European Union (Withdrawal) Bill

Robert Buckland Excerpts

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

[Joanna Cherry]

The point I am seeking to make is that having vigorously resisted my amendment, which I tabled for the benefit of everybody living in the UK in relation to issues of certainty about the interpretation of retained EU law after exit day, the Government have now conceded some ground—they are going to provide that certainty for EU citizens living in the UK—so why, if it is good enough for EU citizens living in the UK, is it not good enough for UK citizens living in the UK? Perhaps even more importantly—this adds force to my argument—senior members of the judiciary, both current and retired, have very serious concerns that the wording in the Bill as it stands will involve them in having to make political decisions.

In the past few days, we have seen the kind of vicious opprobrium that can be levelled at those who are seen to have made political decisions on the constitution where the EU is concerned, and earlier this year we saw the level of opprobrium directed at senior members of the judiciary for applying the law. The judiciary’s concern, therefore, is very real. I am not here just to advocate for the judiciary; I am here to advocate for democracy, the separation of powers, and the protection of the constitution. I may well have, as my ultimate goal, an independent Scotland with its own written constitution, but as long as Scotland remains part of the United Kingdom I am very interested in preserving UK citizens’ rights and democracy in the UK as a whole and protecting the notion of separation of powers within the constitution.

The Government do not have to take my word for it. They should look very closely at the evidence given to the House of Lords EU Justice Sub-Committee on 21 November. Lord Hope of Craighead pointed out that clause 6(2), as presently drafted, gives them a discretionary freedom rather than an obligation. Lord Neuberger, the former President of the Supreme Court, said:

“Clause 6(2), as drafted—it is a matter for a judge whether, and if so in what way, to take into account a decision of the Court of Justice on the same point in the regulation or directive, rather than in our statute. The problem for a judge is whether to take into account diplomatic, political or economic factors when deciding whether to follow the decision of the CJEU. These are normally decisions for the legislature, either to make or to tell judges what to do. We talked about our system in this country of judges being given a wide discretion, but this is an uncomfortably wide discretion, because a judge will have to take into account, or in some cases will be asked to take into account, factors that are rather unusual for a judge to have to take into account and that have political implications. It would be better if we did not maintain this system of judges being free to take decisions into account if they saw fit, if they were given some guidance as to the factors which they can and cannot take into account. Otherwise we are getting judges to step into the political arena.”

The issue of how the judiciary are to be given guidance on the interpretation of retained EU law arises directly from the wording of schedule 5 and takes us back to the wording of clause 6(2).

[The Solicitor General (Robert Buckland)]

indicated dissent.

[Joanna Cherry]

The Solicitor General is raising his eyebrows at me, but if he looks carefully at schedule 5, as I am sure he has, he will see that it talks about the procedure for interpreting retained EU law. That is why I am revisiting these issues. I am also revisiting them because former Supreme Court judges Lord Neuberger and Lord Hope gave this evidence to the House of Lords after our discussions on clause 6(2) in this House. It is new evidence that the Government really should take away and look at before Report.

--- Later in debate ---

[Joanna Cherry]

I am very grateful to the right hon. and learned Member for Beaconsfield for agreeing with me on this point. I would expect him to do so, because he, like me, will be paying very careful regard to what current senior judges and retired judges are saying.

I would like to conclude by quoting what Lord Thomas said to the House of Lords Committee after Lord Neuberger and Lord Hope had given their evidence. He said that he entirely agreed:

“It will be a very real problem for future judicial independence and the rule of law if this”—

the guidance—

“is not clarified.”

Put briefly, the problem is that leaving domestic courts free to make independent judgments on such crucial constitutional issues raises the prospect of politicising the judiciary’s institutional role in the Brexit process, resulting, potentially, in further regrettable attacks on the integrity of UK judges like those we saw earlier this year and last week. I therefore ask the Minister to address this problem before Report. I have no doubt that it will be addressed in the House of Lords, but I think it should be addressed in the elected House. The elected House should sort this out and not leave it to their lordships.

[The Solicitor General]

Given the spirit in which the hon. Member for Nottingham East (Mr Leslie) moved new clause 21, I was anticipating some form of Christmas truce, and that we would perhaps emerge from our trench lines and play football. As the debate went on, however—this is inevitable on such issues—divisions soon emerged. We have had quite a fierce debate on aspects of the policy surrounding our exit from the EU. First, there was the question of when an impact assessment is not an impact assessment. We then—I am not criticising the hon. and learned Member for Edinburgh South West (Joanna Cherry)—started down the road of, in effect, reopening the debate on clause 6(2). I did raise my eyebrows at her. I take the point that there is a link with schedule 5, but she will immediately recognise that the schedule tries to answer the old question of whether the recognition or understanding of EU law for the purposes of judicial interpretation is a question of fact or a question of law. It is a mechanism to an end, rather than the means of interpretation itself, which is of course within clause 6.

[Joanna Cherry]

My point is that, having rightly conceded that it is a question of law, the Government need to address how that law is interpreted by the judiciary.

[The Solicitor General]

I was about to say to the hon. and learned Lady that, tempted though I am to embark on a long debate with her about why it is important that those who criticise clause 6(2) come up with some sensible alternatives, I am conscious that the Mace is under the Table and that this is a debate in Committee on clause 13 and schedule 5. I do, however, commend to her the evidence I gave to the Lords Constitution Committee last week, at which the very questions she raises were asked of me by Lord Judge and Lord Pannick. In discussion with them, I made the point that, for example, a check list of dos and don’ts for judges would not be an appropriate way forward. There was a measure of agreement with that assertion, but inevitably these issues will be considered in the other place. Having said that, I think that she is right to make no apology for airing these matters in this House, because it is vital, on a Bill as important as this, that we, as elected Members, inform the other place that we have not given it cursory examination, but considered it very carefully indeed. To that extent, I am extremely grateful to her.

There have been many interesting and important contributions to the debate, and I urge the Committee to agree to clause 13 and schedule 5. It is good to see the hon. Member for Nottingham East back in the Chamber. I took the spirit with which he moved his new clause to heart, and I hope that I can respond in kind to him, but there is one word that perhaps sums up the debate, and indeed my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), who used it himself: sesquipedalian. It is a synonym for polysyllabic, and I am afraid that it is inevitable in such a debate that we will use words of more than two, three or, dare I say, four syllables. I will, however, try to curb my natural inclination to enjoy such diversions and to meet the hon. Gentleman’s argument that we speak in plain English.

On schedule 5, which is the meat of this debate, it is worth reminding ourselves—I say this particularly in response to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve)—that we are talking about means of publication and the rules of evidence to be applied. It is important that I gently remind hon. Members of that, lest we start to soar again into the stratosphere of constitutional debate and get unduly worried about the Government seeking to accrue massive power, when really we are talking about, first, how all this information can be presented to the public and, secondly, how the courts should be enjoined to take notice of it.

I will go through the points raised by my right hon. and learned Friend, particularly with regard, first, to paragraph 2 in part 1 on exceptions from the duty to publish. It is important to note that the direction power under paragraph 2(2) does not allow a Minister to make something retained EU law; it is there merely to enable the Government to ensure that legislation that is obviously not retained EU law does not have to be published. We are trying to minimise the potential for confusion, but we have to be realistic. It will not be possible to ensure without exception that only retained EU legislation is published. We do not think—quite properly, in my opinion—that it is the place of the Queen’s printer to make the determination of what such legislation is. That is why the Bill, quite reasonably, gives powers to Ministers to do this instead.

The powers in part 2 are not quite as alarming as might have appeared at first blush. They are clear and limited. The purpose of the creation of new rules of evidence is to allow them to sit alongside existing rules, including those in primary legislation. Importantly, these powers are subject to the affirmative procedure, which ensures a vote in this House. I will give my right hon. and learned Friend two examples of where the power to make a direction under paragraph 2 may be used in respect of all or part of an instrument. The first would concern an EU decision addressed only to a member state other than the UK. For example, the small hive beetle is a particular issue in Italy, and Commission implementing decision 2014/909 concerns certain protective measures with regard to confirmed occurrences of that insect. It is addressed only to Italy and quite clearly should not be published as part of EU retained law.

[Mr Grieve]

I rather assumed that, given the other extensive powers the Government are taking, we would have that deleted before it became retained EU law in the first place.

[The Solicitor General]

As I have said, this is a power of publication. It is important not only that we formally delete it, as my right hon. and learned Friend says, but that we provide that it does not end up in the wrong place and thereby mislead the reader or those who want to find an authoritative source for retained EU law. Another example would be EU regulations that have entered into force but are only partially applicable here immediately before exit day. One example is regulation 2016/2031 on protective measures against pests of plants, which has entered into force. One provision applies now, but the rest will apply in the EU only after exit day. To answer him directly, that is why the power exists.

I shall move on to paragraphs 3 and 4. Paragraph 3, as the keenest Members will have observed, is based on section 3(1) of the 1972 Act, which provides that

“any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any EU instrument, shall be treated as a question of law”,

and, of course, when something is a question of law, a court can determine the meaning of that law for its own purposes. Foreign law is normally a question of fact to be pleaded and then proved, often by recourse to expert evidence. Quite rightly, however, we want to allow a question of EU law to continue to be treated as a question of law after exit day, for certain purposes, such as when it is necessary to decide the question of EU law for the purposes of interpreting retained EU law in legal proceedings here.

[Lady Hermon]

Will the Solicitor General take a moment to explain the status of the long preambles to EU regulations and directives? We are taking all this back, so what is their status to be? How will the courts interpret the preambles to regulations and directives that become part of retained EU law?

[The Solicitor General]

Like any other part of a document, it will, of course, have effect. A preamble is an important statement. It is different from, say, an explanatory note or accompanying document—it is part of the measure and therefore will have force. We are seeking to download that documentation and make it part of our domestic law so that when we read it across, people will know that it is part of our domestic law, albeit in that category of retained EU law.

[Lady Hermon]

The hon. and learned Gentleman, like everyone in the House, will be well aware that our legislation does not have long preambles. I think that the judges need further guidance. He has indicated from the Dispatch Box that the preambles will have force. What weight should the judiciary across the UK give to those preambles, as they are not accustomed to them in British legislation? What does “force” actually mean?

--- Later in debate ---

[The Solicitor General]

To be fair to our judges, they already have the task of interpreting and applying EU regulations and all EU legislation that has direct effect. With respect to the hon. Lady, it will not be a new task for them, and I trust Her Majesty’s judges to get it right. As I said in response to the hon. and learned Member for Edinburgh South West, it is tempting for the House to try to set out a list of judicial dos and don’ts, but I do not think that that is an appropriate approach. I trust and respect the judiciary to get this right, as they almost invariably do. They answer the question that is put to them, and deal with it in a robust and independent way. As one of the Law Officers responsible for upholding the rule of law, I am happy to reiterate on the Floor of the House that I have the utmost confidence in our domestic judiciary to get it right.

Paragraph 4 is based on subsections (2) to (5) of section 3 of the 1972 Act. Those subsections distinguish between EU-related matters which are to be judicially noticed—such as EU treaties, judgments of the Court and the Official Journal of the European Union—and other matters which, in theory, fall to be proved to the Court, such as EU instruments. For the latter category, rules are provided about how such matters are to be admissible to our courts. It is worth noting that the power in paragraph 4 to make evidential rules is again subject to the affirmative procedure, as it will be used to replace rules commonly found in primary legislation. I think it is important for all Members to note the context in which these powers are to be used.

[Mr Grieve]

My hon. and learned Friend is giving a very helpful explanation of the powers in paragraph 4. He may agree that my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) should listen to it with care. There he was, expressing his great concern about the way in which legislation and EU law was handled in this country—and is still being handled before we leave the EU—but here the Government are replicating the process for when we have left. I am not allowed to speak in French in the Chamber, but plus ça change, plus c’est la même chose.

[The Solicitor General]

My right hon. and learned Friend is not just a lawyer but an historian. He will know that a previous Solicitor General, the late Lord Howe, steered the Bill that became the 1972 Act through the House of Commons. I nod to his memory. He knew what he was about, and he helped to produce an extremely important and effective piece of legislation. I make no apology for replicating aspects of it in this Bill.

Let me reassure the hon. and learned Member for Edinburgh South West that the fact that the provision is in a schedule is not significant. It is on the face of the Bill—in primary legislation—and it receives the same high level of scrutiny that it would if it were one of the clauses. I think it only right that clause 13 is drafted in a general way and there is particularity in the schedule. That is good, modern drafting practice, as I am sure the hon. and learned Lady will acknowledge, given her extensive study of other Bills on which we have worked together.

[Joanna Cherry]

That was not just my concern. It was a concern expressed by the Law Society of Scotland which, as I have said, informed the SNP amendments. May I take up a point made by the right hon. and learned Member for Beaconsfield (Mr Grieve)? These are extremely sweeping powers, but they are tucked away in a schedule.

[The Solicitor General]

I take the hon. and learned Lady’s point with the utmost seriousness, as I hope I always do, but, with respect to her, I think there is no real significance to be attached to the fact that the provision is in a schedule. This is hardly the longest piece of legislation that the House will have seen, but it will certainly be one of the most pored over—and rightly so. The hon. and learned Lady is doing justice to that through her interventions.

Let me now deal directly with new clause 21. Of course I recognise the concerns raised by the hon. Member for Nottingham East, but I do not consider it feasible to impose a statutory duty requiring summaries of all retained direct EU legislation. The scale of that task would be hard to overstate. I have used the word Sisyphean before, and I think that it applies in this case.

According to EUR-Lex, the EU’s legal database, there are currently more than 12,000 EU regulations in force. To impose a statutory duty of requiring plain English summaries of them would, I think, be disproportionate, given that many explanatory materials have already been issued by the EU about EU law—and, indeed, by UK bodies, including the Health and Safety Executive. One example is documentation on the registration, evaluation, authorisation and restriction of chemicals regulations published by the European Chemicals Agency. That measure has been mentioned many times in the Committee. I believe that, at present, the law is accessible.

--- Later in debate ---

[Mr Leslie]

I am grateful to the Solicitor General for addressing new clause 21 in that way, which will be useful to the poor members of the committee that has been given the task of sifting what should and should not be negative statutory instruments. The commitment to provide explanatory memorandums that are readily understandable is very helpful. Dealing with perhaps 12,000 regulations is, of course, a massive task, but does the Solicitor General not agree that that might be one of the unforeseen consequences of Brexit?

[The Solicitor General]

I think that there are many consequences on which the hon. Gentleman and I could dwell on another occasion. The fact is, however, that it is my task to try to ensure, as one of the Law Officers, that the principles of the rule of law to which my right hon. and learned Friend the Member for Beaconsfield referred in his speech—accessibility, clarity and certainty—are adhered to. We will deal with the issues so that we uphold those important principles, which were set out by the late Lord Bingham.

[Lady Hermon]

I am grateful to the Solicitor General for his generosity in giving way again. As he knows, we do not currently have a functioning Assembly in Northern Ireland, so we do not have Ministers who can abide by his direction about explanatory memorandums that will be issued when EU regulations and directives are brought back, in this context to Northern Ireland. Will he confirm that the Departments in Northern Ireland will have an obligation—a duty—to provide explanatory memorandums in that connection?

[The Solicitor General]

I think it must follow that when there is no Executive functioning in Northern Ireland and the Northern Ireland Office is carrying out functions as a substitute for the Executive, the duty will apply to that Department. I assure the hon. Lady that when we introduce statutory instruments, there will be explanatory memorandums from one source or another. Various Departments will have different responsibilities for the drafting and publication of the statutory instruments, and it will be their duty to produce the explanatory memorandums for Members to consider. I cannot envisage an exception being made. Northern Ireland will be covered in the way in which the hon. Lady wants it to be.

Paragraph 1(4) of schedule 5 enables the Queen’s printer to make arrangements to publish documents that may be considered useful in connection with anything else published under the schedule. That, I think, allows for the approach that the hon. Member for Nottingham East is requesting. We are committed to ensuring that the law remains accessible and comprehensible after exit day, and on that basis, I ask the hon. Gentleman to withdraw the new clause, which I think he said was a probing measure. He will have noted my comment, and I understand his position.

Amendments 76 and 77 have been addressed in particular by the hon. and learned Member for Edinburgh South West. Amendment 77 seeks to place the power for a Minister to make provision about judicial notice and the admissibility in legal proceedings of specified evidence of certain matters into the Bill. Judicial notice is a term that covers matters that are to be treated as already within the knowledge of the court, and are therefore not required to be “proved”, as other evidence would be, in the usual way. Amendment 76 would remove that power from schedule 5, while not replacing the provisions that clarify the scope of that power.

The power in part 2 of the schedule covers a limited, technical area, and the affirmative procedure will apply. My worry is that, with the removals that amendment 76 would make, we will lose clarity on how those powers are to be applied. I imagine that the intention of those who support the amendments is that those clarifying provisions would be inserted underneath the power, but I think that we achieve greater clarity by putting them in this schedule in the way that we have, so I respectfully ask the hon. and learned Lady and the other Members who have tabled the amendments not to press them.

Finally, I will deal with amendment 348. It is tempting for me to plunge into the debate about impact assessments and regulatory and sectoral analyses, but this is an amendment about this Bill, of course, and I remind all Members that an impact assessment for this Bill was published when it was introduced. That is in line with the general practice of Governments of different parties in recent years of publishing impact assessments alongside legislation. We want to continue pursuing that approach, but it must be done in a proportionate and appropriate way.

Amendment 348 would impose an open-ended requirement on the Queen’s printer to publish impact assessments, and could, I fear, create a duty it could not meet. The Queen’s printer does not have a responsibility to decide what should be published alongside legislation; it merely publishes what the Government ask it to, and quite rightly so, we might think. At the same time, Ministers have a specific responsibility, endorsed by Parliament, not to release information that would expose our negotiating position. This amendment would risk doing precisely that in a way that would put the responsibility on to a non-ministerial department—the Queen’s printer—which, with respect to it, is in no place to know what analysis is being undertaken, or to make a judgment about what can be published appropriately, safely and proportionately.

In the context of those remarks, I ask the hon. Member for Nottingham East to withdraw the new clause, and I support the passage of clause 13 and schedule 5 and beg that they stand part of the Bill.

[Mrs Moon]

I rise to speak in support of amendment 348 and new clause 21.

Today, I took the short and wide pavements over to the Department for Exiting the European Union; what a waste of my time that was. I went because I wanted to read what was written in relation to the workforce impacts for the large numbers of my constituents from Bridgend who work in the Ford engine factory and with Tata Steel. So I went to look in particular at the automotive sector and the steel sector reports.

The Ford engine plant is the largest engine works in Europe, and Tata next door in Port Talbot employs the largest number of people in steelworks in the UK. It was interesting that when I got there—having gone through the whole palaver of not taking my phone with me and being walked up to the Department, being asked to sign myself in and being handed the two big files—I found that the document started off by telling me what it was not: the first page I had to wade through told me that 58 sectorial impact assessments do not exist. So what I had gone there to see did not exist. Instead I was told that the paperwork consisted of qualitative and quantitative analyses in a range of documents developed at different times since—that is an important word—the referendum, so this was going to be new information: it was going to be information and analysis not available before the referendum and therefore, sadly, not available to the voters in my constituency or indeed to Members.

The 38—not 58—sector documents consist of descriptions of the sector, comments on EU regulations, existing frameworks for how trade is facilitated between countries and sector views. In the end, they are sector views, and nothing the Government had collected together was worth going there to read. They did not contain commercial, market or negotiation-sensitive information, as the documents told me, so why on earth could it all not just have been emailed to all MPs? There was nothing there that would upset anybody; all it would have done was insult people, not worry them. Apart from the sector views, it told us nothing that could not be found from a good read through Wikipedia.

There is no Government impact assessment, or indeed any assessment, even in the one part of the document worth reading: the sectoral view. The sectoral view is just there: the Government do not say what they are going to do about it, or even whether they think it is relevant—they just ignore it.

Sir David, what I was greeted with at DExEU would, in all honesty, have insulted us when we were both serving on the Select Committee on Defence; if that had come to us from the Ministry of Defence, we would have sent it back and said, “Do it again.” It was insulting. Members of the NATO Parliamentary Assembly would have been confused by such pathetic information being placed before them. So perhaps that is why we are not making it public.

I read the report relating to the automotive and steel industries. The report admits that automotive is central to the UK economy and a key part of our industrial strategy, so we would think that the Government would want to make sure that whatever they were going to do would protect it. The industry employs 159,000 people, with a further 238,000 in the supply chain. I did like one line, which said that the UK is a global centre of excellence for engine design, and offered the example of Ford; that is us down in Bridgend. Automotive earns us £40.1 billion in exports, and the EU is the UK’s largest export market, so we would think this is pretty important stuff.

What were the sectoral view and the concerns? Again, there was nothing new; my hon. Friend the Member for Ogmore (Chris Elmore) and I could have written this ourselves. In fact, we could probably have written a better sectoral analysis than anything the Government have produced; it was pathetic.