European Union (Withdrawal) Bill

Robert Buckland Excerpts

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

[Paul Blomfield]

I will seek to live up to that expectation, Mr Speaker; I do not intend to speak for long.

Amendment 4 addresses one of the six key tests that we set out for the Bill before we could support it. Those tests were not set out simply on Second Reading or in Committee, but 10 months ago, when the White Paper outlining the Government’s approach was first published.

The tests drew support across the House, but sadly the Government have made no significant concessions. In Committee, a meaningful vote for Parliament on the final deal was secured, of course—but against the wishes of the Government and only by decision of the House. Our five amendments at this stage address those other tests: facilitating a transitional period; protecting the devolution settlement; protecting workers’ rights; reining in the Henry VIII powers; and, in amendment 4, retaining the EU charter of fundamental rights in UK law.

The objective of amendment 4, which would retain charter rights in UK law and afford them the same level of protection as those in the Human Rights Act, has wide support on both sides of the House. It is part of a sensible and responsible approach to Brexit that respects the referendum decision but does not sacrifice jobs and the economy or rights and protections on the altar of ideology. It is a sensible approach for which I believe there is a majority across the House—one that goes well beyond those who voted for amendment 7 in Committee. It is also a consensus that I think is reflected in the other place, from which I suspect we might see the Bill return with some improvements, as the right hon. and learned Member for Beaconsfield indicated.

The Opposition support amendments 42 and 43, which would enable UK courts to continue to refer matters to the Court of Justice and to consider CJEU decision to be persuasive. As well as amendment 55, we also support new clause 13, amendments 40 and 41, on clarifying the status of retained law, and new clause 16 on enshrining equality rights, which stands in the name of my hon. Friend the Member for Enfield, Southgate (Bambos Charalambous). We also support new clause 7 on animal sentience and new clause 9 on the acquired rights of Anguillans—an indication of the enormous complexity and range of the issues we face with Brexit. We accept that Government amendments 37 and 38 improve the Bill, but we fear that they do not go anywhere near far enough on legal challenges based on the general principles of EU law, which is why we prefer and support amendment 57, which was moved so ably by my hon. Friend the Member for Bristol East (Kerry McCarthy).

Amendment 4 addresses the concerns we raised in Committee around the charter of fundamental rights and provides an opportunity for the Government to think again. Human rights should not be a dividing line between parties in this House, so even at this stage we hope that the Government, either here or in the Lords, might accept our approach in the amendment and perhaps even accept the amendment today and avoid the vote that we will otherwise be seeking. As we said in Committee, the charter has been critical in developing, strengthening and modernising human rights in the UK. To abandon it risks reducing protections for UK citizens and leaving a gaping hole in our statute book.

The Government claim that the Bill is about legal continuity and certainty in what will become the new category of EU retained law, but all of that EU law is interpreted through the charter, so excluding it would leave our legal system inconsistent and incoherent. To avoid defeat on this issue in Committee the former Justice Minister, the hon. Member for Esher and Walton (Dominic Raab), committed to publishing a memorandum that he claimed would confirm the Government’s case that the charter was unnecessary by identifying where all of these rights could be found in EU retained law or existing domestic law.

Obviously that argument overlooked the main point of the charter, which was to bring all of these rights together in one codifying document, but as an Opposition we were willing to be helpful and awaited the memorandum with interest. We wanted to see a comprehensive document that identified not only the source of each right in the charter but—crucially—how the existing level of effective recourse would be guaranteed. The memorandum was published on 5 December, and it acknowledged that the Government envisaged all these rights being scattered back to their original sources. They are removing the material source of the rights, in the form of the charter, and leaving citizens with the formal source. Now that is a legal way of describing the problem, but I am not a lawyer. It means in effect that it will become more difficult for any UK citizen to assert their rights post-Brexit.

In their defence, the Government insisted that nothing would be lost if we dropped the charter because it created no new rights.

[The Solicitor General (Robert Buckland)]

indicated assent.

[Paul Blomfield]

I see the Solicitor General nodding. On this crucial issue, however, the Government’s cover has been blown. For this, I would like to thank the new Under-Secretary of State for Exiting the European Union, the hon. Member for Fareham (Suella Fernandes) —I am sorry she is not in her place today—because in an article in The Daily Telegraph on 18 November last year she made our case clearly. She expressed her concern about the charter precisely because it provided new rights. She wrote that it went beyond the European convention on human rights by creating “extra layers of rights”, and she went on to bemoan the fact that these extra rights covered

“everything from biomedicine and eugenics to personal data and collective bargaining”.

I appreciate that her thinking on this will probably be in line with that of her new boss, the Secretary of State for Exiting the European Union, because he relied of course on the extra rights provided by the charter when he brought his own court case against the now Prime Minister asserting his right to personal data.

--- Later in debate ---

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

Thank you, Mr Speaker. I want to speak briefly to amendments 55 and 56 and to probe one simple issue: in short, what happens if there is a failure to correct a deficiency in EU law, so that it cannot operate effectively after exit, and how can we maximise the chances that such a thing does not happen?

We have had plenty of debate on how we can restrict Government powers to correct deficiencies so that such powers cannot be used to undermine the incorporation of EU rules and so that we do not end up with some sort of watered-down or dysfunctional version of the original. However, perhaps the more realistic possibility, and just as much of a danger, is that we end up with a watered-down or dysfunctional version of EU rules not because of the inappropriate use of those powers of correction, but because of a failure to use them at all in appropriate circumstances, either by accident or design, or if various incorporated rules and regulations are simply allowed to fester away uncorrected and unable to operate effectively. So, I asked at Committee stage, “What happens if there is a citizen before a court in this country, seeking to establish rights under retained EU law when that retained EU law is actually riddled with deficiencies? Is the court supposed to try and make that work? Does the person simply lose their ability to exercise that right?”

My amendment 55 simply requires the court to interpret retained EU law—as far as possible—in such a way as to make it function effectively, borrowing shamelessly from the language of the Human Rights Act. I fully acknowledge that that in itself would not take us very far, but it is there to prompt a response from the Government. What should the court do in those circumstances? There are alternative courses of action that this Parliament could take, not just in amending clause 6 but in other parts of the Bill. We could expressly require EU law to be interpreted so as to be given effect “as if the UK were still a member state”, with further provisions about how that should be done. We could put in place a procedure to allow courts to flag up rules that they have found cannot operate effectively. We could put Ministers under an obligation or a duty to ensure that retained EU laws operate effectively; indeed, amendment 57 and new clause 19 are of that nature. Alternatively, as amendment 56 suggests, we could simply require the Government to publish a list of all the deficiencies they found in retained EU law that they are not seeking directly to rectify.

In short, the task of ensuring that we have a functioning rule book or statute book on exit day is twofold. Parliament must protect important rights, not only by preventing inappropriate use of Henry VIII powers, but by providing a means of ensuring that deficiencies are rectified where necessary, either by the Government, or by Parliament or by our courts, and I still think we have a long way to go in that regard.

[The Solicitor General]

I wish to speak in support of amendments 37 and 38 in the name of my colleagues in Government.

I will try and answer the question that was put to me by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), who has been getting frustrated in these debates about the somewhat technical nature of ministerial responses. Well, this is a very technical Bill. Like its illustrious predecessor, the European Communities Act 1972, it is a Bill of constitutional importance; it is a framework Bill. It is not—I stress this, because it is most important—it is not a Bill that seeks to convey a policy or a particular aspect of policy that we have discussed today. It is a framework that is designed to ensure that the law that is applied up to exit is downloaded in as clear and proper a way as possible because, to be consistent with the rule of law, the law needs to be accessible, it needs to be clear and it needs to be well understood. That is the fundamental basis of my concern about today’s amendments—that in seeking to retain the charter of fundamental rights in domestic law after exit, not only do we sow potential confusion but we fundamentally misunderstand what that charter means in the first place.

[Sir Oliver Letwin]

The Government have introduced welcome amendments to clause 7. While my hon. and learned Friend is talking about clarity, I just want to ask him to confirm, at this early stage in his remarks, that the Government will bring forward the amendments that we were hoping for, and that I think my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and I were, if not promised, at least led to expect, when clause 6 is discussed in the other place.

[The Solicitor General]

I am grateful to my right hon. Friend. If he had sufficient time at his disposal, he might have seen the evidence that I gave to the Constitution Committee in the other place, in which the issues in clause 6 were discussed—the interpretive provisions that he and I and others debated in Committee.

May I come back to the fundamental point about the charter? It was never intended to create new rights. It was a document that reaffirmed rights that already existed in EU law.

[Vicky Ford]

Will my hon. and learned Friend give way?

[The Solicitor General]

I will not; I am developing my argument. It was a point that was made clear, not only in the charter itself but in protocol 30, which was signed by Poland and the UK at the time of the Lisbon treaty. In addition—this is important, and this, it seems to me, having listened carefully to the debate, is not understood—the charter does not apply to member states in everything they do. Although it applies to the EU and its institutions in all areas, it binds member states only in so far as they are acting within the scope of EU law. Therefore talking about the charter in a domestic context misunderstands its purpose and point: it was not drafted in that context. I am afraid that there has, I think, been a regrettable misunderstanding about that in this debate.

[Mr Grieve]

I do not think I have been under any misunderstanding at all. That is why I have kept pressing the Government to leave the charter to one side but look at the general principles of EU law necessary to bring challenges to retained EU law, brought into our own domestic law, that was not enacted by this Parliament—and without which, frankly, the coherence of EU law starts to disintegrate. That is the issue. Linked to that, of course, is the other issue of protecting some of those fundamental rights, perhaps in a different way, that matter to so many on both sides of the House.

[The Solicitor General]

My right hon. and learned Friend and I agree about general principles, which is why the general principles that underpin the recently drafted charter remain and, of course, do apply in respect of retained EU law. His second point about the means by which individuals challenge that is, of course, a matter of ongoing debate. I shall come back to the points raised in not only his amendment, but mine as well.

[Mr Kenneth Clarke]

My hon. and learned Friend kindly said that he would try to answer my question. The question was: what harm has the charter of fundamental rights done and what evil is he trying to avert? It is true that, unexpectedly, new rights have been created under the charter and he is right that those rights have relevance to EU law. But the whole point of the Bill is to retain large amounts of EU law and its principles. What is the point of the change? This is policy in this Bill—it is a policy change. I fear that it is a signal to some sections of my party: the only part of the acquis communautaire that will be abolished mentions the wicked words “fundamental rights”, and that is why it is being removed.

[The Solicitor General]

The position that my right hon. and learned Friend took on the charter back in 2007 is the right one. As I was saying, it is in the interests of maintaining the rule of law that we maintain clarity, consistency and a clear authoritative source for those rights. My genuine concern about the importation of this particular charter into our domestic law is that we will sow confusion. That is not good for the maintenance of the rule of law, for the citizens of our country, for the future development of the law or for the position of this place vis-à-vis that development.

[Sir William Cash (Stone) (Con)]

I entirely endorse what my hon. and learned Friend is saying, not least because of the acquis itself. Secondly, there are the adjudications under the European Court itself. Thirdly, the charter is like a legal ectoplasm: it seeps into everything. There is no way in which we would ever be able to extract ourselves from the entirety of the provisions in perpetuity.

[The Solicitor General]

I am grateful to my hon. Friend, who raises a genuine concern about the impact of protocol 30. Many Opposition Members were here 10 years ago; they were anxious then to make sure that the protocol was included in the Lisbon treaty. They are now happy to resile from that position and take an entirely different view. I take great issue with that: the legal principles were the same then as now. Nothing has really changed about the potential force of the charter, so I am rather bemused to hear about that volte-face on the part of many Opposition Members.

[Lady Hermon]

I am grateful to the Solicitor General for giving way, particularly given that from a sedentary position earlier he described an intervention of mine as rubbish—but let us slide away from that. As he will know very well, human rights were an essential component of the Belfast agreement, and the protection of human rights was at the core of the Patten reforms of the Royal Ulster Constabulary. For the people of Northern Ireland, therefore, the protection of human rights is essential. By repealing the charter of fundamental rights—not the convention, the charter—we are sending out an extremely negative message to the people of Northern Ireland. Can he offer reassurances on that point?

[The Solicitor General]

I certainly can. First, we are not repealing anything. Secondly, the dog that has not barked in this debate is the European convention on human rights, which is much supported by both sides of the House, very much part of our law and a fundamental part of the underpinning of many of the human rights—

[Joanna Cherry]

rose—

[The Solicitor General]

I know that the hon. and learned Lady treasures and rightly places great value on those human rights. I give way to her.

[Joanna Cherry]

Can the Solicitor General confirm once and for all that reports that the Prime Minister wants to run the next Tory party general election campaign on a pledge to repeal the Human Rights Act and withdraw from the convention are incorrect? [Interruption.] Conservative Members roll their eyes and make a noise. I am giving him the opportunity to confirm that that is incorrect.

[The Solicitor General]

May I just calm the hon. and learned Lady? [Interruption.] Well, she is making a point that is frankly not the case. We have committed to supporting our membership of the European convention throughout this Parliament, and that is a position I entirely support.

[Joanna Cherry]

What about the next Parliament?

--- Later in debate ---

[The Solicitor General]

The hon. and learned Lady seems to be very focused on future referendums and the desire to rerun arguments that were held some time ago. I want to do justice to her amendments as much as to anybody else’s, and I will say this about the amendments posited by her and the Labour party: they offer different visions of how challenge might be mounted by using the charter. Amendment 4, which stands in the name of the Leader of the Opposition, deals with a situation akin to that under the Human Rights Act, whereby a declaration of incompatibility can be given, but that does not guarantee full redress for individuals seeking it under the charter. I accept that the amendment in the name of the hon. and learned Lady goes further and would retain a power in effect to strike down legislation if it is incompatible with the charter. I simply say to both of them, with the greatest of respect, that their approaches work against the core aims of the Bill. We are leaving the EU, and there has to be certainty about the process; and certainty in the law lies at the heart of everything else we have to do. That is the simple reason why we cannot accept those amendments.

I was interested in the arguments of the hon. Member for Bristol East (Kerry McCarthy) about clause 4, when she moved her amendment 57 and spoke to her new clause 19. My argument about clause 4 is simply this: indeed, as the sweeper clause—the description she adopted—it has the important function of curing any loopholes that might exist in European law when we leave the EU and deals with the question of uncertainty that I know she is extremely concerned with. I will try to reassure her. She will remember that the explanatory notes contain a helpful and non-exhaustive list of the type of directly effective rights, such as equal pay—a very important right—that are designed to be covered by this important provision in clause 4. As I have said in evidence in another place, we are simply seeking to ensure the important principle of reciprocity in the enforcement of fundamental rights such as those of equality, which she referred to, and those pertaining to the environment, for which I know she also has a great passion.

In conjunction, I can deal with the hon. Member for Enfield, Southgate (Bambos Charalambous), who succinctly and clearly made his argument on new clause 16, which deals fairly and squarely with equalities. We have already made our commitment clear that all the protections in and under the Equality Acts of 2006 and 2010 and the equivalent Northern Ireland legislation will continue to apply once we have left the EU. In Committee, we tabled an amendment which would secure transparency in that regard by requiring ministerial statements to be made about any amendments made to the Equality Act through secondary legislative powers under the Bill.

What concerns me about new clause 16 is that it would go further by creating new free-standing rights, perhaps even more than have been proposed in amendments relating to the charter. That is not the purpose of the Bill. The Bill is about maintaining the same levels of protection on the day after exit as on the day before. It is not a vehicle for substantive legislative changes such as those that have been proposed, and for that reason we cannot accept the new clause.

I am grateful to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) for his qualified welcome for the Government amendments. The reason for a three-month time limit analogous to that which exists in domestic judicial review is the important policy consideration that there must be a degree of certainty when it comes to ongoing litigation and dispute about EU law as we enter the post-exit era. I think there must be some resolution of that by way of a limitation period. Retaining an open-ended right of action would create more uncertainty for businesses and individuals about rights and obligations.

After we cease to be a member of the European Union, it would not be right to allow “general principles” challenges to Acts of Parliament to continue, because that is not in line with the purposes of Brexit. To put it simply, outside the context of EU law, the ability of courts to disapply Acts of Parliament on “general principles” grounds is not consistent with the way in which our domestic legal system functions. That must be at the heart of our policy considerations.

[Mr Grieve]

My hon. and learned Friend’s argument would make more sense if the Government had not decided to retain the principle of the supremacy of EU law in the Bill. Once they have done that, removing the mechanism of a challenge on the basis of general principles creates something that I think is rather odd. I would not have pressed the issue if the Government had adopted an alternative approach, but that was their own decision. This has, I think, highlighted some of the oddities of the way in which the matter has been approached. It may well be that they can be sorted out in the other place, but I think my hon. and learned Friend must acknowledge that they are odd.

[The Solicitor General]

I hope that my right hon. and learned Friend is allowing me to intervene on his intervention. Let us not forget that we are dealing with the pre-exit situation. The EU acquis is being frozen, in the sense that its full effect in a pre-exit sense must be maintained so that we can maintain certainty. I agree that it is a strange and rather unusual concept, but I think it preserves that all-important certainty.

Time is short, and I want to ensure that I deal with further amendments.

[Sir William Cash]

Will my hon. and learned Friend give way?

[The Solicitor General]

I must press on, I am afraid.

The amendments tabled by my right hon. and learned Friend the Member for Beaconsfield relating to the way in which we designate EU legislation make important contributions to the debate, but they are laden with problems. The sheer volume of what we are dealing with—well over 15,000 pieces of legislation—leads me to draw back from trying to create a convenient categorisation of retained EU law. With the greatest respect, I think it far wiser for the Government to approach each item on a case-by-case basis, not making glib assumptions and trying to downgrade EU law, but getting each particular measure right.

Amendments tabled by the hon. and learned Member for Edinburgh South West and others deal with, again, the debate on clause 6 and the interpretation of retained EU law. I entirely understand why the amendments were tabled, because the debate is intense, but I would say to those Members, with respect, that I think less is more. The more we try to enshrine in law principles such as persuasive authority—which is in one of the amendments—the more I see the potential for judicial head-scratching and litigation of a type that I do not believe the judiciary would welcome. I have said it before and I say it again: I trust our judiciary to answer the question put before them rather than to survey like lions of the constitutional savannah and to run across the landscape. They answer the question that is put to them, and I trust them to do that and to use the discretion that quite naturally they should be given.

In relation to the new clause in the name of the hon. Member for Brighton, Pavilion (Caroline Lucas), it is clear that the Government regard animals as sentient and we of course support the sentiment behind the new clause, as we did on a previous occasion, but we could not support it then and the reasons for not supporting it have not changed. Article 13 places an obligation on the EU when developing certain policies, and on EU member states when developing and implementing those policies. That obligation, because animals are sentient beings, is to have full regard to their welfare requirements, but article 13 applies only to a limited number of EU policy areas, and frankly it also allows for practices that we would consider cruel.

[Caroline Lucas]

I would be interested to know what policy area the Solicitor General thinks the EU provision does not cover: what does he want to cover that the EU does not? Secondly, would it not be safer just to have this amendment in the Bill to make sure we have legal certainty, because he cannot guarantee that the Government Bill will get on to the statute book before we leave the EU?

[The Solicitor General]

May I reassure the hon. Lady by pointing out that there are many areas on which we have heard debates, such as on live importation? I want to make sure the new domestic law we introduce is comprehensive in a way that I know she would fully support. Cross-referencing to the obligations in article 13 —which apply only to EU policies, not to UK policies—would, if anything, create more confusion once we have left the EU.

Frankly, article 13 has not delivered and its effect on domestic law is minimal, and as my right hon. Friend the Environment Secretary has said, we can do better. We have made it clear that we intend to retain, and indeed enhance, our existing standards of animal welfare once we leave. This Bill will convert the existing body of EU animal welfare law into our law and will make sure the same protections are in place in the UK and that laws still function effectively after we leave.

The purpose of this Bill is not to improve EU laws; it is about providing a functioning statute book. That is why, as the hon. Lady has acknowledged, the Government have now published draft legislation—the Animal Welfare (Sentencing and Recognition of Sentience) Bill—which sets out why we can do it better. It is a significant improvement on article 13; it will impose a clear duty on the state to have regard for animal welfare when considering all policies, rather than just the six areas in article 13.

I also say to the hon. Lady that it is open to public consultation and we have to respect the views of thousands of members of the public who will be coming forward and making—[Interruption.] The hon. Lady believes in open and public consultation and democracy, and that is why we are doing what we are doing. [Interruption.] It ill behoves the hon. Lady to assume that my party somehow lies on a lower moral plain when it comes to issues of animal welfare. We share the passion and commitment to animal welfare that she professes and I know many other Members in this House do—I look to the hon. Member for Bristol East (Kerry McCarthy) as a shining example. We want to hear from the public and their view about it, and we want to get it right in domestic legislation, which is the right place for it.

There is much I could say about the wonderful, if small, British overseas territory of Anguilla. Having visited it myself in a ministerial capacity, I was very grateful to the hon. Member for Ilford South (Mike Gapes) for his description. We are very conscious not only of the importance of Anguilla, its people and its economy, but the need to make sure that the concerns of the Anguillan Government are considered and the rights people have in Anguilla, which are exactly the same as those of UK nationals, are preserved after we leave the EU. We will make sure that that situation will not change.

The debate on the charter has been an important one. It has been a further stage in the way in which we have looked carefully at the Bill. The Government remain open and we are listening to all views on how we can get this right. I am sure that, as the Bill makes its way into another place, the deliberations of this House will have done much to enhance the quality not only of the Bill but of our democracy itself.

[Kerry McCarthy]

I thank the Minister for praising me as a shining example on animal welfare, but that does not quite make up for my disappointment that he has failed to address the issues in my amendments. I therefore seek to press amendment 57 to a vote.