unlike the UK Ministers, devolved government cannot use this power to amend directly applicable EU laws—amendment 171 aims to rectify that. Of course, the Minister will be backing that.

Amendment 174 is equally important. In fact, it would be good to understand exactly what is going on with the UK Government’s position on this matter. The Bill gives UK, Scottish and Welsh Ministers the power to make instruments needed to implement the withdrawal agreement. However, unlike the UK Ministers, devolved Administrations cannot use this power to amend directly applicable EU laws, and this amendment would rectify that anomaly, too.

Leaving the power restriction aside, the UK Government have planned to introduce separate primary legislation on the withdrawal agreement. What purpose, then, does clause 9 actually serve? And will the Minister explain how this restriction on devolved Administrations can exist, given that there will be a separate piece of legislation to give effect to the withdrawal agreement? These amendments were not drawn together just by the SNP; they drew support from across this House. If Members do not mind my saying so, that was not the most important part of this; the most important part was Scottish and Welsh Government officials sitting down together—this is not always easy—with SNP and Labour colleagues, and Plaid Cymru colleagues in Wales having significant input, too, to pull these amendments together. I hope the Minister will give them serious thought. I do not want to leave the EU, but this is a way of compromise. The right hon. Member for Broxtowe (Anna Soubry) may disagree with me on some things, but we agree that we are both willing to compromise on this, and the Minister needs to look at it. If he is serious about the devolved Administrations still working after we leave, I urge him to examine these amendments.

I turn to the devolved delegated powers. A lot of discussion and consultation has gone on in Holyrood on the subject, and I know that Liberal Democrat, Labour and Green Members, and others, have raised this. A lot of discussion and consultation has gone on with Scottish Ministers and members of other political parties to try to reach some consensus. On difficult issues such as this that is a good way of trying to reach out, and I commend Scottish Ministers for having done that. I also commend Opposition politicians in the Scottish Parliament for having sat down and tried to reach an agreement on this, as that was a responsible thing to do. Once again, the devolved Administrations are leading, where Westminster should perhaps follow.

As a result of that, the Scottish Government are committed to working with the Scottish Parliament and its Committees to agree a set of principles and a process that will ensure that the instruments that are made under the Bill receive the appropriate scrutiny. We hope that the UK Government will do the same for the UK Parliament, and we on these Benches look forward to those discussions. Again, I wonder whether the Minister can tell us what plans he has to reach a consensus across this House.

[Patrick Grady (Glasgow North) (SNP)]

Is this not one of the key differences? I refer to the undertakings the Scottish Government have given about how they will use the delegated powers that we are seeking through these amendments, as opposed to the naked power grab, through the Henry VIII clauses in this Bill, which we will come to on another day, by the UK Government.

[Stephen Gethins]

My hon. Friend makes a good point about the power grab, but of course Government Members do have the opportunity to prove us wrong and back the amendments that have been drawn together in a cross-party way. I very much look forward to doing so.

European Union (Withdrawal) Bill

Patrick Grady Excerpts

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

[Hannah Bardell]

The House has heard many technical and legalistic arguments focused on the economic, trade and legal impacts of our leaving the EU, but so far in the Brexit process and debate, the interests of children and their rights have been barely mentioned. That said, I was pleased to hear the point made by my hon. Friend the Member for Glasgow Central (Alison Thewliss) about baby milk and the related regulations.

It is important to focus on children, their rights and the effect of Brexit on their future. In all of this, our children have had very little voice or decision-making opportunities for the future of the UK. All our children depend on UK, EU, international and UN provisions and treaties to protect them and to secure their future rights. It is sad and ironic that it was this Conservative Government who refused to let 16 and 17-year-olds participate in the EU referendum.

No one said it better than my former colleague and my dear friend, the previous Member for Gordon—I know all Members miss him as much as I do—who summed up the hokey-cokey politics of this Conservative Government by saying:

“The case for votes for 16 and 17-year-olds has been demonstrated by the Scottish referendum—not as some academic exercise but on the joyful and practical experience of a generation of Scotland’s young people…Claims that teenagers are disengaged with politics or incapable of understanding constitutional issues was blown apart by the great contribution by young people in Scotland during the campaign…It is a ludicrous situation and nothing better illustrates the total lack of imagination which typifies the Conservative Party at its worst and their headlong pursuit of self-interest…It encapsulates Tory arrogance and the insult to young people will neither be forgotten nor forgiven.”

That is an extremely good point.

I remember studying, not that long ago, politics at the University of Stirling, where I learned about further EU integration. It seems very sad that the students of the future will be studying this process, our performance and the decisions that were made. I wonder what the textbooks and political history books will say and how they will read. I think they will say that this has been a political catastrophe—a series of unfortunate events.

[Patrick Grady (Glasgow North) (SNP)]

One key thing that future students will read about and find incredibly difficult to understand is how the same people who for 40 years argued that the EU had taken sovereignty away from this Chamber were prepared to give that sovereignty so quickly to the United Kingdom Government Executive. That is what all these clauses, including clause 8, will end up doing.

[Hannah Bardell]

Not surprisingly, I could not agree more with my hon. Friend.

European Union (Withdrawal) Bill

Patrick Grady Excerpts

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

[Mr Rees-Mogg]

My right hon. Friend has put the matter so well that I can move on to my final point.

I wish to make a point about the speech of my right hon. and learned Friend the Member for Beaconsfield and Henry VIII powers, where we have come from and where we are going to in relation to new laws being implemented in the United Kingdom. The part on which I agree with him is that we in this House should always treat Henry VIII powers with the deepest suspicion. The job of the House of Commons is to protect the powers of the House of Commons against an over-mighty Executive. Dare I say to those on the Government Front Bench that all Executives seek to be over-mighty? It is in their very nature, whether our side or Labour is in power. Those of us on the Government Back Benches should always remember that we will not be in government forever. [Hon. Members: “Shame.”] I am sorry to say that, but I take a very long view of history, and I can see that at some point in the next millennium we may, heaven help us, have an SNP Government—

[Patrick Grady (Glasgow North) (SNP)]

We have already got one.

[Mr Rees-Mogg]

But not for the United Kingdom as a whole—no, not yet. I will wait for the SNP to put up a candidate in North East Somerset, and we will see how well that goes down.

--- Later in debate ---

Other Members who have touched on this have not actually gone to look at the impact assessments we were promised. When I turned up, all my electronic devices were taken away from me and two officials sat over my shoulder as I read. I thought that the nuclear codes might be in there somewhere, but I was sadly mistaken. I am not entirely sure what all the security was for. Eighteen months after the EU referendum, we still do not have something on the economic implications that can be published. Given the security, given the fuss and given the time that Ministers have had, I was pretty underwhelmed by what I read.

[Patrick Grady]

I had a similar experience to my hon. Friend. I delved into these documents with great excitement only to find it was clear from them all—I do not think we are allowed to quote directly, lest we be struck down by lightning—that they do not contain anything that is either commercially sensitive or sensitive to the negotiations, so why do not the Government just put them all in the public domain?

[Stephen Gethins]

My hon. Friend makes an excellent point, and I agree. Having had a look at these assessments, I am not entirely sure what the fuss is about. As we undergo the biggest economic and constitutional upheaval since the end of the war, we have a flimsy report covering 39 industries, not 51, as I was told more than a year ago. The information I have seen would be pretty accessible to the public, and it strikes me that the only reason we have not seen the assessments is that this is a Government who do not know what they are doing, who have not done their homework and who are prepared to drag us and the industries into the abyss. It strikes me that this is more to do with internal Conservative party feuding and less to do with our economy.

European Union (Withdrawal) Bill

Patrick Grady Excerpts

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[Mr Lidington]

The hon. Lady and I have known each other for a long time, and having now had overall responsibility for intergovernmental relations and devolution in the United Kingdom for seven days, I am happy to undertake to make it a priority to have that conversation with her to ensure that her views are properly heard.

Government amendments 26 and 27 will replace the current requirements for devolved Ministers to seek the consent of the United Kingdom Government when exercising the correcting power in specific ways with requirements instead to consult the United Kingdom Government. That achieves the same effect as Committee amendment 169, which was proposed by the Scottish and Welsh Governments and tabled in the name of the hon. Member for Cardiff South and Penarth (Stephen Doughty). Having discussed the matter with those Administrations and having listened to the debate in Committee, we have agreed to accept that proposal, with the addition of extending the change to the power by conferring it on the Northern Ireland Executive.

The United Kingdom Government have a vital role in considering the broader consequences for other parts of the UK where devolved Ministers legislate under these powers, and we think this change is justified. It remains important that, in using the conferred power, no action is taken that inadvertently places us in breach of EU law while we are still a member state or that would prejudice or pre-empt the outcome of negotiations; but on reflection, we consider that the devolved Administrations consulting with the UK Government before legislating in these specific circumstances relating to our negotiations will provide a sufficient safeguard and will preserve the autonomy of the devolved Administrations in correcting their laws.

[Patrick Grady (Glasgow North) (SNP)]

Will the Minister give way?

[Mr Lidington]

The hon. Gentleman will forgive me, but there are a lot of amendments in this group and I want to try to do justice to them.

Government amendments 25, 28 and 29 tackle a technical but important issue by allowing the devolved Administrations to use the powers conferred on them by schedule 2 to modify directly retained EU legislation in areas where a common framework is not needed. While we work with the devolved Administrations on where frameworks are or are not needed, we are maintaining existing common approaches to provide much welcomed certainty. To aid that, direct EU legislation that currently applies uniformly across the UK will be corrected at UK level in the first instance to avoid the risk of early, unhelpful divergence in areas where it may ultimately be determined that a common approach should apply. We have listened to the views of Opposition Members, my hon. Friends who represent constituencies in Scotland and Wales, the devolved Administrations and Committees in the devolved legislatures.

Given that the UK Government are committed to making swift progress on the frameworks, we agree that, where a matter is released from the clause 11 competence arrangement, the powers in the Bill should be fully available to the devolved Administrations to modify retained direct EU legislation, and we intend that that will be in the majority of areas. We and the devolved Administrations continue to make good progress in those framework discussions. We intend to agree as many areas as possible where frameworks are not needed in advance of exit day, so that those areas may transfer directly to the devolved Administrations without the need for an intervening period in which to operate the holding pattern described in the clauses.

Like my hon. Friends the Members for Harwich and North Essex (Mr Jenkin), for Ochil and South Perthshire (Luke Graham), for Stirling (Stephen Kerr) and for Aberdeen South (Ross Thomson), I am disappointed that we have been unable to reach agreement with the Governments of Scotland and Wales to make amendments to clause 11 on an agreed basis. That remains the Government’s ambition. When I spoke to the Deputy First Minister of Scotland and the First Minister of Wales a few hours after being appointed to my new responsibilities last week, I emphasised that I was instructing our officials to work with theirs even more intensively to try to achieve that agreement.

The discussions so far have revealed a great deal of common ground between us. For example, we are all agreed that common UK frameworks will be required in some areas even after we have left the EU. That was also recognised in Committee and reflected a shared understanding about protecting the internal UK market, managing common resources and meeting international obligations. But this is a complex area and we need to get it right, and we do not believe that amendments 3, 6 and 13 would achieve that. It is our assessment that in only a minority of cases will we require a legislative framework, in whole or in part.

I can confirm today that the Government will shortly publish our analysis of the areas where frameworks will and will not be needed, so that we are transparent about this progress as our discussions on both clause 11 and frameworks move into greater detail. I also wish to acknowledge the co-operative approach of both the Scottish and Welsh Governments and their officials in working with us towards the right outcome. I have full confidence that we will deliver this Bill with the legislative consent of both the Scottish Parliament and the National Assembly for Wales.

Let me turn to the Opposition amendments. Amendment 3, from the Opposition Front-Bench team, and amendments 6 and 13, standing in the names of the hon. Members for North East Fife (Stephen Gethins) and for Arfon (Hywel Williams), relate to the temporary arrangements established by clause 11, so that we might determine where and how frameworks would operate. The trouble with these amendments is that they would strip away certainty in areas where our citizens and our businesses rely on having common approaches across the UK, and they would pre-empt our framework discussions. They would risk our ending up when we leave the EU with unchecked divergence where common approaches were in place, with no guarantees of if and when they might be re-established. That is simply not good enough. I do not think it right to accept such amendments, which would inadvertently risk creating new barriers to living and doing business right across the UK, however well-intentioned they might be.