Retained EU Law (Revocation and Reform) Bill

Robert Buckland Excerpts

Consideration of Lords message
Wednesday 21st June 2023 Commons Chamber

[Alyn Smith (Stirling) (SNP)]

Here we are again—plus ça change, plus c’est la même chose. I always remember that nobody ever criticised a speech for being too short, and I think I can excel myself this afternoon.

Our position, like the Government’s, has not changed in relation to the Bill. We think the Bill is unnecessary. Retained EU law became law when we left the European Union. The special status that we have heard so much about does not, I believe, stand any sort of academic analysis. It is open to the Government to retain, repeal or change any measure on the statute book without this provision. We think this provision augments the powers of the Executive in relation to this body of law, not on the basis of what the law does, how effective it is or how up to date it is, but on the basis of where it came from. That is a poor premise.

I find myself in the strange position of backing the Lords amendments. The SNP does not send Members to the House of Lords because we have issues with the democratic legitimacy of the place, but I am glad of their work on this. Where I say this is a bad Bill, and where I fear it will be bad law, I would also put on record my appreciation of the very hard-working Clerks and others who have got it to where it is today. I disagree with the politics of this, not their work.

On amendments 15D and 42D, the environmental non-regression clause, that is taking Ministers at face value. If Ministers do not want to regress, then let us put that on the face of the Bill, which would reassure an awful lot of people.

Scrutiny measures are foreseen within the Bill. We acknowledge that, but we do not think they are enough. This is a new set of powers for the Government and I think it needs a new set of scrutiny powers for this place and for the House of Lords, to make sure that there are brakes on what they might do with those powers so given.

The legislative consent motions have been denied by the Holyrood Parliament and the Welsh Senedd. That should give any Unionist in this place cause for concern about the Bill, both in the way it is being taken forward and the attitude that it shows to the devolved settlement. So we are against the Bill and we are backing the Lords amendments to make the Bill a little less bad. I am weary of our entrenched position and a dialogue of the death, so I draw my remarks to a close.

[Sir Robert Buckland (South Swindon) (Con)]

In another attempt to recreate complete déjà vu, I follow the hon. Member for Stirling (Alyn Smith) again, as I did some weeks ago. I will not repeat the point I made to him about his remarks on devolution, in an otherwise beautifully constructed speech, with which I respectfully completely disagree.

We are left with two issues. The first issue can be dealt with fairly swiftly. I do not see the need to put on the face of primary legislation a non-regression clause. The Government have been crystal clear about their approach to environmental standards and I know from my own inbox experiences, and from those of many other right hon. and hon. Members, that the British public just will not have a regression from high environmental or food safety standards. They are the sort of standards where we have led global opinion about regulation. With respect to Lord Krebs, I do not see the need for that amendment.

However, I will press the Solicitor General, my hon. and learned Friend the Member for Mid Dorset and North Poole (Michael Tomlinson), on amendment 42D. While I accept that in its detail there might be some further work, I think 60 days is a long time. In effect, that would mean 60 working days, so if one started in late July, the matter may not be resolved until October or November. I can see that is an issue, but I pray in aid what the noble Lords said about the need to disaggregate this issue from the issue of Brexit. It does not matter about the source of the law or where it comes from; this is a question of the ability of this place—Parliament—to scrutinise the operations and decisions of the Executive.

I am always interested to listen to the careful words of my hon. Friend the Member for Stone (Sir William Cash). I thought that his exposition of Lord Hope’s position on parliamentary sovereignty was a fair one. He and I actually agree quite strongly about parliamentary sovereignty and the need to avoid the trend in the noughties—before the current Supreme Court—to downplay the role of parliamentary sovereignty to suggest that, somehow, we have moved on from the age of Dicey, and the role is no longer unqualified. I think he and I agree on that—we are both defenders of sovereignty—but to pray in aid an argument about ceding powers of the judiciary is rather odd bearing in mind the context of the amendment. The amendment is all about giving more power to this place and, indirectly, I accept, to the other place.

[Sir William Cash]

I made a very careful distinction. I appreciate the point that my right hon. and learned Friend is trying to make, and accept, of course, that Lord Hope of Craighead is a very distinguished judge and a member of the Supreme Court. I thought that it might just be relevant to draw attention to the fact that, in the context of parliamentary sovereignty, Lord Bingham used some quite trenchant words with regard to the judgments that he had observed both from Lady Hale and from Lord Hope. That was all.

[Sir Robert Buckland]

I entirely agree with my hon. Friend’s analysis. I think that we are on the same side on this. I have always been extremely vigilant in observing, scrutinising, criticising and making my own comments in lectures outside this place about the dangers of going down that road and of not understanding that, far from being mutually contradictory, the rule of law and parliamentary sovereignty are both sides of the same coin. If we do not have strong parliamentary sovereignty, the rule of law itself is undermined. The rule of law is a political concept rather than the law itself, and, I think, that that is sometimes misunderstood. It is the duty of Conservatives, from my hon. Friend right through to me, to remind this place and other places about the importance of these principles. We agree on that, but that is not the precise context of this amendment. The amendment is legitimately and properly seeking to make sure that this place has a role in the scrutiny of the revocation of legislation.

I do not accept the arguments that there is an attempt, certainly by the mover of this amendment or of some of the others who spoke in the debate, to try to frustrate the purpose of this important Bill, which I support. We are at a stage now where, with the greatest respect to my hon. Friend, we should not concern ourselves with the Salisbury Acts, because the Lords have given us a Second and Third Reading, and that convention relates to the commanding heights of a Bill, but we are now down to the dirty detail, and that is what we are talking about. Therefore, it is important that we lean into this process in as sensible a way as possible to see whether there is a potential compromise—either by a reduction in the number of days, which I would agree with, or, indeed, by looking again at the precise role of the other place with regard to the approval or otherwise of any regulation. That is what I would be seeking to do if I were in my hon. Friend’s place, because I detect that there is, if not a head of steam, a determination by the noble Lords to press the Government on this particular issue.

As I have said before, if we start to take the “B” word out of this issue and look at it on the basis of parliamentary scrutiny, then perhaps we can take the heat out of the debate and have something far more considered and reasonable.

[Sir William Cash]

My right hon. and learned Friend may be just ducking an issue, which is that, actually, it is not about the “B” word or Brexit as such; it is about parliamentary democracy and sovereignty, the general election and the referendum as well. We are talking about a massive amount of law. I am glad to note that the Government accepted my proposal that we should examine the list and have a proper list. However, having said that, I am afraid that I do not agree with my right hon. and learned Friend. He is doing his best to find a compromise, but I do not think that a compromise is legitimate in these circumstances.

[Sir Robert Buckland]

I listened with care to my hon. Friend. Although he and I are on other sides of the argument, we have always had, I think, a very strong mutual regard for each other’s position and the way in which we put our arguments. I am afraid that I do not agree. It is absolutely right to pray in aid the democratic decisions that have been made by the British people and this House, but we are also here, I think, as guardians of this place. It is important to note that, when we created retained EU law, which he and I were heavily involved with, we said at the time, either explicitly or implicitly, that we would, in good order, look carefully at the body of retained EU law, and that we would get rid of what we do not need—I am absolutely up for that, as it would be good, tidy law-making and doing service to the statute book—but at the same time we would retain what we regard as important safeguards or regulations that underpin particular activities. That is good for the rule of law and good for certainty, and we should remember that. I do not think that the bulldozer approach is the right one; the scalpel surely should be applied to these regulations, so that we get it right.

Therefore, in closing, I ask my hon. and learned Friend the Solicitor General to consider carefully whether, through further amendment and change, we can strike the right balance between the need to fulfil the objectives of this important Bill and to make sure that this place is not lost in the rush to revoke or amend regulations. There may be a time, even with sunsetting, that we will no longer be the party of government and we need to remember that we should be here to defend the position of this House irrespective of who might sit on the Treasury Bench. On that note, I urge my hon. and learned Friend to think again about amendment 42D, but, otherwise, I am in full support of his remarks.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

It is a pleasure to follow the right hon. and learned Member for South Swindon (Sir Robert Buckland). I have much sympathy for him and his attempts to speak to deaf ears.

We are back dealing with the renegade masters of this Government and their ill behaviour—the arrogance they have yet again expressed towards the concept of parliamentary scrutiny. People watching these proceedings —few, I am sure, on a lovely Wednesday sunny afternoon—will understand what is being said: “Our way, or no way at all.” The amendments are a reasonable way of trying to address the loss of parliamentary scrutiny—the ministerial power grab—that this Bill represents.

It is seven years since we were told that Brexit was all about taking back control; seven years that we have been waiting for any kind of benefit at all; and seven years in which our constituents have certainly seen the damage that has been done. The only benefit that the Bill will bring is to Downing Street. It takes back power not to the people, but to the Prime Minister. That is why thousands of people have been writing to their MPs, begging and pleading them to look at the damage that the Bill would do to the powers in this place and to their voice in that process. Following the logic of the hon. Member for Stone (Sir William Cash), we could call anything Brexit. He wants to say, “Well, we had a referendum, so this piece of legislation, as it is currently written, must go through this place unamended.” Well, I would quite like all the money that we were promised for the NHS also to go through this place, but we cannot always get what we want. My constituents are concerned about democracy; that is why people writing to us; that is why there is a concern about the process that the Bill would set up. The powers that it gives, that continue way beyond any sunset date at the end of this year, are over consumer rights, environmental standards and employment rights.

Let us be honest: in a week when the reputation of Parliament could not get much lower, any attempt to restore the ability of a Member of Parliament to represent their constituents, propose amendments or participate in scrutiny—not just shout at Ministers about something that they will pass without challenge—cannot be a bad thing. I welcome their lordships having stood up for the role we could play. We have seen a week in which some MPs would rather have gone to watch the cricket than come to Westminster to do their job, but some of us still think that there is a job worth turning up for and that we should do that job.

[Sir Robert Buckland]

rose—

[Stella Creasy]

I know that the right hon. and learned Gentleman agrees. I have never seen him at the cricket. I will gladly give way.

[Sir Robert Buckland]

Some of us, including my hon. Friend the Member for Stone (Sir William Cash), love cricket, but we can do both, and that is why we are here.

[Stella Creasy]

In fairness to the hon. Member for Stone, I recognise that he was here on Monday and is here today. On the powers of this Bill, he is like the Earl of Lucan—leading his cavalry into the charge of the Light Brigade—because he has already seen the arrogance of Ministers in responding to his concerns. I will never understand why he is giving away the power that he has as a Back-Bench MP to challenge for things—things that I might disagree with, but that, in a democracy, I would stand up for his right to argue for—but he is doing that today and he has done so consistently because he thinks this Bill is Brexit. It is not.

This Bill is a complete break-up of our parliamentary system, because it gives Ministers powers over 4,000 areas of legislation, using statutory instrument Committees with hand-picked groups of MPs to wave through any changes that Ministers want to make. And what has the hon. Gentleman got out of the process? He has got a list of the things that are not going to be deleted that he would like to see deleted. What a glorious victory that is. Little wonder the Earl of Cardigan would be looking at him—

Retained EU Law (Revocation and Reform) Bill

Robert Buckland Excerpts

Consideration of Lords message
Monday 12th June 2023 Commons Chamber

[Mr Deputy Speaker (Mr Nigel Evans)]

Alyn, thank you for your co-operation—I appreciate it. Whoever is on their feet at 4.37 pm I will ask to resume their seat, because I am going to give the Minister two minutes to respond to contributions.

[Sir Robert Buckland (South Swindon) (Con)]

It is a pleasure to follow the hon. Member for Stirling (Alyn Smith). His remarks are always couched in a pithy and clear way, but I disagree fundamentally with his point about a legislative consent motion. It is entirely within the rights of the devolved Administrations and their Parliaments to consent or not, but the very fact that a consent has not been granted should not be regarded as either legally or politically fatal to a Bill that clearly deals with the competences that lie here at Westminster.

I am afraid that the characterisation of the hon. Gentleman and the nationalists—the SNP and nationalist parties elsewhere—that this is a power grab away from Cardiff and Edinburgh in favour of Westminster is a complete misreading of the situation. These powers lay in Brussels, at the European level, and they are coming back to the next level of Government. That is not in any way some sort of reverse grab away from the devolved Administrations. It cannot be, and it does not follow. I speak not only using my experience as a lawyer, but as a former territorial Secretary of State. That characterisation has to be resisted at every turn.

I will now deal with the three particular issues that we have before us today.

[Sir Oliver Heald (North East Hertfordshire) (Con)]

Before my right hon. and learned Friend departs from his remarks in response to the hon. Member for Stirling (Alyn Smith) about Scotland, does he agree that, if laws are passed in Europe, they are a compromise representing the interests of 27 different countries? There is an opportunity for some smart deregulation, and that would be as beneficial to Scotland as to any other part of the UK.

[Sir Robert Buckland]

I entirely agree with my right hon. and learned Friend. At the risk of invoking the ire of my hon. Friend the Member for Stone (Sir William Cash), the new Companion of Honour, it is right to say that, although consensus was indeed the means by which regulations were agreed by the Council of Ministers, it usually involved the UK and its assent to that consensus. I know that is not quite the narrative that he agrees with, but we risk fighting the old battles that he and I were on either side of.

[Sir William Cash]

Not today!

[Sir Robert Buckland]

No, we are not going to do that today, but I will end on this basis: my hon. Friend knows I am right.

In my next breath, I want to violently agree with my hon. Friend about his work on the dashboard and the amendment that we now have to make a particular tweak to Lords amendment 16. I entirely support the new clause under Lords amendment 16. The dashboard has been a source of much concern in recent months, which was then reflected by the Secretary of State’s wise decision to change course. That dashboard has to be authoritative, so I am glad to see it in law, but it now needs to work. We need to make sure that it is populated, that the National Archives is very much part of it, that we are not given any more surprises and—my hon. and learned Friend the Minister will get this—that we do not end up with repeal by accident, which is bad for the rule of law, bad for certainty and bad for investment. We all agree on that.

To deal in short order with Lords amendment 15, with the best will in the world, on one level, it seems to be a sincere attempt to reflect the legitimate aspirations of the British people about food and environmental standards. Frankly, they are the aspirations of the British Government, too. It is not right to say that at any time, any Minister on the Treasury Bench under this Government has said that they want to use the Bill as an attempt to railroad the undermining of strict environmental protection and food standards. One therefore has to ask: what is the purpose of this particular amendment? Some of its purpose I am afraid is nakedly political. It seeks to make a political point that imputes to this Government a motive that they just do not have. In addition, it is beset by problems. The particular way in which it is structured, and the requirements for consultation in particular, seem to me to be a litigator’s paradise.

[Jim Shannon (Strangford) (DUP)]

On the point about the environment and how important it is, the right hon. and learned Gentleman will have got the same circular as the rest of us. It states:

“Many of the laws that could be weakened using the powers contained in the Bill as currently drafted are vital to nature’s recovery. They help improve the quality of our rivers and coasts, keep dangerous chemical use at bay, and protect some of our rarest and most important habitats and species.”

Does he believe that the Minister is going to deliver on that? I think he will, but does the right hon. and learned Gentleman think that as well?

[Sir Robert Buckland]

Well, answer that! I entirely agree with the hon. Member. There is no evidence at all that this Government seek to take a different course from their stated aim of protecting world-leading environmental protection and food standards. Therefore, we have to ask what the purpose of Lords amendment 15 is. It seems to me that many parts to the amendment would give rise to a significant amount of litigation. I do not think that is at all what the drafters of the amendment want, and it certainly does not help with regard to clarity of the law.

That brings me to new Lords amendment 16C, which, with absolute candour, seems to me to be a step back by their lordships from the previous iteration of that amendment. It is now narrowed down just to clause 15. I understand the concerns that the noble Lords have about the use of the power in clause 15 because it is, on the face of it, a dramatic power that the Government would have. On one level, the power of revocation seems to me to be welcome. I note within it particular caveats about the creation of new functions, particularly the creation of criminal offences. There has been a long-established convention about the use of such powers, and we all have a concern about the creation of criminal offences that are more serious than ones they seek to replace or, indeed, are serious new offences. I note the taxation and public authority restrictions as well, so a lot of the normal restrictions are built into the provision, which are welcome.

What the noble Lords are asking for is more reassurance about the process. I do not criticise them at all for that, because it does not seem unreasonable to me that there should be at least some process, particularly when new regulations are being created. I would gently press the Minister to consider that discrete point. It may well be, in response to anything that I or other hon. Members say, that he has an opportunity to enlarge on that. It does seem to me not unreasonable to ask for that further check and balance. I do not think it is the sort of unwelcome additional bureaucracy that perhaps he and others are concerned about. Fundamentally, we have a duty as parliamentarians to protect the role of this place in particular in the scrutiny of the passage of important new regulations, whatever form they may take.

If we take Brexit out of this and take the temperature right down, I do not think that is an unreasonable point at all. I do not accept the characterisation that a number of noble Lords are embarking upon some mission here to frustrate the approach that the Government are taking in the Bill. It is a Bill I have supported, and a Bill I have said is absolutely necessary as a special mechanism to deal with retained EU law. We all agreed that this was a particular area of law that needed to be held in suspense and then looked at carefully in its individual parts. Lords amendment 16C does seem to me to reflect that and respect that. The other two matters I have dealt with, and I am more than satisfied with the Minister’s response to that, but I do press him on that particular aspect and that particular amendment. I will not trouble the House any further.

[Stella Creasy]

Getting any detail out of this Government about what they intend to use the powers in the Bill for has been like pulling hens’ teeth. Even now, with the Bill before us today, about to be passed imminently, we still do not know the full effect it will have. I will make a few brief comments.

The right hon. and learned Member for South Swindon (Sir Robert Buckland) talked about the Government’s recognition that we need to know not just the regulations but the direct effect cases that are being deleted. In the other place last week, the Government said they

“will add Section 4 rights to the dashboard as identified at least as frequently as every six months, as per the reporting requirement clause that is already in the Bill.”—[Official Report, House of Lords, 6 June 2023; Vol. 830, c. 1263.]

Nothing has changed since last week, so we still do not know what legal judgments the Government intend to delete—legal judgments that cover multiple rights including employment rights and environmental standards.

Retained EU Law (Revocation and Reform) Bill

Robert Buckland Excerpts

Consideration of Lords amendments
Wednesday 24th May 2023 Commons Chamber

[The Solicitor General]

I will not give way at the moment. I am going to make some progress, because I am conscious that a number of people want to speak in the debate. As I was saying, all retained EU law in the schedule will be revoked on 31 December 2023.

There is a clear additional advantage to a schedule, and this was a point I made earlier to the hon. Member for Walthamstow (Stella Creasy): rather than using precious parliamentary time passing SIs to save laws that no one would ever let sunset, it is right to be clear in a schedule what retained EU law will revoked, while letting the rest be reformed. Instead of our focusing on passing significant numbers of SIs just to preserve the status quo, the schedule will allow the Government to get on with reforming and revoking regulations that are not fit for purpose for the UK.

[Sir Robert Buckland (South Swindon) (Con)]

My hon. and learned Friend is bringing me a lot of déjà vu, as one of his predecessors who dealt with EU withdrawal and retained EU law. There will be more on that later, but I want to ask him about the point he has just made. Was there not a danger that, in confusing haste with speed, we were going to end up with a cut-and-paste operation, where civil servants were just going to replicate existing SIs and leave them on the statute book to be reformed at some undefined date in the future? Is his approach guaranteed to avoid that unhappy set of circumstances from coming about?

[The Solicitor General]

I am grateful to my predecessor, who has indeed spent many hours at this Dispatch Box debating legislation such as this over the past years. He is absolutely right in what he says; this approach allows the Government to get on with reforming and revoking, rather than having the cut-and-paste to which he referred.

We want to expand both the scrutiny and the breadth of experience that we are drawing on when it comes to revocation and reform. My hon. Friend the Member for Stone (Sir William Cash) anticipated this point, and I thank him for the work done by him and his Committee, a number of whose members are in the Chamber today. Indeed, I used to be a member of that Committee and the Government look forward to engaging with it. I am pleased to give him a commitment that we will present a report to the European Scrutiny Committee on a six-monthly basis on the progress and plans the Government are making on the repeal of retained EU law. Any retained EU law not included in the schedule will be stripped of EU interpretative effects after 31 December 2023. I repeat that it is important to expand both the scrutiny and breadth of experience, as the Secretary of State for Business and Trade has said from this Dispatch Box and elsewhere. This is vital, and it means that we will still be removing the effects of general principles of EU law as an aid to interpretation, ceasing the application of supremacy and repealing directly effective EU rights so that they no longer have any effect in relation to those provisions.

--- Later in debate ---

[Alyn Smith]

The hon. Gentleman makes an interesting point. I have to say that I do not agree with him. The intention of the amendment is clearly about protecting the devolved settlement. It does do that, and that is certainly the SNP’s interpretation of it. We do not have Members in the Lords, but if there was scope for redrafting that provision, we would be open to it. Our position, however, is that it defends the devolved settlement. I do not think there is any serious risk to any other provision.

[Sir Robert Buckland]

I am delighted to engage with the hon. Gentleman, and he is engaging closely on an important detail. The governing provision is section 4 of the European Union (Withdrawal) Act 2018, which in effect deals with the generic issues under section 2(1) of the European Communities Act 1972. There is no specific reference in there to devolved matters. Does that not reinforce the point being made by my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) about the danger of this Lords amendment 6 not being as precise or as clear as it ought to be?

[Alyn Smith]

In a spirit of intellectual honesty, I will take that point on board. I hope their lordships will, too, because I suspect that this is not the end of the discussion. For today, we will support the amendment to make it clear that we want to defend the devolved settlement from a power grab. I suspect we will come back to this matter, and I am genuinely grateful for those constructive points.

Lords amendment 15, on non-regression from existing environmental standards, takes the statements of UK Government Ministers and various members of the leave campaign at face value that we will not revoke or pull back from our very high environmental standards, some of which derive from EU law and some of which do not. If we are not going to dilute them and there is no intention from those on the Treasury Bench to do so, let us bang that into the Bill and make it explicit.

Lords amendment 42 is an attempt to improve scrutiny, and I come back to the thoughtful points that were made about the possibility that it might introduce friction into the Bill. I would counter that by saying that the Bill goes around the normal legislative scrutiny by which we would deal with these things. I accept that the amendment is an innovative idea, but it is merited, and those on the Treasury Bench should take it as showing the scale of disquiet about the potential for a power grab with the Bill. We will support that amendment.

I will close; I was hoping to be briefer than I have been. We do not like this Bill. We do not like what it is trying to do or how it is trying to do it. From our perspective, it is not in Scotland’s interests, and it is not in Scotland’s name either, with Holyrood having refused consent. I urge colleagues to match their talk of democratic deficits through their actions. If by their actions they prove my party right today, Scotland has a different path to choose if we are serious about democracy in these islands. My party has a clear vision of Scotland’s best future; I do not see a clear vision of any future in this legislation. Scotland has a better choice to make.

Retained EU Law (Revocation and Reform) Bill

Robert Buckland Excerpts

Wednesday 24th May 2023 Commons Chamber

[Andrew Jones]

I beg the hon. Gentleman’s pardon.

As our Committee is gearing up for the consideration, may I point out that the Labour party has not taken up its places? We regularly meet when there is no Labour representation. We publish our attendance records, and I have just been looking at one of them. I see “zero attendance, zero attendance, zero attendance”. I fully recognise that it is not easy for colleagues to get to every event, and there are many reasons why Labour members of the Committee cannot always join us. I am not criticising those who have been nominated, because they have other things to do, and indeed we have gone out of our way to highlight that in the attendance records. We have gone as far as to say that

“committee members have other duties in the House…They may have commitments”

and so on. However, if colleagues cannot join us for a prolonged period, it may be wiser for the Labour party to nominate others who can attend, and could have attended over the several years for which we have been sitting. I do not think it reasonable for Labour Members to complain about a lack of scrutiny and then not take up the scrutiny places that are theirs.

We expect the Committee to be busy. We have been given an indication that the instruments will start to flow through to us very shortly after the Bill has completed its democratic journey here, and I look forward to continuing the work that we have done in ensuring that the correct scrutiny is provided.

[Sir Robert Buckland]

It is a pleasure to follow my hon. Friend the Member for Harrogate and Knaresborough (Andrew Jones). He speaks with authority about the important detail and minutiae of procedure, which forms much of the subject matter in the Lords amendments.

I am also delighted to welcome the Solicitor General, my hon. and learned Friend the Member for Mid Dorset and North Poole (Michael Tomlinson), to his place. He follows in a very honourable tradition. We have mentioned the European Union (Withdrawal) Act 2018, which is, of course, very germane to this debate, but let us not forget the European Communities Act 1972 itself, which another Solicitor General, the late Lord Howe, took through this place when he was—in his own words, to me—in the happiest job of his political career. So I say to my hon. and learned Friend, “Enjoy it while it lasts.” I hope that it lasts a long time, because I think he brings a real quality to the job. He understands the role of a Law Officer, and I am delighted that the Government have chosen to deploy him at this stage of the debate, because although this might be seen as a rather arid area of the law, passions are running high.

I am sorry that I was not here to hear the speech of my right hon. Friend the Member for North East Somerset (Mr Rees-Mogg), but I was extremely grateful to him when, as Brexit Minister, he was good enough to consult me about his ambition for this Bill when I was on one of my furloughs from Government last year. It was an ambition that I understood and, frankly, shared. There is a strong, respectable argument to be made for those with the political will to show a sense of direction and give a steer to civil servants on what we want to achieve. There is no doubt that the aims of the Bill, which I continue to support, are entirely laudable. My right hon. Friend needs no criticism at all for seeking to continue to apply the collective feet of the machinery of government to the fire of regulatory reform.

That is what we are talking about here. Let us strip away the B-word, the Brexit word. Everyone knows what my position was on that: I was a remainer. I campaigned for it, fought for it and believed in it, but I accepted the vote of the British people. As my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) said in his excellent speech, this really is another chapter in the delivery of the verdict by the British people that we were enjoined to carry out. That is why I think the mechanism is necessary.

I note the arguments about the otiose nature of this legislation due to the fact that various regulations can be amended or removed through the normal proceedings of the House, but it was right to come back to the issue of retained EU law after a moment of reflection. That was precisely the Government’s intention in 2017. I remember when I was in my hon. and learned Friend the Solicitor General’s place making the argument that this was a freezing of the law and a sweeping-up clause designed to put this category of law into an understandable compartment, so that we could return to the issues once we had got through not just Brexit but the transition period and once we knew the shape of the future relationship. We are now in that position, and my right hon. Friend the Member for North East Somerset was therefore timely with his intentions and his wish to get things moving.

However, as with all honourable and great plans, events sometimes intervene. There were plenty of examples of officials across the civil service doing their best to identify which regulations and statutory instruments needed to go, but the National Archives kept cropping up again and again. There was also a question mark about the efficacy of the Government dashboard and whether it was too unreflective of all the regulations that existed pursuant to retained EU law. I have to say that that caused me to lose confidence that we could, in due time, identify all the regulations that needed to be looked at, swept up or removed. My fear was that we would have ended up in the position of repeal by accident, whereby perfectly decent regulations that still have an application today and that underpin business transactions or other relationships between the individual and the state would have been repealed. That would not have been good for the law or for certainty—the rule of law depends on certainty—and that worried me.

It therefore came as no surprise when the Secretary of State for Business and Trade, my right hon. Friend the Member for Saffron Walden (Kemi Badenoch), came to the conclusion that she did. Hence the replacement of that ambitious sunset at the end of this year with what I will call the 600. This is resonant of Tennyson in many ways, and I hope that the end for this 600 will be as clear as the end was for the noble Light Brigade. As I think all Conservative Members would agree, we want to see that as the beginning, not the end, of regulatory reform.

[Bim Afolami]

Seeing as my right hon. and learned Friend is half a league onward, does he agree that this is a very good example of grown-up policymaking?

[Sir Robert Buckland]

In a word, yes. I am a voluntary member of the Regulatory Reform Group, which my hon. Friend so ably chairs. As we look at the context of these amendments, it is important to strip away the B-word and remind ourselves of the purpose of regulation. Hastily proposed regulation, without a clear policy objective and without sufficient consideration for the costs involved, is without doubt a bad thing, but hastily repealed regulation, without proper evidence-based decisions, can also be a very bad thing.

When we talk about the burden of regulation, looking at the mere number is, by no means, the whole picture. Indeed, it can be very misleading, because it is the type of regulation that is most important. That is why the way in which we undertake cost-benefit analysis of regulatory burdens is so important and, in some ways, deficient—it is not dynamic enough, and it does not deal with the developing or cumulative effects of regulation on competition. We might end up in a situation in which the opposite of a policy objective is obtained. We have seen examples where a monopoly might be entrenched or competition undermined, which is neither good lawmaking nor good regulation.

The Government have tried a number of initiatives: one in, one out; one in, two out; and business impact targets in the mid-2010s. The 2015 Parliament saw a downturn in the cost of regulation but, of themselves, such initiatives do not achieve their purpose, for which, to invoke my right hon. Friend the Member for North East Somerset again, political will is needed.

Looking at the Government’s business impact targets for 2020-21, the biggest saving in direct costs to customers and businesses was the £3.6 billion reduction achieved by the Ministry of Justice, which I then led, through the whiplash civil law reforms that resulted in savings for insurers and consumers. It is a successful example of how a well-targeted regulatory and legislative change can make a difference. We can do it, and we must do it. I think all Conservative Members would vigorously agree with that approach.

I would say this Bill has been improved. I take no issue with Government amendment (a) to Lords amendment 16. My hon. Friend the Member for Stone (Sir William Cash) very much supports that Government amendment, which seems eminently sensible.

I also adopt the observations of my right hon. and learned Friend the Member for Kenilworth and Southam on the detail of Lords amendments 6 and 42. I am all for proper scrutiny, and I am all for this place and, indeed, the other place, where appropriate, being able to have their say on the passage or removal of delegated legislation, which we all know that we do not do as well as we ought to.

I yield to no one in my admiration for the noble Lord Hope of Craighead, who works extremely hard on these issues. I do not think the amendments, as currently structured, are there. That is why, like my right hon. and learned Friend the Member for Kenilworth and Southam, I draw back from supporting them, although I would press the Solicitor General and his colleagues in the other place if this were to continue, which it might—we can never say never to these things—to look again at the issue.

There may be another, more elegant solution. Dare I say it, there may be potential to amend the Standing Orders of this place and the other place to deal with some of these points. The Standing Orders of the House of Commons are the closest thing we have to a written constitution and, in my mind, they are the most important document we have as a democratic House, but we can amend them, and we do amend them. There were times during the Brexit years when we did just that. In fact, we legislated in the European Union (Withdrawal) Act 2018 to create a sifting Committee, but that related to deficiencies at the top end of the process of Brexit, of which this is yet another chapter. Although we have some precedents, I am not sure that we are quite there with the form of these amendments.

--- Later in debate ---

[Danny Kruger]

I am grateful to my hon. Friend for that intervention; I hope we can inspire the countries of Europe, as we have so often in our history.

We have changed from a default assumption of removal of EU laws to a default assumption of retention. I understand the rationale for that change, even if I regret it. I also regret, but do not understand, why the decision to change the basis of the law was made when the Bill had passed its stages in this House and was in the House of Lords. It passed the Commons with a big majority and the whole Conservative party behind it; I think it was the SNP spokesperson who said it was rather like a handbrake turn in the House of Lords. I agree with that and I regret it.

Nevertheless, since then the Government have engaged constructively with Members. I pay tribute to my hon. Friend the Member for Stone, who is not in his place. I think every Bill needs an hon. Member for Stone stage, and if that was not done through the European Scrutiny Committee, it was done behind the scenes and it was very effective—[Interruption.] I see my right hon. and learned Friend the Member for South Swindon agreeing with me about the value of that stage of legislation.

I respect the Government’s intention and I accept their assurances that they intend to revoke at scale, because we need to recognise that the new schedule as it stands is very weak. My hon. Friend the Member for Stone said that only five of the measures in the schedule reflect significant laws. He said he was watching Eurovision while doing that work, so it must have been a very painful exercise—gloriously awful. Britain did very badly in Eurovision, and I am afraid Britain has not done brilliantly in this exercise either. It reflects poorly on Whitehall that we have only managed to identify those five substantial measures for revocation.

There is so much that can be done, whether people are free traders, like my right hon. Friend the Member for North East Somerset—who is back in his place—or protectionists like some of us.

[Sir Robert Buckland]

My hon. Friend says he is a protectionist, and I think that might need a bit of amplification. I do not think he means it in the traditional sense of the word, but I am genuinely intrigued.

[Mr Rees-Mogg]

Yes, he does!

Section 1 of the European Union (Withdrawal) Act 2019

Robert Buckland Excerpts

Tuesday 9th April 2019 Commons Chamber

[The Solicitor General (Robert Buckland)]

I beg to move,

That this House agrees for the purposes of section 1 of the European Union (Withdrawal) Act 2019 to the Prime Minister seeking an extension of the period specified in Article 50(3) of the Treaty on European Union to a period ending on 30 June 2019.

I will endeavour to be brief in my remarks. I will, of course, take interventions, but please allow me to make three points by way of introduction. First, the Government did not want to be in this position. I do not say that in the spirit of seeking to attribute blame to people, but in a moment of solemn reflection it is important that we acknowledge where we find ourselves.

It is of great disappointment to me and many others that this House has not felt able to approve the withdrawal agreement. The Prime Minister said last week that any plan for the future must include the withdrawal agreement. It is what we negotiated with the EU, and it remains the Government’s position that leaving with a deal is the best way for this country to leave the EU. Although I understand that certain right hon. and hon. Members have not found themselves in a position to support the withdrawal agreement, if we are to leave the EU in a smooth and orderly manner, we must find a way to find a plan for the way forward that includes it. Furthermore, the Government have already been clear that we are seeking an extension. As such, we continue to be of the view that the Bill passed last night was, with respect to its movers, unnecessary.

Secondly, it is clear that the House is not willing to leave without a deal. Thirdly, nobody who respects the outcome of the referendum could wish the UK to participate in the European Parliament elections, nearly three years after our country voted to leave the institutions of the European Union. However, if the UK remains a member state on 23 May, that is what it will be legally required to do. That is because the EU treaties provide that European Union citizens have the right to be represented in the European Parliament, and that the European Parliament needs to be properly constituted, with duly elected MEPs from all member states, for it to perform its functions.

[Sir Patrick McLoughlin (Derbyshire Dales) (Con)]

When my hon. and learned Friend says that we need to have left by 23 May, that is the date the election actually takes place. Will he inform the House of the latest date possible for the returning officer to publish the notice of poll and start the process of those elections?

--- Later in debate ---

[The Solicitor General]

In the letter that was sent to colleagues in the names of my right hon. Friend the Chancellor of the Duchy of Lancaster and my right hon. and learned Friend the Attorney General, I think reference was made to the necessity of allowing a suitable time between the bringing into force of the order that allows the elections to proceed and the elections themselves. My recollection is that that is a 25-day period. However, I will say also say, with regard to the process, that, of course, the new European Parliament does not meet until early July, and therefore it is important for us to distinguish between the need to hold elections and the requirement for British MEPs to actually sit in the European Parliament, if we are indeed to leave the European Union before early July.

[Several hon. Members rose—]

[The Solicitor General]

I give way first to the hon. Member for Rhondda (Chris Bryant).

[Chris Bryant (Rhondda) (Lab)]

I think the Solicitor General said earlier that what we have to do is find a way to find a plan to find a way forward. That sounds just a little bit nebulous, if he does not mind me saying so; it seems quite unlikely that that is going to be very concrete by 30 June. So if the European Council says, “Actually, we think you need to have an extension to the end of the year,” will the Government be open to that?

[The Solicitor General]

As the hon. Gentleman knows, negotiations will carry on in the Council tomorrow, and I think it would be idle speculation for me to try and anticipate what might be agreed. Some people take offence at the word nebulous; I do not. [Interruption.] I really do not. What I have tried to do, at all stages of this process, is to find a way forward and to seek a solution. It is in all our hands, and I say that in a spirit of friendship and co-operation to all hon. Members.

[Robert Neill (Bromley and Chislehurst) (Con)]

It seems to me that the Solicitor General is simply giving the House a reality check as to the position that we have been put into by Members who voted in various ways. But is not the situation in law that, although it might be necessary to participate in elections—which neither he nor I nor, I think, most of us want—as a matter of law, the outgoing European Parliament exists until the moment that the new Parliament is created, and therefore there are certain things that could take place, such as ratification of any agreement, until the point that the new Parliament meets; also, the argument that British presence might impugn the new Parliament would not exist if we have left by that time?

[The Solicitor General]

I am grateful to my hon. Friend. I think he is absolutely right about the way in which the European Parliament is constituted. It is due, I think, to rise on 18 April, but it does not cease to exist—it does not dissolve in the way that we do. That is important in terms of ratification, because section 13 of the withdrawal Act that we passed obviously includes that requirement as well.

[Mr Iain Duncan Smith (Chingford and Woodford Green) (Con)]

I just want to clear up something that I heard my hon. and learned Friend say. I think I heard him say at the Dispatch Box that it was wholly feasible that the Government may actually end up fighting the European elections, then only after that not allow its MEPs to take their seats—say they had been given an extension, but somehow we had managed to ratify the deal. Is that correct? Is it Government policy that we would go as far as to fight an election but not take our seats at the end of it?

[The Solicitor General]

My right hon. Friend is right to ask about that detail. I think that we are obliged, as a matter of law, to prepare for European elections, but if we have exited the European Union by the end of June, we are no longer a member but a third country. Therefore, the requirement to take our seats in the European Parliament would have ended.

[Hilary Benn (Leeds Central) (Lab)]

Further to the point made by the right hon. Member for Derbyshire Dales (Sir Patrick McLoughlin), will the Solicitor General give the House an assurance that, bearing in mind that postal votes will be cast before polling day, no one who casts a vote will find that the election in which they have cast that vote is cancelled after they have marked their cross on the piece of paper?

[The Solicitor General]

The ingenuity of the right hon. Gentleman knows no bounds. He is right to ask detailed questions such as that, but we have a solution to all these vexed questions: to agree a deal so that we can get on with leaving.

[Mr Dominic Grieve (Beaconsfield) (Con)]

That goes to the very heart of the issue. I have no objection to supporting this afternoon’s Government motion for extension, but I am mindful that we cannot go on lurching from one cliff-edge crisis to another. Unless the Government are able to craft a deal that commands a majority of this House, we must bear it in mind that 22 May or 30 June are not very far away. That concerns me. I would much prefer an opportunity, if necessary, for a longer and fungible extension, which enables us to make some decisions without the pressure we are under. Finally, with respect to the Bill passed through this House yesterday, I make the point that, like the nuclear deterrent, it works because we do not have to use it.

[The Solicitor General]

My right hon. and learned Friend tempts me on to a path of anticipating what might or might not be the outcome of the summit. I hear his point about the need to avoid regular cliff edges. He will forgive me if I remind him politely but firmly that there is an option for us all to take, which is to agree a way forward and an orderly exit.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

Further to the point made by the right hon. and learned Member for Beaconsfield (Mr Grieve) and by my hon. Friend the Member for Rhondda (Chris Bryant), I appreciate that the Solicitor General will not get into what might or might not be discussed at the European Council, and I appreciate his sincerity about wanting to get a deal agreed as soon as possible, but the reality is that many of us will support the motion conditional on our expectation that the Prime Minister will listen seriously and consider any longer options suggested, such as flextension, fungible extension or whatever we want to call them. I ask for his assurance that the Prime Minister will listen carefully to any offers put forward by other European leaders.

--- Later in debate ---

[The Solicitor General]

I think it is axiomatic that the Prime Minister will indeed listen carefully to any constructive suggestions made by the Council and the Commission on such matters. That is what she has always done—she has borne the brunt of some criticism for doing so, but her painstaking approach is the right way to go.

[Jonathan Edwards (Carmarthen East and Dinefwr) (PC)]

Is there little point to the British Government setting their red lines for the extension of the extension, because the decision on its length and the conditions attached will be made tomorrow by the European Council, with the British state outside the room?

[The Solicitor General]

The hon. Gentleman is right to characterise the decision of the 27, but before that there will have been active and proper negotiation and discussion between the United Kingdom and the Council. The reality is that we can end all of this here, in this House, by coming to a sensible agreement and making those compromises that many of us have had to do, me very much included.

[Sir Hugo Swire (East Devon) (Con)]

In the event of a whole swathe of MEPs being elected but not taking their seats, will they be entitled to compensation? Will the Solicitor General assure us that that compensation will be paid for not by our constituents but by the EU?

[The Solicitor General]

My right hon. Friend makes an intriguing point. I will not get into any discussions about the question of liability. Everyone who might put themselves up as a candidate for that election would know the likely outcome.

[Mr Ben Bradshaw (Exeter) (Lab)]

The Solicitor General talks about compromise, but he overlooks the fact that certainly most of us on the Opposition Benches voted for every single one of the four options before us last week; the problem was that most Conservative MPs and the Government did not vote for any of them.

[The Solicitor General]

Well, that did not include me.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

My hon. and learned Friend is chopping about with various dates that he would prefer, and he keeps making the obvious point that article 50 can come to an end if and when we have support for a withdrawal agreement, which I have supported all the way through. Would not the best thing be to take some far distant date and give us a proper extension—saying, of course, that it will end forthwith, as soon as any withdrawal agreement is passed? I think that is being proposed in Brussels at the moment, and I cannot think of the slightest sensible reason against it. We cannot keep having these ridiculous cliff-edge debates, moving the date forward by a fortnight or a month every now and again.

[The Solicitor General]

My right hon. and learned Friend is right to talk about the need to avoid cliff edges. To that extent, I can agree that today we are seeking to create a situation whereby we will have the flexibility to leave if ratification takes place. That aspect of his intervention is a very important one to remember. The negotiability of the position is simply that the talks between the parties are ongoing and if there is something fruitful as a result, we can proceed to use the provisions of section 13, with which all of us are notably very familiar. Those stages can then be passed and ratification will be deemed to be complete.

[Eddie Hughes (Walsall North) (Con)]

What advice would my hon. and learned Friend give me to pass on to council candidates for the forthcoming local elections? For two years, they have been telling constituents that we were leaving on 29 March; then it became 12 April. We now have a wipe-clean board in my office so we can fill in the current date that we are leaving. What should our candidates be telling people on the doorstep?

[The Solicitor General]

Just like my hon. Friend, I am an assiduous canvasser and I am having those conversations myself. The message that I would give to my constituents is that we are doing our part and trying our very best to resolve this situation, but we now need all elements—all Members of Parliament—to come together in a spirit of compromise, so that we can get on with the job that we were mandated to do.

[Steve Double (St Austell and Newquay) (Con)]

Is not the point that whether the delay is two weeks, two months or two years, it is not time that is needed, but political will to come to a deal? People such as me have made compromises—there is much in the withdrawal agreement that I do not like—to move to a position to support the withdrawal agreement. Is it not about time that other Members of this House were willing to do the same?

[The Solicitor General]

My hon. Friend makes an extremely powerful point. I pay tribute to him and to all hon. and right hon. Members who were faced with a very difficult decision and took what I would regard as the statesman or stateswomanlike approach by deciding to support the withdrawal agreement. It was absolutely the right thing to do, and I pay warm tribute to each and every one of them.

[Several hon. Members rose—]

[The Solicitor General]

Let me just make a little bit of progress, and then I will of course take more interventions.

[Mr Speaker]

There is only time for one or two more interventions because lots of people want to speak—move on.

[The Solicitor General]

I will obey your strictures and move on, Mr Speaker.

I turn to the question of what might happen with regards to the further extension. Before the House considers the motion, as the Prime Minister said last week, we should all be very clear what the extension would be for. It is all about ensuring that we leave the EU in a timely and orderly way, and that means leaving with a deal. That is why the Government have engaged in a constructive process with the Opposition to seek to agree a plan—either a unified position that could command the confidence of the House, or a series of options upon which it could decide. As we know, that process remains ongoing.

[Stewart Hosie (Dundee East) (SNP)]

Six times now, the Solicitor General has said that the best way to move forward is to agree a deal and that, if we are to have a Brexit at all, that is self-evidently true. The problem is that we are not being offered a deal; we have been offered the deal—the Prime Minister’s deal. Is this not the time to concede that it is a bad deal socially and economically, and that that is the reason why the Government are in the position they are in?

[The Solicitor General]

With the greatest respect to the hon. Gentleman, I disagree with his analysis about the deal. I did not note much opposition, certainly from certain corners of the House, to the detail of the withdrawal agreement. The focus of the debate has been on the nature of the future relationship and the declaration that accompanies the agreement. I therefore take issue with his characterisation of the current position.

It is our desire to pursue this process with expedition. Our intention is to secure the House’s assent to the deal and we have been clear, as I have just said, that that could include making changes to the political declaration. That would meet the necessary preconditions for ratification by 22 May, so that we could leave the EU without the need to hold European Parliament elections. While all sides recognise the urgency with which we need to make progress, given where we are and that it will be challenging, we cannot be certain that an extension until just 22 May would provide us with sufficient time.

[Dame Caroline Spelman (Meriden) (Con)]

Just to support what my hon. and learned Friend says, business says very clearly to us that the deal is good enough for it. Is he aware that the mini-extensions are really difficult, particularly for manufacturing? The car factories are shut down at the moment in anticipation of disruption. They cannot just open up and shut down on these cliff edges, so flexibility is essential.

[The Solicitor General]

My right hon. Friend makes a powerful point. As a Member of Parliament, she represents car manufacturing interests very proudly. I care very deeply indeed about the future of that important industry and will do everything I can to secure it.

[Several hon. Members rose—]

[The Solicitor General]

I will not give way, because I need to move on and wrap up, as Mr Speaker said.

For the reasons I have given, we have sought an extension up to 30 June, which as I said earlier is before the new European Parliament will be constituted in early July.

[Mrs Anne Main (St Albans) (Con)]

This is a point we have been debating among ourselves here. I gather that the European Parliament has already divvied up the seats, so to speak. What will happen if we take our seats and then do not take our seats? Surely what is being proposed will throw the whole thing into confusion.

[The Solicitor General]

My hon. Friend is right that the European Parliament has had to make contingency plans for constitution with the UK and without the UK, and there is no doubting the complications of that.

[Several hon. Members rose—]

--- Later in debate ---

[The Solicitor General]

Tempted as I am to take further interventions from right hon. and hon. Members, I must finish.

I think most colleagues would agree that it would now be odd to leave on 22 May, when just a few additional weeks would allow for the finalisation of the ratification of a deal. I should explain why we cannot seek to extend only to 22 May and then ask for a further extension to 30 June. To put it simply, we must all recognise that we cannot assemble and reassemble the European Council every few weeks.

The Government have committed to deliver on the result of the referendum, and we in this House must now come together to find a way forward, rather than seeking to further extend the process. It is up to us to chart a course for this country beyond the EU and to agree a plan that can deliver what I hope and believe will be a bright future, with the close and meaningful partnership with the EU that we all want to see. That is what the Government’s extension will provide time for, and that is why I urge all right hon. and hon. Members to support it, to support the Prime Minister at tomorrow’s Council, and to support a plan that will deliver on the referendum and take the United Kingdom out of the European Union. I commend the motion to the House.

Administration of Justice: Impact of Social Media

Robert Buckland Excerpts

Tuesday 5th March 2019 Written Statements

[The Solicitor General (Robert Buckland)]

Today I am publishing the Government’s response to the call for evidence on the impact of social media on the administration of justice. The response is available at: https://www.gov.uk/government/publications/response-to-call-for-evidence-on-the-impact-of-social-media-on-the-administration-of-justice, and a copy has also been deposited in the Libraries of both Houses.

The focus of the call for evidence was to look at the impact of social media on the criminal justice system, with particular attention paid to the issues of active proceedings and breaches of reporting restrictions and anonymity orders.

The evidence was varied and I am grateful to everyone who contributed. We can conclude that, for the moment, social media is not having a widespread impact on the trial process. This, however, may not remain the case if the issues identified are not addressed. The response sets out a number of ways that the Government will respond to the variety of issues raised. This includes improving links with social media companies, which will enable easier removal of harmful posts, and working with cross-Government partners, including the Department for Digital, Culture, Media and Sport and the Home Office, on the White Paper on online harms to tackle related issues. Further, I will work with my Public Legal Education Committee to raise awareness of the risks and implications of using social media to comment on criminal trials. As a part of this work, the Government have created a dedicated webpage to support public understanding of contempt of court and anonymity orders, which can be accessed here: https://www.gov.uk/contempt-of-court. In addition to working on guidance for the public, work is also underway to develop comprehensive guidance on contempt led by the Judicial Office. I am grateful to the judiciary for their support in understanding and dealing with this issue.

I am confident that these measures will contribute to ensuring safer use of social media in accordance with the law and will support the Government’s efforts to make the internet a safer place.

[HCWS1377]

Northern Ireland Backstop

Robert Buckland Excerpts

Tuesday 19th February 2019 Commons Chamber

[Nick Thomas-Symonds (Torfaen) (Lab)]

(Urgent Question): To ask the Attorney General if he will make a statement on options for legally binding changes to the Northern Ireland protocol of the EU withdrawal agreement, which contains the backstop arrangement.

[The Solicitor General (Robert Buckland)]

Before I answer the hon. Gentleman, my constituents would expect me briefly to express their dismay and deep concern about Honda’s announcement this morning, which will deeply affect the community. I anticipate the statement of my right hon. Friend the Secretary of State for Business, Energy and Industrial Strategy—

[Mr Speaker]

Order. Do not tell me what the situation is. The hon. and learned Gentleman is a Law Officer and a member of the Government. A sentence, but absolutely no more. He should have asked me in advance. He is either on the Front Bench or he is not. It is not for him to presume the right to speak of a matter about which he could speak if he sat on the Back Benches, which he does not.

[The Solicitor General]

I am very sorry, Mr Speaker, but I said what I said.

The Government recognise the legitimate desire of Members on both sides of the House to understand the legal effect of the proposed withdrawal agreement. On 12 February, the Prime Minister set out ways in which legally binding changes to the backstop could be achieved. She explained that the UK and the EU would hold further talks to find a way forward. Those discussions are ongoing, and it would not be appropriate to provide a running commentary.

[Nick Thomas-Symonds]

Thank you for granting this urgent question, Mr Speaker, and I thank the Solicitor General for responding. The reality is that there are 38 days until we leave the EU, and in all likelihood eight days until the next round of voting, and we are nowhere nearer having any further clarity on this issue. All this time, our economy, our jobs and our futures are affected by that uncertainty.

On 29 January, the Prime Minister told the House:

“What I am talking about is not a further exchange of letters but a significant and legally binding change to the withdrawal agreement. Negotiating such a change will not be easy. It will involve reopening the withdrawal agreement”.—[Official Report, 29 January 2019; Vol. 653, c. 678.]

Can the Solicitor General confirm that it is still Government policy to formally reopen the withdrawal agreement? If not, what positive, concrete proposals are the Government suggesting? Can he confirm whether the Government have actually put forward those proposals as options to the European Commission and the European Council?

Yesterday, on Radio 4’s “Today” programme, the Minister for the Cabinet Office said:

“The Attorney General, Geoffrey Cox, is closely involved with the negotiations too, and he will be making a speech on Tuesday to set out how, in his view, the legal tests that he has set, about ensuring that the so-called backstop cannot be used to trap the United Kingdom indefinitely, could be met and overcome.”

Can the Solicitor General clarify exactly what the Attorney General’s role is in the negotiations and when he will publish those legal tests? Are the Government seeking, as is reported in the media, a “joint interpretive instrument” on the withdrawal agreement, some sort of annexe to it, another exchange of letters, or changes to the political declaration?

We are about to make a momentous decision on the future of our country. The Government need to be clear with this House about precisely what their strategy is. Running down the clock is reckless and irresponsible. Surely this nation deserves better than a Government wandering in the wilderness, not even sure about what their next move is.

[The Solicitor General]

What would be reckless and irresponsible is for the Government to provide a running commentary on sensitive negotiations. I would have thought it is as plain as a pikestaff to the hon. Gentleman that that is not the way negotiations should be conducted. Let the Government get on with this work at pace, which is what we are doing.

Rather than criticising from the sidelines, it now behoves the hon. Gentleman and all Opposition Members to work for a constructive solution and end the uncertainty. It is in his hands as much as it is in the hands of the Government.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I understand the dangers of a running commentary, but I have a little difficulty understanding by what process we have reached this point. As far as I can see, the serious negotiations are with the Democratic Unionist party and the European Research Group in my party to see what modifications to the withdrawal agreement we have negotiated they will accept. Ministers then go to Brussels to demand that the European Union accepts the changes and threaten it with leaving without a deal if the changes are not made. As my hon. and learned Friend understands it, are those roughly the tactics being pursued? Why does he think any European politician should accept a situation whereby the permanent open border in Ireland is subject to being terminated by the British Government at any stage they want or having an end date put on it, which seems to me a contradiction? Finally, does he think that the hard-liners in the ERG would accept even that, even if my right hon. and learned Friend the Attorney General produces some ingenious form of words that seems to make it legally binding?

[The Solicitor General]

As usual, my right hon. and learned Friend tempts me down many paths that I dare not take, simply because this is a negotiation between the United Kingdom and the EU. We heard yesterday from my right hon. Friend the Secretary of State for Exiting the European Union, who has been to Brussels and held a productive meeting with Michel Barnier, and my right hon. and learned Friend the Attorney General has been playing an important part in these negotiations. May I reassure my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) that the Government remain determined to get on with the job at pace?

[Joanna Cherry (Edinburgh South West) (SNP)]

This morning, France’s Europe Minister, Nathalie Loiseau, said that there will be no renegotiation of the withdrawal agreement. In saying that, she was simply echoing what has been said repeatedly by Donald Tusk, Jean-Claude Juncker, Angela Merkel, Emmanuel Macron and Leo Varadkar. That was the position made crystal clear to the Select Committee on Exiting the European Union when we met Martin Selmayr on 4 February. He said that the most the EU would be prepared to contemplate was an additional legal instrument or a codicil to the agreement, which would incorporate the sort of assurances set out in the letter from Tusk and Juncker dated 14 January but which would not contradict or change the existing text of the agreement. Can the Solicitor General confirm that that is still the position of the EU and that there is no question of the withdrawal agreement being opened up and renegotiated in relation to anything, let alone the backstop? Will he confirm that it is clear that there will be no time limit or unilateral exit clause to the backstop? If his position is that he does not want to give this House a running commentary, why is the Attorney General supposed to be elsewhere today, giving a speech about what is proposed, not to this House, but to I know not who? Is it true that that speech has been cancelled? If so, why has it been cancelled?

[The Solicitor General]

May I assure the hon. and learned Lady, who expresses a deep interest in the Attorney General’s diary, that his plan is to make a speech about the issues, but it is not going to be some detailed exposition of a legal position, which he will bring to this House if appropriate? He has already shown an admirable willingness not only to address this House, but to comply with its orders, and I am sure he will continue to work in that spirit.

I am glad the hon. and learned Lady referred to the letter of 14 January, because it is important to remind ourselves that the Commission made it clear in that letter that it was determined to give priority to the discussion of alternative arrangements. That is very much part of the ongoing discussion. It would be somewhat difficult for me to commit the other party to the negotiation to a particular position. I have heard her comments with interest. I am here to speak on behalf of Her Majesty’s Government and our position is clear.

[Sir William Cash (Stone) (Con)]

As you know, Mr Speaker, I raised this matter urgently with you yesterday. Does my hon. and learned Friend accept that it is essential that when the Attorney General has had his discussions with the EU, he tables, in compliance with his parliamentary obligations, any asserted “legally binding” treaty text, in black and white, in the House itself by Monday 25 February, so that my European Scrutiny Committee can fully assess and report to the House on its legal meaning and the substance, and he does not merely address some audience at a City law firm?

[The Solicitor General]

My hon. Friend raises an important point, and both the Attorney General and I take the work of his Committee, a Committee of this House, with the utmost gravity. I assure him that any work that is done with regard to legal texts will of course be shared at the appropriate moment. I think he will understand that I cannot give him an absolute commitment in terms of dates, but I have heard what he said and will certainly bear those comments very much in mind in the days ahead.

[Hilary Benn (Leeds Central) (Lab)]

If the technology that could keep the border between Northern Ireland and the Republic as it is today existed, there would be no need for the backstop. The Solicitor General knows that that technology does not exist, and no one can say when it might become available. In those circumstances, will he please explain to the House how the Government can credibly ask for either a time limit or a unilateral exit clause, particularly when he knows that the EU has made it very clear that it has no intention of giving either?

[The Solicitor General]

The right hon. Chairman of the Exiting the European Union Committee elides two issues: the existence of the technology and the sensitivities of the communities on both sides of the border. I do not think any of the ongoing discussions relate to new technology in the sense that it needs to be relied on today; there is plenty of existing technology that could be used. The most important point, however, is the communities and their sensitivity. That is well understood by the Government. For the right hon. Gentleman to hang his hat on that as a reason for the absence of any potential termination clause or unilateral mechanism is to simplify things just a bit too far.

[Dr Andrew Murrison (South West Wiltshire) (Con)]

Does the Solicitor General agree that whatever agreement is arrived at with Brussels, we must get away from the idea that the potentially forever customs union is seen as basecamp for our future trading relationship?

[The Solicitor General]

My hon. Friend is right to remind us that the future relationship document contains a range of options. The negotiation on that will begin as soon as possible; let us get the withdrawal agreement done so that we can have that debate urgently.

[Sir Edward Davey (Kingston and Surbiton) (LD)]

Has the Solicitor General seen the study published yesterday by Irish Senator Mark Daly, in conjunction with two UNESCO chairmen, on the danger of a return to violence in Northern Ireland in the event of a no-deal Brexit? Given that Senator Daly says that his report

“highlights the responsibility of the UK government to stand by the backstop”,

what weight have Her Majesty’s Government given to the cause of peace in their discussions on the backstop?

[The Solicitor General]

I have not seen Senator Daly’s report but will look at it urgently because, like him, I treat the cause of peace with the utmost seriousness. In fact, everything that the Government have said reveals their dedication not only to the letter of the Belfast agreement but to its spirit as well.

[Mr Mark Francois (Rayleigh and Wickford) (Con)]

The Solicitor General has told the House clearly that the Government will not provide a running commentary on the negotiations—unless, of course, it is Olly Robbins, the Government’s chief negotiator, who can get hammered in a bar in Brussels and give a detailed running commentary to anybody who happens to be in earshot. That is extremely unprofessional behaviour for a senior civil servant. A Minister who did that would be sacked. What disciplinary action has been taken against Mr Robbins? Or does he get away with it because he is teacher’s pet?

[The Solicitor General]

My right hon. Friend referred to a newspaper report on which it would be ill-advised for me to comment. Let me say this generally about our civil servants: whatever their role, position or views, they are in a singularly difficult position in that they cannot answer back.

[Nigel Dodds (Belfast North) (DUP)]

Everybody knows that there is not going to be any hard border in Ireland and, given what Michel Barnier said, everybody knows that even in the event of a no-deal Brexit operational ways would be found so that there were no controls or checks, so all this is scaremongering. It is not going to happen. Anyone who knows anything about Irish politics knows that no Irish Government will introduce a hard border on the island of Ireland. That is the reality of the situation. The fact of the matter is that the Prime Minister has, as the Solicitor General knows, given a commitment to reopen the withdrawal agreement and to seek legally binding changes to the treaty itself. Yesterday, Simon Coveney ruled out legally binding language even outside the withdrawal agreement. Does the Solicitor General accept that some of the rhetoric coming from the Irish Government and others is bringing about the very thing that they say they want to avoid, which is the possibility of no deal?

[The Solicitor General]

The right hon. Gentleman is absolutely right in his call for everybody to cool it and to calm down when it comes to important issues such as the Irish border. I am not going to make comments about members of friendly Governments, but I will say that this is a time for calm heads rather than hot ones.

[Several hon. Members rose—]

[Sir Edward Leigh (Gainsborough) (Con)]

Thank you, Mr Speaker. This is really a taster for what will be a very calm debate: my Adjournment debate on Thursday on this very subject, which I am sure will be the highlight of the week. I do not ask the Solicitor General to provide running commentary, but has he noted that many international lawyers have said that if the EU does not want to reopen the withdrawal agreement, it would be entirely in accordance with international law for us to issue, either unilaterally or in agreement, a conditional interpretive declaration proclaiming that there will be an end date to the backstop? It is something that I have been boring on about for weeks now.

[The Solicitor General]

My right hon. Friend is anything but boring. He might be persistent, but boring? No. I commend him for his work in looking at this particular aspect of international treaty law and interpretation and urge him to pursue it.

--- Later in debate ---

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

I wonder whether the Solicitor General minds my putting on the record, and I hope he will also put on the record, the distaste that we felt at that personal attack from the Back Benches—I think from a member of the European Research Group—on a civil servant who is trying to do his job. The job that civil servants are trying to do is a very difficult one and the people responsible for that difficulty are the Government, not the civil servants trying to do a good job.

Does the Solicitor General agree that we need a running commentary in this House? I am glad that he has made this statement today, because the fact of the matter is that at a certain juncture in this dialogue we are supposed to be having to find the answer to this difficult problem, the Government side stopped talking to people. Will he resume the talks so that we can get this sorted?

[The Solicitor General]

The hon. Gentleman knows that I am here and always ready to talk, as are the Government, and the dialogue continues. The Leader of the Opposition has of course made an approach, which we welcomed. That is an important sign of the cross-party work that needs to continue.

I have said what I have said about our civil servants. Politicians are here to be accountable and to answer for our actions; civil servants are there to carry them out, nothing further.

[Vicky Ford (Chelmsford) (Con)]

I find this urgent question from the Opposition somewhat bizarre, as only last Thursday the Opposition Brexit spokesperson, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), said that he had no problems with the backstop at all. For the avoidance of doubt, will the Solicitor General confirm again that the Government stand firmly behind all their commitments on the Belfast Good Friday agreement?

[The Solicitor General]

I will never tire of saying to my hon. Friend or to the House that we remain steadfast in our commitment to the Belfast agreement. It is as important to me now as it was when it was signed 20 years ago.

[Thangam Debbonaire (Bristol West) (Lab)]

The Attorney General made a rather snippy remark, if I may say so, about my hon. Friend the Member for Torfaen (Nick Thomas-Symonds) having made a comment from the sidelines, and then implied that the solutions to this situation were as much in my hon. Friend’s hands as in the Solicitor General’s. He cannot have it both ways. Has the Solicitor General invited my hon. Friend to be part of the solution—yes or no?

[The Solicitor General]

I remind the hon. Lady, for whom I have a high degree of respect, of section 13 of the European Union (Withdrawal) Act, which gives this House the role of ratifying the withdrawal agreement. It is Parliament that has to ratify it and pass a Bill before that agreement is ratified. It is on us all—the buck stops with all of us before we can ratify—so please let us get on with it.

[Andrew Bridgen (North West Leicestershire) (Con)]

Does the Solicitor General agree with the widely reported comments of Olly Robbins, the Prime Minister’s chief negotiator, who, I believe, spoke in vino veritas when he said that he saw the backstop as a bridge to a future partnership? Clearly, that is a future partnership involving a customs union, which would prevent our having an independent free trade policy. If he does not agree with him on behalf of the Government, why is Mr Robbins still in his position?

[The Solicitor General]

My hon. Friend will have heard the answer that I gave some moments ago. I simply say that the backstop is not intended to be a bridge to anywhere. It is to be used only in extremis if we cannot achieve a future relationship. It cannot be a bridge; the bridge has to be with the withdrawal agreement and then our future relationship.

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

The Solicitor General seeks to justify the problem that is Brexit by insisting that the backstop is the problem. I understand that he wants to sympathise with the manufacturing communities in Swindon, Wales and elsewhere that are waking up to job losses, but it is difficult because he is in the Government. Given the evidence, how can the Government, abetted by the Labour Front-Bench team, continue to defend their myopia, their self-interest, and their talent for procrastination? When will he admit their part in this problem?

[The Solicitor General]

I can agree with the hon. Lady to this extent: it is incumbent on politicians from all parts of the House, most importantly on those on the Opposition Front Bench, to work to achieve a solution, rather than to achieve nano-party-political ends. I entirely agree with her. I have seen precious little of the former, and far too much of the latter, but God loves a sinner who repenteth, and I look forward to the Opposition following that advice and helping us all to do our duty and get the deal through.

[Sir Bernard Jenkin (Harwich and North Essex) (Con)]

First, may I thank my hon. and learned Friend for making it clear that there are viable alternative arrangements, which the Government are discussing, arising from the so-called Brady amendment? Last week, President Tusk tweeted that no concrete proposals had been received from the UK Government. Will he now confirm that these proposals have been presented as Government policy to the European Union?

[The Solicitor General]

I am grateful to my hon. Friend. He knows that it would be invidious of me to provide that running commentary that I have been quite properly resisting. May I assure him that the discussions are more than diplomatic niceties? They are meaningful and substantial and will continue in greater depth in the days ahead.

[Mr Gregory Campbell (East Londonderry) (DUP)]

Will the Solicitor General tell us whether the Government have made it clear to the European Union in negotiations that its insistence on the backstop will prove the most expensive financial and political wrongdoing of the past 60 years? There cannot be a hard border because of the complexity of the border on the island of Ireland.

[The Solicitor General]

The hon. Gentleman, with his deep knowledge of the border, speaks absolute truth when he talks about its complexity. May I assure him that this Government are dedicated to making sure that the backstop is fully understood and that we understand the importance of making sure that this House can coalesce around a deal that will be acceptable? I think that that is now very much understood in the corridors of Brussels.

[Mr David Jones (Clwyd West) (Con)]

It is, of course, entirely reasonable that the Solicitor General should decline to conduct a running commentary on the progress of the negotiations, but can he at least confirm that, in approaching those negotiations, the Government have borne fully in mind the view of this House that the Northern Ireland backstop should be replaced with alternative arrangements—a state of affairs that I suggest would not comprehend a mere interpretative instrument?

[The Solicitor General]

Indeed, the Government listened very carefully when the House passed the so-called Brady amendment and have pursued the strands of work that were encouraged by hon. Members. That continues, and I am confident that it will bear fruit.

[Ian C. Lucas (Wrexham) (Lab)]

Will the Solicitor General please confirm my view that the Prime Minister’s withdrawal agreement creates a different set of trade rules applying on each side of the Irish sea?

[The Solicitor General]

Without going through the detail of the protocol, the hon. Gentleman knows that the particular construct of the protocol meant that, for certain items of trade, Northern Ireland was treated as a member of the single market. There would be an effective border if Great Britain changed its rules and there was a difference between the two. That is not our intention. I need not recite the matter any further. He knows that that is one reason why we have been looking carefully again at the backstop bearing in mind the decisions made by this House. It is time for him to come forward, be a statesman and vote for the deal.

[Sir Desmond Swayne (New Forest West) (Con)]

Does this speech by the Attorney General include the assessment that the one thing worse than the backstop would be staying in the EU?

[The Solicitor General]

I have not yet read the speech, so it would be wholly premature of me to assume what my right hon. and learned Friend, with great style no doubt, will dilate upon.

[Mr Clive Betts (Sheffield South East) (Lab)]

Will the Solicitor General give us an assurance that, if there is any change to the legal advice that the Government receive about the withdrawal agreement or any related documents, that advice will be given to this House before we have the opportunity to vote on any resolution to which it might be relevant?

[The Solicitor General]

The hon. Gentleman makes a very proper point. Very careful consideration will be given to the publication of any documents that might emanate from my right hon. and learned Friend. We are very mindful of the position that we reached in light of motions passed by this House. At the moment, it would be wrong of me to prejudge anything that might or might not exist, but I heard the hon. Gentleman very clearly.

[Stephen Metcalfe (South Basildon and East Thurrock) (Con)]

I agree with my hon. and learned Friend that it is not appropriate to provide a running commentary during these negotiations, but does he agree that, during any negotiation, it is not appropriate to remove the option of being able to walk away, because that is what focuses the mind?

[The Solicitor General]

Indeed, the Government have been very clear that, when it comes to negotiations, one should not willingly and wantonly abandon the cards that they have in their hand. That is the way that we will continue to negotiate—firmly but fairly and as openly as possible, consistent with our duties to this House.

[Peter Grant (Glenrothes) (SNP)]

We have heard all the usual excuses today: blame the civil service; blame Brussels; blame Ireland for what is an entirely British-made problem. As long ago as December 2017, the Government, with the full support of the Democratic Unionist party, gave a binding commitment to provide a solution that would make their customs union red lines compatible with the Belfast agreement. Is it not the case that the only reason why the backstop will ever exist is that the Government have failed to deliver on those commitments? Will the Solicitor General not finally admit that, when it becomes clear that leaving the customs union and the single market is incompatible with the Belfast agreement, the Belfast agreement has to stay and the Government’s red lines have to go?

[The Solicitor General]

I have not been seeking to blame anybody. When it comes to constructive negotiations, I believe not in blame games, but in trying to find solutions. It is high time that the hon. Gentleman and his party actually joined the solutions-based approach rather than constantly carping from the sidelines. I am absolutely fed up with that approach. It is time that they grew up and joined the debate.

[Huw Merriman (Bexhill and Battle) (Con)]

The Solicitor General is not only a great fighter for workers in his constituency, but a canny negotiator for Government. Does he agree that, rather than Members of this place parroting position lines from EU 27 Government Ministers about how difficult it would be, we need to hold our nerve and keep our best card? That way, we will get a deal and ensure that we deliver democracy at the same time.

[The Solicitor General]

I am very grateful to my hon. Friend for his remarks about the communities that both and I and my hon. Friend the Member for North Swindon (Justin Tomlinson) serve in the context of Honda. He is absolutely right to say that it is rather rum for people in this House and elsewhere to constantly believe the words of other negotiating parties and other Governments as gospel and refuse to accept anything that Her Majesty’s Government might say as even in the remotest bit true.

[Mr Speaker]

As colleagues will know, the word “rum” was much favoured by PG Wodehouse of whose works, I suspect, the Solicitor General is, among others, a devotee.

[Gareth Snell (Stoke-on-Trent Central) (Lab/Co-op)]

The Solicitor General says it is in the fate of the Labour party to help him secure a deal, but that simply is not true. What concessions, if any, will the Government make towards the deal that the Labour party has put down as a potential way through this? He knows that I have given his Government the benefit of the doubt on more than one occasion by not supporting things that my party has asked me to, and actively opposing things on other occasions. I did not support the Government on the Brady amendment, but nor did I oppose it, because I believed it was important that the Government had the space to conduct negotiations to get a deal through. The wording of that amendment quite clearly said that the backstop should be “replaced”, so can the Solicitor General tell me, without equivocation, that when he brings that deal back, the backstop will have been replaced?

[The Solicitor General]

I note with care the hon. Gentleman’s position and I have observed what he is doing to represent his constituents. It would be somewhat pre-emptory for me to anticipate what might come back from the negotiation. I assure him that we are trying to get on with it at some speed, so that his position can be as clear as possible, and so that he can, with the rest of this House, make that all-important decision on his constituents’ behalf.

[Kevin Foster (Torbay) (Con)]

The Solicitor General will recall, as I do, that the House expressed a clear view on 29 January, and I am pleased to note that the Government are now negotiating to try to implement that and bring something back. Can he confirm, however, that it is right not to give a running commentary on this, and that anyway the House will have an opportunity next week to debate and vote on this matter again?

[The Solicitor General]

I am grateful to my hon. Friend; he is of course correct on all counts.

[Nick Smith (Blaenau Gwent) (Lab)]

This morning, the Health Secretary said that the NHS is spending £11 million preparing for no deal. In January, this House voted for the Spelman-Dromey amendment to take no deal off the table, so can the Solicitor General explain why the Government are ignoring the will of the Commons by trying to keep no deal on the table, and spending that £11 million unnecessarily?

[The Solicitor General]

I am grateful to the hon. Gentleman. The Spelman-Dromey amendment actually committed us to a course of action whereby this House would not leave without a withdrawal agreement and future relationship. Those are not quite the same things as the assertions that he makes. He knows that I am as anxious as he is to achieve a deal. He represents a constituency that I know well, which has, shall we say, more than its fair share of challenges. I want to help him and his constituents. The way to do that is to end the uncertainty and support the deal.

[Mr Philip Hollobone (Kettering) (Con)]

Is it the policy of Her Majesty’s Government to replace the backstop with alternative arrangements?

[The Solicitor General]

My hon. Friend knows the Government’s position. The Prime Minister set out a number of ways in which there could be a revision to the withdrawal agreement. Those matters are being actively pursued, and we will come back as soon as possible, and hopefully satisfy my hon. Friend that he will be able to do the right thing and support a withdrawal agreement that will facilitate the Brexit for which he has campaigned for so long.

[Mr Simon Clarke (Middlesbrough South and East Cleveland) (Con)]

On 29 January, I voted for the Brady amendment to replace the backstop with alternative arrangements. I praise my hon. and learned Friend for his personal role in helping to develop the Malthouse compromise. With regard to the second meaningful vote, whenever it comes, may I urge him to emphasise to colleagues across the Government that the definition of insanity is to repeat the same experiment and expect a different result?

[The Solicitor General]

My hon. Friend puts it in a very attractive way; I commend him for that. He, like me, is a realist, and he knows that he, representing his constituents as ably as he does, will want to resolve the uncertainty. I know that he is very keen to do that, and I applaud him for the constructive approach that he is taking. I very much commend that to him in the days ahead.

[Nigel Huddleston (Mid Worcestershire) (Con)]

Although I recognise the challenging position of many Opposition MPs, does the Solicitor General share my amazement at those Opposition MPs who say they cannot support the withdrawal agreement because it may include a temporary backstop, keeping us temporarily in the customs union but not paying into the coffers and without freedom of movement, and simultaneously advocate a permanent customs union that would stop us from doing international trade deals?

--- Later in debate ---

[The Solicitor General]

Well, well. My hon. Friend tempts me down an interesting path. He knows that of course the arbitration process is contained within the provisions of the agreement itself. I think that we appreciate that time is of the essence, and that we have to operate within that constraint, which is why we are very keen to come back to this House as quickly as possible.

[Jeremy Lefroy (Stafford) (Con)]

Last week, I listened with great attention and respect to the former Taoiseach of Ireland, Bertie Ahern, as he gave evidence to the Select Committee on Exiting the European Union. He made the point that leaving with no deal would be extremely damaging to people on both sides of the border, both Republic of Ireland businesses and Northern Ireland businesses—particularly indigenous businesses, not so much international businesses. Does my hon. and learned Friend agree that for that reason it is incredibly important that this matter is resolved, and that the withdrawal agreement is passed with support right across this House?

[The Solicitor General]

My hon. Friend has long been a keen student of these issues. He is absolutely right to warn us about the dangers of a no deal, which is why he, I and very many others have supported a deal. It is now time for all of us to do just that and end the uncertainty.

[Paul Masterton (East Renfrewshire) (Con)]

Is it not the case that the time for running around Europe with ambitious schemes that will not be accepted is over, that that simply increases the chances of a no-deal exit and that the requests for any changes need to be detailed and precise? So can my hon. and learned Friend confirm that the Government will be going in with a targeted micro-surgery approach, not trying to blast the withdrawal agreement with a scattergun?

[The Solicitor General]

I can assure my hon. Friend, who speaks with conviction and passion and serves his constituents admirably, that the Government will be taking a forensic approach. This is a detailed negotiation. The time for platitudes is long gone. We will be adopting his approach in the days ahead.

[Mr Kenneth Clarke]

On a point of order, Mr Speaker.

Withdrawal Agreement: Legal Advice

Robert Buckland Excerpts

Thursday 29th November 2018 Commons Chamber

[Keir Starmer (Holborn and St Pancras) (Lab)]

(Urgent Question): To ask the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office if he will make a statement on the publication of the Attorney General’s legal advice on the proposed withdrawal agreement.

[The Solicitor General (Robert Buckland)]

The Government recognise the legitimate desire of Members on all sides of the House to understand the withdrawal agreement and its legal effect. That is why my right hon. Friend the Chancellor of the Duchy of Lancaster confirmed to the House on Tuesday 13 November that the Government will publish a full reasoned statement to set out their position on the legal effect of the withdrawal agreement. That is in addition to the material that the Government have already published, including, for example, a detailed explainer of the withdrawal agreement and a technical explanatory note on the Northern Ireland protocol. My right hon. and learned Friend the Attorney General will also make a statement to the House on Monday 3 December—the next sitting day—about the legal effect of the agreement, and he will answer questions from Members, I am sure in the fullest possible way.

[Keir Starmer]

Not good enough.

Mr Speaker, nobody who was present in the debate on 13 November, including the Solicitor General, could be in any doubt about what the House was asking for. During that debate I stated that

“the motion requires the publication of the final and full advice provided by the Attorney General to the Cabinet concerning the terms of any withdrawal agreement. This must be made available to all MPs. It is to be published after any withdrawal agreement is reached with the EU, but in good time to allow proper consideration before MPs are asked to vote on the deal.”—[Official Report, 13 November 2018; Vol. 649, c. 235.]

The motion was passed unanimously on those terms, and when it was passed, I made it clear that those were its terms.

It was perfectly clear to Ministers, including the Solicitor General who spoke at the end of the debate, that the House was not asking for a position paper or a summary of the Attorney General’s advice. That was the offer made from the Dispatch Box during the debate, and it was roundly rejected, as the Solicitor General knows full well. The binding motion that was passed was for nothing less than for the full and final legal advice provided by the Attorney General. It is therefore wholly unacceptable, and frankly shows contempt for this House, for Ministers, including the Prime Minister at the Dispatch Box yesterday, now to pretend that the House was asking only for partial or qualified legal advice. If the Government are not willing to comply with the order of the House, why did they and the Solicitor General not vote against the motion?

In 12 days’ time, this House will have to take the most important decision it has taken for a generation, and MPs are entitled to know the full legal consequences of the deal that the Prime Minister is asking them to support. That is why the order was made, and why it must be complied with. Throughout the Brexit process, the Government have repeatedly tried to sideline and push Parliament away. If they now intend to ignore Parliament altogether, they will get into very deep water indeed. I urge the Solicitor General to think again and to comply with the order of the House.

[The Solicitor General]

With the greatest respect to the right hon. and learned Gentleman, his request is wholly premature—[Interruption.]

[Mr Speaker]

Order. Everybody will have a chance to contribute on this most important and solemn of matters, but just as the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) was heard in relative quiet, so must similar courtesy be extended to the Solicitor General. Everybody will get a chance to put his or her point of view—of that there need be no doubt.

[The Solicitor General]

Thank you, Mr Speaker. The Attorney General will come to the House on the next sitting day, and he will make a full statement and answer questions from hon. Members across the House. It might then be for the House to judge whether the Government have discharged their obligations consistent with the Humble Address, but not before.

[Sir Desmond Swayne (New Forest West) (Con)]

Who needs legal advice to know a trap when they see one?

[The Solicitor General]

My right hon. Friend makes the important point that, ultimately, the decision for this House and the motions on which it will vote are political matters, and to try to dress them up in legalese and as legal matters does not help anyone.

[Peter Grant (Glenrothes) (SNP)]

I commend the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) on securing this urgent question. A dangerous pattern is developing here. First, the Government tried to avoid their obligations under a previous Humble Address to release their impact assessments, and on two instances, senior Conservative ex-Ministers were given guarantees by Ministers at the Dispatch Box, which they then claimed publicly had been broken. Now we see the Government trying to wriggle out of yet another binding decision of this House.

Mr Speaker, this is not the time or the place to re-run the discussion about whether it was a good idea for that motion on an Humble Address to have been passed. How ironic that the Government want to re-run a debate on something that has already been voted on—just think about that! This is not the time to discuss its merits. As has been said, if the Government did not want to comply with the instruction, they should have instructed their MPs to vote against it. The reason they did not was that they knew they would have lost the vote.

Does the Solicitor General accept the ruling of the Chair that this decision is binding on the Government? If so, when do the Government intend to comply with the instruction they have had from representatives of the sovereign citizens of these islands?

[The Solicitor General]

I am disappointed that the hon. Gentleman did not listen to the answer I gave. The Attorney General will be here on the next sitting day. He will make a statement and answer questions. Then the hon. Gentleman and other right hon. and hon. Members can form a judgment on whether the motion that was carried by this House has been satisfied. My argument is that the Attorney General will meet the spirit and intention of the motion passed, but preserve the important constitutional convention relating to Law Officers’ advice.

[Robert Neill (Bromley and Chislehurst) (Con)]

The right hon. and learned Member for Holborn and St Pancras (Keir Starmer), the shadow Secretary of State, said during his speech:

“I wanted the Government to see the good sense in putting the legal position before the House, for all the exceptional reasons that have been set out”.—[Official Report, 13 November 2018; Vol. 649, c. 194.]

Accepting that, is that not precisely what the Attorney General intends to do and will be able to do on Monday?

[The Solicitor General]

My hon. Friend, the Chair of the Justice Committee, is absolutely right. The right hon. and learned Member for Holborn and St Pancras (Keir Starmer) is more familiar than most with the position of the Law Officers and their role within the constitution. I would have expected him to do better.

[Tom Brake (Carshalton and Wallington) (LD)]

The Solicitor General should be aware that I, and probably others in this House, have written to Mr Speaker asking whether this is a matter of contempt. I suspect we may find it easier to get 48 letters than others have found. Can the Solicitor General confirm whether the Government will fight any contempt proceedings? Has he identified who in the Government would be the subject of contempt proceedings? Does he agree that this latest snub to Parliament leaves Members of Parliament with a sneaking suspicion that when it comes to the vote on 11 December and any votes that come after, the Government may decide to play fast and loose with what is the normal procedure in this place?

[The Solicitor General]

The right hon. Gentleman asks me to speculate about matters that might not arise. There is no snub to Parliament. It is a wholly confected controversy that actually detracts from the real issues we should be debating and will be looking at next week.

[Simon Hoare (North Dorset) (Con)]

While the Opposition may wish to play fast and loose with the national interest, does my hon. and learned Friend agree that it would be wholly irresponsible to publish material which could or would damage the national interest?

[The Solicitor General]

My hon. Friend is right to emphasise the national interest. It is rare for a Law Officer, in this case the Attorney General, to come to the House and make a statement of this nature. We accept that these are exceptionally important, unusual and unprecedented times. That is why he is doing it. Members will have the chance to grill him when he comes.

[Nigel Dodds (Belfast North) (DUP)]

The Solicitor General is repeating the offer that was made during the debate on 13 November and repeating what the Prime Minister said yesterday, but that was not accepted by the House. The House unanimously adopted a binding resolution in the terms that the Opposition spokesperson has outlined, so why does the Solicitor General not listen and the Government start listening? This has been the problem all along. What is it that they have to hide?

[The Solicitor General]

May I assure the right hon. Gentleman that when the Attorney General comes here on Monday, he will be able to ask him questions and make sure he is properly examined on these issues? He will have that opportunity. This is not an instance where the Government seek to delay or hide; this is all about providing information at the right time ahead of the important debate that I know he will be playing an important part in.

[Maggie Throup (Erewash) (Con)]

Will my hon. and learned Friend agree that it is the role of the Government always to put the national interest at the heart of any decision?

[The Solicitor General]

My hon. Friend makes a simple but important point. If we start trying to subdivide the role of the Law Officers and create a rift in collective decision making, where will democratically accountable government end up?

[Mr George Howarth (Knowsley) (Lab)]

In my experience, when someone smells a rat, it is usually a good idea to set a trap. The Solicitor General will be aware that the Prime Minister wants everybody in the House to make a sensible decision based on all the information available to us. Should we not, then, have the fullest possible legal advice in as timely a manner as possible if we are to arrive at a sensible decision?

[The Solicitor General]

I take the right hon. Gentleman’s question with the seriousness it deserves. That is why the Attorney General is coming here on the next sitting day before we start the five-day debate—so that hon. Members have a chance not just to question him but to digest what he says, come to a judgment and make points appropriately, either in the debate or in other proceedings that might follow.

[Victoria Prentis (Banbury) (Con)]

I must confess that I remain as confused as I was on 13 November about precisely what is being requested. What differences are there between the position now and the position the Government were in when advice was provided concerning Iraq?

[The Solicitor General]

My hon. Friend, who is a former Government lawyer, will recall that the circumstances of the publication of the Iraq advice were dramatically different from the current circumstances. In brief, extracts from the then Attorney General’s advice were leaked to the press during the 2005 election campaign, and in those exceptional circumstances, the then Labour Government took a collective decision that the Attorney General should publish the full text. That is the only time it has happened. It was an exceptional case that I do not think sets a precedent here.

[Jim Shannon (Strangford) (DUP)]

Can the Solicitor General outline the legal implications of Northern Ireland entering into a customs union—including, to all intents and purposes, a united Ireland—with no voice or vote for an indefinite period and without the mechanism of a border poll, as called for in the Belfast agreement?

[The Solicitor General]

I am happy to inform the hon. Gentleman that he can put that precise question to my right hon. and learned Friend on the next sitting day. If he does, I am sure he will get a full answer.

[Vicky Ford (Chelmsford) (Con)]

I, too, listened to the debate that afternoon and raised a number of concerns about the motion. My memory is that the shadow Secretary of State asked for full advice on the final deal and not all the advice given during the negotiations and that he actually corrected the motion from the Dispatch Box four times before it was voted on, as I pointed out in an intervention. Does the Solicitor General agree that the motion was incredibly unclear and inconsistent?

[The Solicitor General]

My hon. Friend’s recollection is accurate, although to be fair to the right hon. and learned Gentleman, he sought to clarify or narrow the terms of reference of his application. I simply say to her what I said in that debate, which is that the Government will provide a full and clear legal position to the House and that it will then be a matter for the House to judge whether that is sufficient.

[Helen Goodman (Bishop Auckland) (Lab)]

If the Government knew they would take the position of not providing the full legal advice—and the Minister wound up that debate on 13 November—why did they not vote against the motion? [Interruption.]

[Mr Speaker]

Order. We cannot have people chuntering from a sedentary position, particularly when they have already spoken. We have heard the hon. Member for Chelmsford (Vicky Ford); we know what she wanted to say and we are most grateful to her for that. We do not need sedentary chuntering. It is not helpful and it is unseemly—stop it.

[The Solicitor General]

I am not going to speculate about votes that were held or not held. I know what the position of the House is. We are seeking to satisfy that through the appearance of the Attorney General on Monday.

[Will Quince (Colchester) (Con)]

I welcome the news that the Attorney General will be coming before the House on Monday, but does my hon. and learned Friend share my concern about the precedent that this may set for publishing legal advice? Where would that leave legal privilege, the cornerstone of our legal justice system?

[The Solicitor General]

I do not intend to repeat the remarks that I made in the debate, but as I said, there are good reasons why there is a convention for Law Officers. It is not just for the convenience of lawyers; it is for the rule of law to stay at the heart of collective Cabinet decision making. I would have thought that everybody in this House would want that.

[Thangam Debbonaire (Bristol West) (Lab)]

Let me refresh the memories of Government Members, who seem to have forgotten the following words:

“any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement”.

My constituents are entitled to have the will of the House met so that I can read those documents. What on earth has the Solicitor General got against those words and my constituents knowing that I am doing my job?

[The Solicitor General]

I think the hon. Lady was reading out the words of the motion, which were not the words adopted by the right hon. and learned Member for Holborn and St Pancras (Keir Starmer). He confined himself to a particular document that he wanted to see. Those are the terms of reference that he sought, and it does nobody any good to try to go back on what he said. A statement on the Government’s legal position will be published on Monday, so it will not just be the Attorney General’s words given here orally. Right hon. and hon. Members will have something in writing as well.

[Neil O’Brien (Harborough) (Con)]

Does the Solicitor General agree that if Members have important questions about the Government’s legal advice or the legal position, they will be able to find out the answers to those questions by asking the source of the Government’s legal advice—the Attorney General—in this House? Does he further agree that this is about a very important constitutional principle? If all 6,500 pieces of legal advice are published, all official advice, not just legal, will start to be published and we will have a situation in which candid advice will no longer be given. It will not be written down and, whoever is in government, we will not have proper functioning of Government.

[The Solicitor General]

My hon. Friend is absolutely right to say that if Law Officers, and indeed civil servants, cannot provide candid advice in an unencumbered way, the quality of decision making will deteriorate, as will its transparency. That is deleterious to good government.

[Carol Monaghan (Glasgow North West) (SNP)]

But this is not normal government. This is an irrevocable vote, so given the importance of that vote, does the Solicitor General not agree that MPs are entitled to the full truth on behalf of the people they represent?

[The Solicitor General]

The hon. Lady will see on Monday a document setting out the Government’s legal position. She will be able to question the senior Law Officer about that and then, in the debate, she will be able to make further points if she views the information that she has received as somehow insufficient. Knowing my right hon. and learned Friend the Attorney General, he will dilate at length if he is asked to.

[Eddie Hughes (Walsall North) (Con)]

Does my hon. and learned Friend agree that if the information given by a lawyer to a client is to be made public in future, that information is likely to be much more caveated and cautious, and therefore less useful?

[The Solicitor General]

My hon. Friend is right—the information becomes useless, actually, if that is the case. There are good reasons why privilege exists, but over and above that, there are constitutional reasons why the Law Officers’ permission has to be sought if, first, the fact that advice might or might not have been given is to be disclosed, and secondly, the content of any such advice is to be disclosed.

[Jeff Smith (Manchester, Withington) (Lab)]

The Government will have discharged their duty to the House not when the Attorney General makes his statement, but when they publish the full and final legal advice that the House has requested and voted for. Is that not what he should do on Monday?

[The Solicitor General]

I ask the hon. Gentleman to look at the document that is published, to hear the Attorney General and to come to any view that he may think is appropriate after that.

[Kevin Foster (Torbay) (Con)]

I found some of the comments of the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) surprising, to say the least, given his former role as Director of Public Prosecutions. Does the Solicitor General share my concern at the precedent that the Government might be setting, by releasing legal advice in this instance, for the advice given by previous Directors of Public Prosecutions?

[The Solicitor General]

I am here to answer questions on behalf of the Law Officers. Although I superintend the Crown Prosecution Service, it is an independent body, and I think it would be inappropriate for me to comment on the content of any advice that it may give.

[Mr Paul Sweeney (Glasgow North East) (Lab/Co-op)]

Given that the Government have already ridden roughshod over the Sewel convention in respect of the devolution settlement, what faith can we have that they will uphold its integrity on this occasion?

[The Solicitor General]

I am tempted to get into a debate with the hon. Gentleman about the first part of his question, which I am afraid is just wrong, but we are not riding roughshod over anyone. I have already explained what we are going to do: on the next sitting day, my right hon. and learned Friend the Attorney General will be here to answer questions.

[Matt Warman (Boston and Skegness) (Con)]

It is easy and cheap populism to make the demands that we have heard today, but is the reality that this would undermine the ability of the Solicitor General and the Attorney General to do their job now, and the ability of all their successors to serve future Governments as well?

[The Solicitor General]

My hon. Friend has put it eloquently. Populism is no substitute for responsible government or responsible opposition.

[Brendan O’Hara (Argyll and Bute) (SNP)]

I do not see how a unanimous vote in the House could ever be seen as cheap populism. The House said unambiguously that it wanted the Attorney General’s legal advice to be published in full. Given that the withdrawal agreement is looking increasingly like a burst ball, does the Solicitor General not think that ignoring the will of Parliament and hiding behind the “national interest” excuse just adds to the public perception that this is a Government descending into chaos?

[The Solicitor General]

Some of us actually believe in talking up our country, rather than talking it down. I am fed up with the attitude of some Members who seem to revel in the idea that the House wants to connive in chaos, as opposed to stepping up to the plate and playing its responsible democratic role. The public are looking to us to make an important decision in two weeks’ time; let us show them that we are worthy of it.

[Nigel Huddleston (Mid Worcestershire) (Con)]

It is absolutely right that we hold the Government to account. We are doing that now, and we will do it again on Monday with the Attorney General. However, does the Solicitor General share my unease about the undermining of core principles that are accepted by the whole country, such as client confidentiality?

[The Solicitor General]

It is very easy, in the eye of a storm, to cast caution to the winds and throw away sensible and well worked out convention. This is not the time for us to do that.

[Christian Matheson (City of Chester) (Lab)]

May I express my sympathy for the Solicitor General, who has been sent out today to defend the indefensible and take one for the team? May I also say, however, that responsible government means respecting the will of the House? How on earth can the Government ask the House to support the withdrawal agreement if at the same time they show contempt for a previous major decision that the House has made?

[The Solicitor General]

The hon. Gentleman is a reasonable man and an honourable Member. I ask him to listen carefully to the Attorney General, to read the documents—as I know he will—and then to reach a judgment after the next sitting day, when he will hear in full the legal basis for the Government’s decision.

[Bill Grant (Ayr, Carrick and Cumnock) (Con)]

We know that the good negotiator never shows his hand. Does my hon. and learned Friend agree that it would not be appropriate to reveal the Government’s legal advice while we are, in essence, still at the negotiating table, securing and protecting the national interest?

[The Solicitor General]

My hon. Friend is right. We are in a continuing negotiation, and that is why the national interest really is at the heart of this.

[Kevin Brennan (Cardiff West) (Lab)]

The Solicitor General has a wonderful Welsh gift for words, but may I remind him of what Disraeli once said?

“A majority is always better than the best repartee.”

There was a majority—in fact, a unanimous vote in the House—in favour of a motion for a return, which is not a request for a statement but a request for information to be published with the protection of parliamentary privilege. It is the duty of the Government to publish that information following the decision of the House, but if they still do not want to do that, the Solicitor General has already said that they could do it voluntarily. The full legal advice will come out eventually, and history will not look kindly on the Government, or on any members of the Government, if they have kept from the House relevant information within that legal advice.

[The Solicitor General]

The hon. Gentleman is a compatriot of mine and is no stranger to the wizardry of rhetoric. He reminds me of Disraeli’s comment on Gladstone that at times he might be inebriated by the intoxication of his own verbosity— but not today. I take his point, but I will say this to him: I would be failing in my duty if I did not defend robustly the Law Officers convention. That is what I am doing today, and that is what I must continue to do.

[Mr Speaker]

The correct reference is

“inebriated with the exuberance of his own verbosity”,

but what I would say is that the Solicitor General is no more in a position to level that charge at the hon. Gentleman than I would be.

[Paul Masterton (East Renfrewshire) (Con)]

I am very pleased that the Attorney General is coming before the House on Monday, but while I have the utmost respect for him, ultimately his advice is just that: advice. Is not the most important thing what the Government’s interpretation and position is and what the Government are going to do?

[The Solicitor General]

My hon. Friend is right to remind this House—[Interruption.] I see that my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) is with us. Perhaps I will say no more about—

[Mr Speaker]

Order. The right hon. Member for South Holland and The Deepings thinks that the Solicitor General’s historical recollection is correct and that mine is at fault. He might be right, but in the end it is a fairly minor point in the great scheme of things.

[The Solicitor General]

Hansard will come to our rescue, I have no doubt, Mr Speaker.

Going back to the important point made by my hon. Friend the Member for East Renfrewshire (Paul Masterton), in the end this is a policy decision made by the Government after looking at a range of options. This is a matter of politics, and to try and dress it up in a way that would be unhelpful, inappropriate and, frankly, misleading to the public is not how we should conduct ourselves.

[Clive Efford (Eltham) (Lab)]

The Solicitor General has been pugnacious in his responses this morning, and it makes me wonder what he has to hide. We are about to make one of the momentous decisions Parliament has ever had to make on behalf of our country; surely we should have time to consider over the weekend the legal advice that the Government got?

[The Solicitor General]

I can assure the hon. Gentleman that when he hears the Attorney General and reads the documents on the next sitting day, he will have ample time between then and the vote, which will not be until 11 December, to assess the information, ask more questions about it, probe the Government and come to an informed view. That is what I want him and all hon. Members to have, and that is what they are going to get.

[Dr Matthew Offord (Hendon) (Con)]

I have the utmost respect for the Attorney General, but does the Solicitor General agree that if we went to Chancery Lane we could get another opinion that would completely contradict his own remarks?

[The Solicitor General]

My hon. Friend knows that the documentation—the withdrawal agreement and the future relationship document—is all out there in the ether for the public and for informed and, shall I say, less well informed commentators to make observations about. There is a plethora of opinion, some of it legal, out there, and my hon. Friend makes that point very well.

[Diana Johnson (Kingston upon Hull North) (Lab)]

The Solicitor General referred in an earlier answer to the legal advice that was published on the Iraq war, and he said that was exceptional. I think we are currently in more exceptional times than ever before, and publishing the full legal advice for all Members of this House to see before they cast their vote on a decision that is going to affect generations to come is absolutely vital.

[The Solicitor General]

The hon. Lady makes a proper point, but there is another important distinction to be drawn between today’s scenario and the Iraq war. With regard to the Iraq war, a decision was made by Government as to whether or not to use armed force in another country. The legality or otherwise of that decision was clearly a material and key issue as to whether or not an action should be taken. This is now a different set of circumstances: a Government taking a policy decision based on a range of outcomes, with potential risks and outcomes that would result. It is wholly different. I do not think, with respect to the hon. Lady, that the precedent of Iraq is appropriate.

[Fiona Bruce (Congleton) (Con)]

I draw the House’s attention to my entry in the Register of Members’ Financial Interests. Is not maintaining the principle of legal privilege also essential to maintaining the confidence of every citizen in this country who seeks advice from a lawyer that they can expect the justice for which this country is globally renowned?

[The Solicitor General]

My hon. Friend, as a lawyer, knows that all too well. I have already explained the double importance of professional privilege and the constitutional centrality of the Law Officers’ convention.

[Chi Onwurah (Newcastle upon Tyne Central) (Lab)]

This is commonly described as the most important decision that this House has made since the second world war. The Government refuse to publish the legal advice despite Parliament agreeing that they should do so, and they refuse to publish the economic analysis despite previously agreeing to do so. This is a blindfold Brexit with no clarity for our economy, our agriculture or our working rights. Does the Minister seriously expect us to vote for it blindfold?

[The Solicitor General]

I can assure the hon. Lady that she will not be voting for it blindfold. Whatever her final decision might be, she will be in a position, come the vote, to have heard the Attorney General, to have read the Government’s position and to fully understand and appreciate the issues at stake. I know that she will do all that and make her decision.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

Despite the Welsh origins of the Solicitor General, does he agree that there is no wizardry in legal advice, that it is simply the accumulation of the collected knowledge of our culture, history and agreed norms, and that in many ways we can read all that in the press that we are seeing every day? We may seek legal advice in this place, but I have been given tons for free by every lawyer in the country, as far as I can tell. Does he therefore agree that the Attorney General’s advice is relevant, but not essential?

[The Solicitor General]

My hon. Friend puts the context of all this admirably well.

[Alan Brown (Kilmarnock and Loudoun) (SNP)]

Instead of expressing faux outrage from the Dispatch Box, the Solicitor General could have shown some backbone and voted against the motion. We have had more than two years of the UK Government telling us that no deal is better than a bad deal, but now suddenly the deal that is on the table is the only show in town and we are being told that no deal would be an unmitigated disaster. Given the Government’s ineptitude over this entire process, how are we supposed to believe their position statement on impartial legal advice?

[The Solicitor General]

The hon. Gentleman talks about backbone. It is time for him and his colleagues to show some backbone and to back a deal that serves the interests of Scotland, Northern Ireland and the rest of the United Kingdom in a way that could not be achieved by any other Prime Minister.

[Bob Blackman (Harrow East) (Con)]

For the avoidance of doubt, will my hon. and learned Friend advise the House on what the role of the Attorney General is in advising the Government and this House?

[The Solicitor General]

As I think most hon. and right hon. Members know, the role of the Attorney General is to be the Government’s chief legal adviser. He has a role in advising the Cabinet. He is not a member of the Cabinet but he attends Cabinet. The advice that might or might not be given can assist in collective Cabinet decision making. He is the lawyer, and his client is the Government. That lawyer-client relationship allows for the lawyer to provide impartial and proper legal advice, unencumbered by political considerations. That is why the convention exists. That is why it must be maintained.

[Sir William Cash (Stone) (Con)]

The Solicitor General was in post at the time and will know the answer to this question. Did the Prime Minister ask the opinion of the Attorney General, as laid down under the clear requirements of the ministerial code, which insists that, in respect of critical legal considerations, all Ministers must ask the opinion of the Attorney General “in good time” before the considerations are implemented by the Cabinet? I ask that both in respect of the Chequers proposals on 6 July, when the Cabinet was clearly bounced, and in respect of the incompatibility of the withdrawal agreement with the withdrawal Act and the express repeal of the European Communities Act 1972, before the signature of the withdrawal agreement over the weekend?

[The Solicitor General]

My hon. Friend will know the answer that I must give, which is that the convention applies. I can neither confirm nor deny the position with regard to the Attorney General as to the issue that he raises.

[Mr Philip Hollobone (Kettering) (Con)]

I hope that the Solicitor General is correct in his interpretation of the Humble Address motion and the Government’s response to it, but if he is wrong, the House might well bring proceedings of contempt against the Government, which is the most serious charge that the House can bring. When was the last time that a Government were held to be in contempt of the House of Commons?

[The Solicitor General]

I am not going to start speculating in reply to my hon. Friend’s question. It would not be right of me; this is a matter for Parliament. I would like to think that people understand that my respect and support for this place know no equal.

[Sir Christopher Chope (Christchurch) (Con)]

Can my hon. and learned Friend confirm that, as every lawyer knows, advice depends on the quality of the questions sought? Can he therefore assure us that he or our right hon. and learned Friend the Attorney General will set out on Monday all the questions in respect of which advice has been given to the Government, so that we can be sure that all the right questions have been asked?

[The Solicitor General]

My hon. Friend knows our right hon. and learned Friend the Attorney General, and I can assure him that in response to any question he asks, he will get the most comprehensive of answers, for free.

European Union (Withdrawal) Bill

Robert Buckland Excerpts

Wednesday 13th June 2018 Commons Chamber

[Keir Starmer]

I am going to press on because I have taken lots of interventions and engaged with them. I have been on my feet for nearly 45 minutes, which is not fair to colleagues on both sides of the House who want to speak.

Our amendment is a strong single market proposition. It sets out the kind of new relationship we want to achieve with the EU—a close economic relationship, with full access, while ensuring there is no lowering of common standards and protection, and recognising that shared institutions are required to achieve that. It is a million miles away from the Government’s position on the single market. It does not set a narrow route; it sets the parameters of the new single market relationship we want to achieve, and it leaves options open to achieve that. I urge all Members on both sides of the House to support it.

Let me turn to the question of human rights and other protections. Lords amendment 4 sets out enhanced protections for employment, equality, health and safety, consumer standards, and environmental rights and standards. The argument is very simple; it was very simple at the start and it is very simple now. At the moment, these rights have enhanced status because we are members of the EU. They are being converted into our law—the Government said they would convert them and they are converting them; I will come on to the charter of fundamental rights in a minute—but not with any enhanced protection. All the amendment says is that if those rights and protections are to be changed, that should be done by primary legislation.

The amendment is not contentious, and it does not even say that the Government cannot change those rights. It just says that if they believe in these rights and think they should have enhanced protection, they should for heavens’ sake put them into a form that means that if they want to change them, they have to use primary legislation to do so. The only reason I can think of for resisting that is that somebody thinks it might be a good idea to chip away at these rights without doing so through primary legislation.

[The Solicitor General (Robert Buckland)]

indicated dissent.

[Keir Starmer]

The Solicitor General shakes his head. If that is not the case, he should accept Lords amendment 4 and get on with it. This is the same argument we have been making since the Bill started its life back in September 2017.

There is good reason to be concerned. I know these are old examples, but they are real ones. The Foreign Secretary has complained of “back-breaking” EU workers’ rights, and the Secretary of State for Environment, Food and Rural Affairs has claimed that the Government should

“have the potential to...if necessary rescind”

employment protections after Brexit. Such examples give Opposition Members, trade unions and working people across the country huge cause for concern that, in the absence of enhanced protection, these rights will be vulnerable.

--- Later in debate ---

[Keir Starmer]

I agree with my hon. Friend, which is why I am saying it is a step in the right direction, but it is not enough on its own and more is needed.

I turn finally to the question of refugee family reunion. I am pleased that Lords amendment 24 is before us, and I pay tribute to Lord Dubs for his tireless campaign on this issue. Labour supports Lords amendment 24, which is long overdue. We recognise that some concern has been raised about the scope of family reunion that qualifies under the Government’s clause, and I would welcome any clarification from the Minister on that issue. However, in general, Labour will support the amendment.

In conclusion, the Lords amendments address crucial issues. Along with Labour’s single market amendment, they would be a huge step forward in improving the Bill and protecting jobs and rights. I hope that right hon. and hon. Members will support them today.

[The Solicitor General]

It is a pleasure to rise in this debate to set out the Government’s stance on these important amendments. The right hon. and learned Member for Holborn and St Pancras (Keir Starmer) was properly concerned about the effluxion of time. I share that concern; there is a lot to go over, and I will do my very best to cover all the amendments before us and, of course, to take interventions, as I always strive to do.

May I first echo the opening remarks made yesterday by my right hon. Friend the Secretary of State, who talked about the important role of the other place as a revising Chamber? There is no doubt that in some instances the other place has made some constructive improvements to the Bill, which the Government have every reason to support. However, on other matters, which were debated at length and agreed to by this elected House, the other place chose to ignore decisions that were taken here. Instead, we have a set of amendments that, I am afraid, are not properly thought through and would have a negative impact on our plan for a smooth and orderly exit.

We heard from the right hon. and learned Member for Holborn and St Pancras that the Opposition do not accept Lords amendment 51, which seeks to make continued participation in the EEA a negotiating objective for the Government. Well, we are sure about his position, but we are not so sure about that of certain other Opposition Members. However, on this issue, we are certainly in broad agreement.

This country is party to the EEA agreement by virtue of its membership of the EU. After the implementation period ends, that agreement will no longer apply to the UK. Seeking to participate in the EEA agreement beyond that period does not pass our test—that our future partnership with the EU must respect the referendum result. It does not deliver the control over our laws, and indeed other aspects of our domestic policy, that we seek. On borders, it would mean that we would have to continue to accept all four freedoms of the single market, including the free movement of people.

[Mr Grieve]

May I just pick my hon. and learned Friend up on his point about law? We are signed up to thousands of treaties in international law that bind us, and including on international tribunals. Membership of the EEA does not require any direct effect of that law in this country, so I fail to see how, on that point, the Government can be right. It is perfectly plain that we can be a member of the EEA without any direct effect from the European Court of Justice.

[The Solicitor General]

I am sorry, but with respect to my right hon. and learned Friend, I do not agree. He knows that the EEA is a creation that came after what were the European Communities. As I will go on to explain, we have significant concerns about what will happen not just to the EEA as it stands now, but with the inevitable development of EU rules, which will mean that we have little say. The issue of being law takers rather than lawmakers is particularly important to me.

[Mr Grieve]

Will the Solicitor General give way?

[The Solicitor General]

No, I will not give way.

I made that point during the long debates in the referendum campaign. As a dedicated and fervent remainer, I said that when we leave the EU, it means we leave the whole shebang—there is no cherry-picking when it comes to not only the attitude of the UK but, importantly, the position of our negotiating partners.

[John Redwood (Wokingham) (Con)]

I entirely agree with the Solicitor General. Does he agree that a customs partnership—a customs union—is a non-negotiable nonsense that the EU thinks comes with all four freedoms? Will he further confirm that we have many fine industrial companies in this country, with complex supply chains operating just in time, importing components from non-EU countries?

[The Solicitor General]

My right hon. Friend is absolutely correct to draw our attention to the wider world and the reality of trade in the United Kingdom. I absolutely understand the point about just-in-time supply, representing, as I proudly do, large motor manufacturing companies in Swindon. I get the point, which is why the Government’s policy to seek trade that is as frictionless as possible has been at the very heart of everything we have set out to do right from the beginning of the negotiations.

[Andrew Percy (Brigg and Goole) (Con)]

Representing a constituency that voted by a margin of almost seven to three to leave the EU, I am getting a little tired of hearing people who lost the referendum try to write the terms of our exit. To be totally clear on this, the Solicitor General is absolutely right that it was not just the issue of free movement that was of concern to my constituents and others in the north of England who voted in huge numbers to leave the European Union. There was also the issue of parliamentary sovereignty— being in control of our own laws. Therefore, I am afraid that being a rule taker has to be 100% out of the question on our exit.

[The Solicitor General]

My hon. Friend makes a powerful point about democracy. One of the complaints that was constantly levelled against our membership of the EU was the lack of democracy, and I am pretty sure that if we end up in the position of a rule taker, those arguments will only grow louder and longer.

[Liz Kendall (Leicester West) (Lab)]

Is it not the case that if we are no longer a member of the single market and we want full access to the single market, we will have to be a rule taker?

[The Solicitor General]

Therein lies the problem with amendment (a) to Lords amendment 51, tabled by the Labour Front Benchers. What precisely does that amendment mean? Everybody should ponder that question, because I do not think that even they can answer it. The truth is that we are back to the old chestnut of access to the single market, and that in truth means subjection to the four freedoms.

[Vicky Ford (Chelmsford) (Con)]

During my time chairing the Internal Market Committee in the European Parliament, there were many occasions when Norwegian officials came to ask me to lay amendments to legislation on their behalf, particularly in areas such as offshore oil and gas and financial services. There were other sectors where their interests and our interests were more closely aligned with those of Europe, and alignment made sense. Does my hon. and learned Friend agree that the Government’s position of continuing close alignment on issues such as medicines, chemicals and aviation makes complete sense, but that having regulatory co-operation and dialogue in other areas also makes sense?

[The Solicitor General]

My hon. Friend speaks with considerable experience from her time in the European Parliament. I agree with the approach that she urges; that is, of course, the Government’s approach, and it is understood not just here but, importantly, by those with whom we negotiate. It is vital in these debates for us never to forget that we have to put ourselves in the shoes of our negotiating partners and to understand what they will accept, before we become too carried away with positions that quite frankly—I say this with respect to Members on the Labour Front Bench, and particularly to the right hon. and learned Member for Holborn and St Pancras—just cannot be sustained.

[Dr Sarah Wollaston (Totnes) (Con)]

I thank my hon. and learned Friend for giving way. Does he accept that disrupting complex supply chains in the motor industry can lead to economic disaster, but when we disrupt complex supply chains in medicines, I am afraid it means that people will turn up at their pharmacy and the drug they need might not be available on the shelves? The public will never forgive us for that. I am really sick and tired of hearing some colleagues say that those who “lost” the referendum have no right to have any say in the type of Brexit we have.

--- Later in debate ---

[The Solicitor General]

As my hon. Friend knows, I was one of the 48%, and I do not forget that. That means that I do listen to the voices of concern about the supply of important goods and life-saving medicines. That is the Government’s position. That is why we are striving to make sure that we achieve trade that is as frictionless as possible.

[Several hon. Members rose—]

[The Solicitor General]

I will give way in a moment, but I need to develop—[Interruption.] Ah, the hon. Member for Perth and North Perthshire (Pete Wishart) is back! Shall I give way?

[Hon. Members]

No!

[The Solicitor General]

Oh, go on.

[Pete Wishart (Perth and North Perthshire) (SNP)]

I have to say, I have never been given quite such a greeting for an intervention, but I am very grateful to the Solicitor General for giving way. Will he confirm that this is all about immigration? Immigration is the cold beating heart of his Brexit. What is he going to do about nations such as Scotland, which require immigration to keep our economies competitive?

[The Solicitor General]

Welcome back. The hon. Gentleman clearly does not know me very well when he describes the Brexit that I and many other colleagues want to achieve as some sort of cold Brexit. We want to achieve the openness and willingness to trade that embodies the spirit of what it is to be British. That includes immigration that we can truly control in a way that the British people will accept. Frankly, although it is nice to see him back, I do not think I will be taking any more interventions from him.

[Hilary Benn (Leeds Central) (Lab)]

rose—

[The Solicitor General]

I will, however, taken an intervention from the right hon. Gentleman.

[Hilary Benn]

I am very grateful to the hon. and learned Gentleman. Since one of the Government’s objectives is to maintain membership of the European Medicines Agency, to which the hon. Member for Totnes (Dr Wollaston) referred a moment ago, will he confirm that that will require the United Kingdom to abide by the rules of its operation and to accept judgments of the European Court in respect of its operation? If that is the case, has he not just confirmed that we are in fact going to be a rule taker?

[The Solicitor General]

The right hon. Gentleman, as ever, makes a pertinent point. [Interruption.] Well, I am being polite to the right hon. Gentleman, because I think that is what he deserves. I say to him that questions about participation in international institutions will be made on the basis of the United Kingdom being a third country and the status of the United Kingdom becoming somewhat different from that which it currently enjoys. The point is that the consent to such further international ties will lie here in Westminster. That answers the point that has been raised, quite properly, by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), on the signing of treaties and the fact that the United Kingdom has, on many occasions in its history, chosen to share the power it has enjoyed and participate as a full and vigorous member of the international community.

[Anna Soubry]

As ever, my hon. and learned Friend is quite outstanding at the Dispatch Box, but I have to ask him this: what is the Government’s solution to ensuring that we have frictionless trade? What is the Government’s policy to deliver it?

[The Solicitor General]

As my very old and good friend knows, the Government have indeed—[Laughter.]

[Mr Speaker]

There is no need for a commotion. The Solicitor General is usually extremely felicitous of phrase. I think the word for which he was unsuccessfully groping was “long-standing”.

[The Solicitor General]

I ask that the record be corrected.

As my right hon. Friend knows, the White Paper published some months ago sets out the options the British Government have been looking at. Option 1 is the proposed new customs partnership, and option 2 is the streamlined customs arrangement. Currently, two ministerial groups are taking forward work on those models. We accept that the precise form of any new customs arrangements will of course have to be the subject of negotiation.

[Sir Edward Leigh]

It is obvious, as we listen to the debate, that there is a real tower of Babel in this place in Members’ different views. I listened very carefully to my hon. and learned Friend yesterday, when he was replying to questions posed to him by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). Is my hon. and learned Friend quite clear—this is a very serious and important question—that there is no way, given the complexity of the negotiations and the likely outcome, that the Government will allow the House of Commons, by a voteable resolution, to influence, unpack or defeat those negotiations?

[The Solicitor General]

Mr Speaker, I might risk straying into yesterday’s business, but I will briefly say that my hon. Friend knows that I have said repeatedly that we do not support or endorse the notion of this House mandating or directing the Government by resolution. We believe in full, vigorous democratic accountability, but that, frankly, is not the way that negotiations are conducted or treaties signed.

The shadow Secretary of State dealt with the question of Northern Ireland in some detail. We of course recognise the unique circumstances that apply to the border with the Republic of Ireland, and we have been consistent in our commitment to avoid a hard border. We believe that our joint report commitments can be fulfilled through the overall UK-EU future partnership, but it is necessary to ensure there is a backstop solution for the Northern Ireland border that avoids a hard border and protects the constitutional integrity of the UK internal market. No Prime Minister could ever sign up to the solution for Northern Ireland and Ireland that, I am afraid, the Commission has set out, because it threatens the constitutional and economic integrity of our United Kingdom. We are Unionists and we are proud to be so.

[Chuka Umunna (Streatham) (Lab)]

Does the Solicitor General accept that if we were to leave with no deal and we were trading under World Trade Organisation rules, that would necessitate a border, and that leaving with no deal is therefore inconsistent with Government policy as he has just stated it?

[The Solicitor General]

I entirely agree. The Government’s policy is to achieve a deal, because we are mindful of the points the hon. Gentleman and others understand.

[Nigel Dodds (Belfast North) (DUP)]

I am very grateful to the Solicitor General for his remarks. Indeed, the Prime Minister’s remark about no British Prime Minister being able to accept the EU version of the backstop was also what the shadow Secretary of State said, when he said that the Labour Front Benchers could not accept such a proposition. I welcome that. Yesterday’s amendments apply to the powers in the Bill itself. Having said that, nobody in Belfast, among all the parties in Northern Ireland, or in London or Dublin, is advocating a hard border in the island of Ireland. Our point has been that what is agreed must not come at the expense of a border down the Irish sea, or of hiving Northern Ireland off into a special set of rules. In terms of taking back control of our borders, laws and money, the EEA proposition is clearly defective. Does the Solicitor General therefore share my surprise that one of the parties in Northern Ireland that does not want a hard border is actually advocating that proposition, despite what the shadow Secretary of State has quite properly enunciated today?

[The Solicitor General]

The right hon. Gentleman is absolutely right. I am surprised that there can be that level of divergence on what is a most important point. He makes the vital assertion, which I think is right, that the important amendments considered yesterday, which were outlined very carefully, relate to the powers in the Bill and how the Bill will operate. Of course they are consistent with Government policy, and there is absolutely no question but that their terms are entirely consistent with what the British Government want to achieve. It is important to note, however, that they relate to the powers in the Bill: a correcting power, the withdrawal agreement power, consequential powers and transitional powers.

[Hywel Williams (Arfon) (PC)]

Does the Solicitor General not accept that the answer he has just given to the right hon. Member for Belfast North (Nigel Dodds), on the nature of the border between Dublin and Belfast, necessitates similar arrangements between Dublin and Holyhead if we are to sustain the Union between Northern Ireland and the rest of Great Britain?

[The Solicitor General]

The issue of the border will apply to the length and breadth of our United Kingdom. I have no doubt about that. I think the right hon. Member for Belfast North (Nigel Dodds) made the proper point that we do not want a hard border in the Irish sea between one part of our kingdom and another. That is a different point, I think, from the one made by the hon. Member for Arfon (Hywel Williams).

[Lady Hermon]

In the light of what the Solicitor General has just said in response to the right hon. Member for Belfast North (Nigel Dodds), and given that no one wants a hard border on the island of Ireland—the new IRA dissidents would become very active along the border, it would agitate Sinn Féin to campaign for a border poll and it would do the United Kingdom no good at all—may I urge him to tell the Prime Minister to stop using the phrase “no deal is better than a bad deal”?

[The Solicitor General]

I was with the hon. Lady until her last point. We need to make sure in these negotiations that the other side understand where we are coming from. When negotiating, one must negotiate hard, one must negotiate tough and one must negotiate in a way that advances the interests of the whole United Kingdom. She is absolutely right to talk about a border poll. I am not glib about that—I am far from complacent about what might happen. Both she and I understand that.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

I am very clear: I do not want to see a hard border on the island of Ireland or down the Irish sea, not least because of the implications it would have for Welsh businesses and ports. Is the Solicitor General aware that Labour’s sister party, the Social Democratic and Labour party, which does not have a voice in the House at present, has made it very clear that it urges the House to support Lords amendment 51 because EEA membership allows the regulatory alignment that would enable us to avoid a very hard border?

[The Solicitor General]

I say to our friends and colleagues in the SDLP—I think in particular of Margaret Ritchie, the former Member for South Down, who, as we know, is rather unwell, and who was a dear friend and colleague prior to the election—that I must respectfully disagree with them on this issue. A commitment to the EEA is, I am afraid, a problem in the sense that I have outlined—it is a gateway to the four freedoms.

I want to deal with the issue of Liechtenstein and other countries. Liechtenstein has, of course, negotiated an immigration quota system, but it is a country of only 37,000 people. It is probably less than half the size of most of our constituencies. I do not see a permanent exemption on free movement being afforded to a country of the size of the United Kingdom, and that is why the intervention from the right hon. Member for Don Valley (Caroline Flint) was so important. For all those reasons, we cannot accept amendment (a) or the original Lords amendment on the EEA.

[James Cartlidge (South Suffolk) (Con)]

One consequence of free movement is that we restrict unskilled migration to Europe. Is it not the case that if we no longer have free movement but have a single immigration system, unskilled migration will, by definition, have to be open to people from anywhere?

[The Solicitor General]

My hon. Friend is quite right, and that is why we need to create a system that does not discriminate between EU and non-EU countries.

[Peter Kyle (Hove) (Lab)]

Sir Martin Donnelly, the former permanent secretary at the Department for International Trade, said recently in a speech:

“To provide UK business with guarantees of full and equal access to the single market without equal acceptance of EU regulatory structures would require not so much a skilled negotiating team as a fairy godmother specialised in trade law.”

Is that not the truth? Is it not the truth that the EEA exists, whereas the Solicitor General’s negotiating stance and wish list do not and will not?

[The Solicitor General]

The hon. Gentleman is normally a great optimist and a man of sunny disposition who never lets anything get him down, least of all some of his local issues, which I know he has undeservedly suffered from in the past. He needs to have the courage to understand that in these negotiations there are interests on both sides—the UK and our friends in Europe—that must drive us towards the sort of arrangement or deal that will not only facilitate trade from our country to theirs but will protect, preserve and enhance the important business in goods and services that exists between us and other EU members.

[Catherine McKinnell (Newcastle upon Tyne North) (Lab)]

One group that has made its position very clear is the North East England chamber of commerce, which represents 3,000 businesses in my region. It has said that the north-east is hugely reliant on the EU for global trade, that 62.3% of exports go to the EU and that remaining in the EEA will reduce barriers and give chamber members the best chance to make a success of Brexit. Should the Government not be listening to the creators of thousands of good jobs in my region?

[The Solicitor General]

Of course we are listening to the job creators—I have mentioned that in the context of my own constituency experience, which is not dissimilar to the hon. Lady’s—which is why we have committed ourselves to the most frictionless possible trade. That said, any deal will have to represent Britain’s position as a third country rather than a part of the EEA structure.

[Mr Baron]

May I return the Solicitor General to what seems to have been the Opposition’s first admission that they are seeking a customs union that would not allow us to negotiate trade deals with countries outside the EU? They might be pessimistic about the way forward—they have quoted the CBI—but many people out there are saying that, provided we can negotiate trade deals with countries outside the EU, the future is very bright. It is a vital point that Labour would let down the electorate by not allowing us to trade.

[The Solicitor General]

My hon. Friend is right to remind us of one of the key planks of the Government’s policy: that important freedom to negotiate free trade deals that comes from being in law a third country.

[Geraint Davies (Swansea West) (Lab/Co-op)]

rose—

[The Solicitor General]

Not yet. I always enjoy interventions from the hon. Gentleman, who is a king of YouTube, but I will stop there—and perhaps draw a veil of charity over that.

On the customs union, I want to reiterate the commitment given by my right hon. Friend the Leader of the House last week that the Trade Bill and the Taxation (Cross-border Trade) Bill will be brought back to the House by mid-July at the latest, which will give all right hon. and hon. Members the opportunity to have the debate that I know they are itching to have on these important issues. I am sure that they will therefore forgive me if I move on to deal with the other important points the amendments raise.

I want to deal with amendment (c) in lieu of Lords amendment 3, which was tabled by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) and which we support, as I think I have already indicated to him. It enjoys support from many corners of the House, and I would commend it as a clear commitment to what is after all the Government’s policy. It respects the position their lordships took about the need for a report, and we urge the House to vote for it.

[Vicky Ford]

Will my hon. and learned Friend give way?

[The Solicitor General]

I had better not. I have to move on, I am afraid, and I have taken an intervention from my hon. Friend already.

I want to deal with the charter of fundamental rights, which was mentioned by the right hon. and learned Member for Holborn and St Pancras. We continue to strongly believe that it would not be right to retain rights of action based on incompatibility with the charter or the general principles of EU law after we have left. To keep these in our domestic law, as Lords amendments 5 and 53 seek, would undermine two crucial principles. First, it is not consistent with the proper restoration of parliamentary sovereignty if legislation, including primary legislation, can continue to be disapplied or quashed by the courts on the basis of elements of the EU legal system intrinsically linked to our membership and obligations.

I will deal right away with the comparison made with the Bill’s treatment of the principle of the supremacy of EU law. It is not a comparison that I accept. I would draw a clear distinction between the need to maintain, in a strictly limited sense, a rule that has been central to the hierarchy and interpretation of our statute book for over 40 years and the charter itself.

The latter document came into effect in 2009. It was expressly intended only to reaffirm rights that exist elsewhere, as protocol 30—signed up to by the United Kingdom and Poland—made clear. Suddenly to remove the principle of supremacy would have significant and unintended consequences and would be likely to result in a confused and incoherent statute book. It would merely introduce more uncertainty to the law’s meaning and effect.

[Mr Grieve]

Has my hon. and learned Friend not just highlighted the problem himself? Supremacy carries with it implications that the law, by its very nature, can override other laws. The reason why the general principles of EU law existed before they were incorporated in the charter was a wish to ensure in part that such laws could not apply abusively; yet we are keeping the supremacy and removing the mechanism by which the abuse can, in exceptional cases, by challenged. That seems a very strange thing for a country that wants to enhance its freedoms to do.

--- Later in debate ---

[The Solicitor General]

My right hon. and learned Friend and I have debated this matter before, and I do not want to repeat the issues that were raised then. Let me simply say to him that what we are doing is bringing back retained EU law, which will be an ever-dwindling body of law. It is not now the case that, as was feared by my hon. Friend the Member for Stone (Sir William Cash) and others, the law will constantly expand and increase to fill the spaces. I think that certainty must trump other considerations here.

As I was saying, the charter is really a catalogue of rights, rather than something that is integral to the way in which the entire legal system functions. Those very points were made with considerable eloquence and persuasive force by many experienced and expert peers, not least a number of former Law Lords. I cannot put it better than Lord Brown of Eaton-under-Heywood, a former Justice of the Supreme Court, who strongly opposed what he called both the “constitutional incongruity” of keeping the charter when we leave the EU and the “striking vagueness” of many of its articles. Lord Brown argued that, if the amendment were passed,

“certainty and clarity…would be very far from advanced. This would be wonderful for the lawyers, but frankly, for few others.”—[Official Report, House of Lords, 23 April 2018; Vol. 790, c. 1350.]

I entirely agree.

Those arguments were echoed by a considerable number of other Members of the other place from all sides, including Lord Hope of Craighead, Lord Faulks, Lord Howarth of Newport—from the Labour Benches—Lord Judge, the former Lord Chief Justice, Baroness Deech and, of course, the former Lord Chancellor, Lord Mackay of Clashfern. Lord Mackay said:

“once we are out of the EU, surely the fundamental part of our constitution should be respected—that is, that the courts of Westminster Hall, as they were, and the courts of justice of our land have no jurisdiction to set aside Acts of Parliament.”—[Official Report, House of Lords, 23 April 2018; Vol. 790, c. 1361.]

I wish that I could replicate Lord Mackay’s wonderful Scottish brogue, but I dare not do so in the presence of true Scots.

[Wera Hobhouse (Bath) (LD)]

In the Exiting the European Union Committee, we heard that absolutely the opposite was also the case: that not retaining the charter would create a great many legal uncertainties. The position remains that if we are taking EU law into our law, the underpinning of that EU law—the charter—should be part of that as well.

[The Solicitor General]

I hear what the hon. Lady says, but I disagree with her. I think that the arguments in the Lords were very finely balanced. I am sure she has read parts of the Lords Hansard and will have noted the force of the arguments that were put against the position that she occupies—and, indeed, the view of the House of Commons when we dealt with this issue in Committee and on Report.

I was disappointed that the Lords were not even willing to consider our own significant amendment in respect of the general principles, which I will come on to. I understand fully the concerns that have been raised about the protection of rights. It is, of course, vital that as we leave the EU, we do not see any dilution of domestic protections for our rights and liberties. I do not, however, accept that these amendments are necessary to the realising of that aim.

The charter did not create any more rights. It reaffirmed the rights that were already recognised in EU law—the law being retained in the UK under the Bill. The charter applies to EU institutions and member states only when they are acting within the scope of EU law. It is not—I repeat, not—as broad a body of law as the European convention on human rights and should not be compared to it.

[Debbie Abrahams (Oldham East and Saddleworth) (Lab)]

Article 26 of the charter concerns disability rights. Liberty and Amnesty International specifically say that it

“goes further than domestic laws and provides for specific measures to ensure the ‘independence, social and occupational integration and participation’ of disabled people in community life.”

That provision is stronger than domestic law. How will the Government ensure that it is protected?

[The Solicitor General]

The hon. Lady and I share an interest in—indeed, a passion for—the position of people with disabilities in this country. However, I think that that analysis is wrong: I do not think that article 26 enhances rights in the way that both she and I would understand. It does not give any extra domestic remedy to people with disabilities who might face discrimination or other injustices. I know that she is familiar with recent important Supreme Court decisions relating to benefits. We already have an important and vigorous domestic legal system whereby people who live with lifelong conditions or, indeed, other disabilities can challenge the authorities and seek redress of grievance.

[Debbie Abrahams]

rose—

[The Solicitor General]

With respect to the hon. Lady, I must press on.

I am concerned that some people—including no less than the former Attorney General, Lord Goldsmith—seem almost to be contradicting themselves 10 years on. Lord Goldsmith, who was the Attorney General, made his position absolutely clear to Parliament:

“The United Kingdom’s position, like my position, has always been that the charter affirms existing rights, it does not create any new justiciable rights in any member state and does not extend the power of the courts.”—[Official Report, House of Lords, 9 June 2008; Vol. 702, c. 427.]

It was not the noble Lord but, I think, the right hon. Member for Leicester East (Keith Vaz) who described the charter as having no more significance than a copy of The Beano. I simply ask: what has changed? For that reason, I do not accept that the rights contained in the charter will add anything to the rights of individuals in our country. Equally, I do not accept that rights saved by the Bill will not be justiciable if general principles challenges are excluded. Other sources of rights will continue to exist and operate in UK law.

None the less, we have listened to the concerns that have been raised, particularly in relation to accrued rights. We want to get the balance right. When we last debated the matter here, I agreed to a change that delayed the prohibition of certain rights of challenge on general principles grounds, when the cause of action arose before exit day, for three months after exit. This week, we tabled an amendment in lieu that goes considerably further. It delays that prohibition for three years, subject, of course, to the normal statutory limitation periods, which will continue to apply.

[Mr Grieve]

Having had a gentle dig at my hon. and learned Friend a moment ago, I now thank him, because I know that it was his personal intervention which at least secured that. It is a great improvement, and I think it will be greatly valued. It is likely to apply in very few cases, but it provides a higher level of support.

[The Solicitor General]

I am grateful to my right hon. and learned Friend. I have listened to representations from him and from other Conservative Members on the issue. I believe that we have now struck a reasonable and fair compromise between the concerns and arguments raised by Members in all parts of the House, and I urge Members to support the Government’s amendment.

It is the Government’s ambition to leave our environment in a better state than that in which we found it. That is what we owe to our children and our grandchildren, and that is why the Prime Minister said in January:

“We will use the opportunity Brexit provides to strengthen and enhance our environmental protections—not to weaken them”.

On 10 May, my right hon. Friend the Secretary of State for Environment, Food and Rural Affairs launched a consultation on the development of a new independent statutory body to safeguard the environment alongside approaches to embed EU environmental principles in our own domestic law. However, the Government have listened to concerns raised in both Houses that certainty is required more quickly, and we recognise the intentions behind the amendments tabled.

[Caroline Lucas (Brighton, Pavilion) (Green)]

The trouble is that there is a huge gulf between the lovely statements that the Environment Secretary has made and the reality of this amendment. The hon. Member for Wakefield (Mary Creagh) has already pointed to some of the criticisms of it, but there is also a major criticism that it only focuses on the role of central Government; it does not cover local authorities or arm’s length bodies, and moreover it seems to address only policies, not day-to-day activities. Those are two big problems.

[The Solicitor General]

The hon. Lady deals with the nub of the issue, and I shall address those particular points in turn. While she makes an important point about the reach of this provision, my main intention is to try and replicate what were general EU principles in the same way, to create the framework in domestic law that both she and I would embrace and which will allow the development of statutes here in Parliament and the policies that will I think in very large measure deal with the issues she is concerned with. [Interruption.] I am sorry that she is shaking her head; I am doing my very best and I will explain in further detail.

My right hon. Friend the Secretary of State announced that we will bring forward an environmental principles and governance Bill in draft form in autumn of this year to deliver those proposals, with the introduction of a Bill early in the second Session of this Parliament. For this reason we warmly welcome the amendment tabled by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) in lieu of the amendment tabled by Lord Krebs. Despite the good intentions behind Lords amendment 3, we cannot accept it. It would create legal uncertainty; it does not take into account that a significant proportion of environmental legislation and policy is devolved.

That is one of the issues I wanted to address directly to the hon. Member for Brighton, Pavilion (Caroline Lucas). As we have seen today, we have already had a number of tensions about devolution, and the Government therefore tread very carefully in the field of domestic law before expanding too widely upon policy areas that are rightly the province of Edinburgh, of Cardiff and indeed, when the Assembly sits, of Stormont.

[Geraint Davies]

Will the Solicitor General give way?

[The Solicitor General]

Not at the moment.

Lords amendment 3 would create a risk-averse approach to the design of better and more effective environmental standards. For example, it would require the Government to extend the scope to all public authorities—the hon. Lady’s point. That goes much further than the European Commission, which can take action only against a member state, not individual public authorities within that state. The Government therefore have instead proposed that the body should focus on national Government, to retain that focus on the most significant national issues. The requirement of a direct duty in Lords amendment 3 to apply those environment principles listed in the amendment across a wide range of Government activities goes far beyond the way it works at EU level currently. Such a far-reaching duty does not exist anywhere in EU law, so instead of replicating and bringing down those principles, we are in danger of creating some intended consequences that would cause concern to Members across this House. However, we recognise that an early reassurance of our intentions is needed, and we therefore move to support the amendment in lieu.

[Richard Benyon (Newbury) (Con)]

I was tempted by their lordships’ amendment, but I do think we have managed to produce something that can satisfy everybody in this House, because, as my hon. and learned Friend has just said, there is subsequent legislation that we can build on. This is the framework; the principles will be in the Bill and we will be able to construct a national policy in the way that my hon. and learned Friend has just outlined.

[The Solicitor General]

My right hon. Friend is right. He was an outstanding Minister in the Department and I am grateful to him for his continued passion for the causes he represents so eloquently.

The amendment in lieu provides further reassurance for the House and sets out that the Government will publish draft legislation no later than six months after Royal Assent to this Bill.

[Caroline Lucas]

On that point of timing, there is a real problem, particularly if we end up with no deal, because then we would not have a watchdog and the principles in place fast enough; we would have a yawning governance gap. What measures is the hon. and learned Gentleman planning to put in place as a contingency in the event of no deal, and in particular will he look at having a shadow body, just as there was a shadow climate change committee, that would get up and running as soon as possible?

--- Later in debate ---

[The Solicitor General]

As I have said, the backstop is six months—no later than—rather than the full period, and in any event I can reassure the hon. Lady that the domestic framework of environmental law, which is, rightly, among the most stringent in the world, will continue to apply. What we are talking about here are the general principles of EU law, which will be replicated domestically; it is not about the directly effective remedies, very analogous to the position regarding disability, that I know she and others will be concerned about. So I have no doubt that those existing frameworks carry on, whether there is a deal or no deal.

[Mary Creagh]

rose—

[The Solicitor General]

I give way to the Chairman of the Committee.

[Mr Speaker]

Order. Before the Solicitor General does so, I gently remind him that he had indicated to me that he might speak for up to an hour, and if that is his intention, so be it, but he will realise that he is now into the last quarter of that allocation. He is a very courteous and considerate fellow and would not want a situation to evolve in which significant numbers of hon. and right hon. Members who wish to speak in the debate were prevented from doing so on account of too lawyerly speeches, whose eloquence and erudition were equalled only by their length.

I call Mary Creagh.

[Mary Creagh]

Thank you, Mr Speaker; I have almost forgotten my point now, but I will try to grab it back. The Solicitor General raised a couple of issues. The first is the applicability to local government. At present, all agencies of government have to act in accordance with the environmental principles. Can he confirm that that will be the case with the new body?

The Solicitor General also mentioned the issue of fines. At present the Government are taking action on air pollution only because of the threat of fines from the European Court of Justice. What remedy will citizens in this country have if the Government pollute with waste and water pollution after we leave the EU?

[The Solicitor General]

I am grateful to the Committee Chair and I reassure her that we are seeking to replicate the framework that currently exists. There is going to be legislation and the consultation is, of course, a vital part of that. I know that the hon. Lady will play a vigorous and active part in that. We can get this right and deal with many of the concerns and issues she so strongly puts forward, not only today, but on all occasions when she speaks on these matters.

[Geraint Davies]

Will the Solicitor General give way?

[The Solicitor General]

Very well, I will give way to the hon. Gentleman; why not?

[Geraint Davies]

Does the Solicitor General accept that with the new powers of Ministers to change things as appropriate they could reduce our air quality standards to below that required by the EU, and we would not have the institutional framework to fine the Government and enforce those standards even if they were lower?

--- Later in debate ---

[The Solicitor General]

No. That is not true, I am afraid. Perhaps I will be a bit more polite to the hon. Gentleman and say that he raises a proper concern, but I can reassure him that that is not the case, and it is certainly not the approach of this Government.

May I now deal with the issue of the protections?

[Mr John Hayes (South Holland and The Deepings) (Con)]

Will my hon. and learned Friend give way?

[The Solicitor General]

No; may I develop this point?

This amendment will deliver robust protections. In particular, it acknowledges that there may be circumstances where the new environmental body should be able to take the Government to court; this is the important enforceability point. That power will be proportionate and appropriate, and used only as a provision of last resort, supplementing established processes including parliamentary scrutiny.

The amendment also requires that the Government list the environmental principles, such as the “polluter pays” principle and the precautionary principle, in the proposed draft Bill. The draft Bill and forthcoming policy statement will provide further details of how these principles will be interpreted and how they will apply. It will also set out that the principles should have an effect in the UK after we leave the EU that is equivalent to that before we leave. It will ensure that their primary focus will be on the formation of policy at a national level. In addition, the statutory policy statement will set out how, as at EU level now, the environmental principles will be considered in the context of the Government’s wider policy objectives. That includes the applicability of the principle of proportionality.

A policy statement will be presented here in Parliament for scrutiny before it comes into effect. As at EU level, the principles will also be considered in the context of wider objectives to ensure balanced decision making, meaning that Ministers of the Crown will also be required to give proper consideration to other important policy objectives, such as delivering a thriving economy and building the homes that people need, when making decisions. I thank my right hon. Friend the Member for West Dorset for tabling his amendment, and I urge hon. Members to support it.

I want to move on to the important issue of refugees—

[Mr John Hayes]

Will the Solicitor General give way?

[The Solicitor General]

Please forgive me, but I need to press on.

The Government recognise and share the strength of feeling in this House and beyond on the important matters of asylum and refugees, not least in relation to unaccompanied asylum-seeking children. I should be clear that what we are discussing here is the situation concerning asylum seekers—that is, people who have made an application for international protection and have not yet had their claim decided. That is entirely distinct from the equally important issue of refugees: people who have had their claims considered and been found to be in need of protection.

We as a country can be proud of the role that we have played in supporting children affected by the migration crisis. Since the start of 2010, we have granted more than 51,000 children resettlement, refugee status or alternative forms of protection. Our resettlement schemes have provided protection to more than 6,500 children. These are among the most vulnerable refugees, who the Government, with the UNHCR, have brought directly to the UK from conflict regions, together with their family members, so that they do not have to make appalling, perilous journeys to Europe, often in the hands of traffickers or smugglers.

[Tim Loughton]

I am pleased that the Government have decided to back the amendment tabled by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), which mirrors the amendment that I tabled on Report to extend the provisions on family members in accordance with the Dublin III regulations. Does the Solicitor General also realise that there is a further amendment here that the Government have not yet backed? It would ensure that children seeking asylum could be reunited with their brothers or sisters who might be under the age of 18, who might be their only surviving family members and who might be in good, stable, loving foster care in this country? Under the current terms, those children would not qualify. Surely it must be the intention of the Government to extend this?

[The Solicitor General]

I will deal with that important point in a moment if I may, because I want to do justice to the amendment tabled by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper).

In addition to providing protection through those schemes, we have taken a leading role in international efforts to address the root causes of the global crisis with our £2.46 billion of humanitarian aid in response to the Syrian conflict. We have also pledged £30 million to the Education Cannot Wait fund, to deliver better education to more than 4.5 million children in crisis regions. Leaving the EU will not change our international obligations under the UN convention on refugees and the European convention on human rights. We are absolutely clear that our co-operation with our EU partners on the important issue of asylum will be critical in order to ensure that those in need of international protection are able to access it effectively.

Before I address the substance of the amendment, I must remind hon. Members that we are dealing with the arrangements for negotiating a reciprocal agreement, so nothing in the Bill will directly confer leave to enter or remain in the UK. It is the basis on which we will enter negotiations with the EU, and nothing can be achieved unless and until we reach an agreement. It is the terms of the agreement itself, and if necessary its implementing legislation here, that will dictate who shall enter the UK and on what terms.

I want to place it clearly on record that this Government will seek a new reciprocal agreement with the EU to allow unaccompanied asylum-seeking children present in an EU member state to join close family members here in the UK, and vice versa, where it is in their best interests to do so. Any such agreement will be to allow an unaccompanied asylum-seeking child to reside with family members while their claim is being considered. That will not automatically confer long-term status here, or mean that that person will be granted refugee status. As with all claims, the UK will examine those claims in line with our international obligations and domestic rules and legislation—the due process that is such an important element of this.

Turning to Lords amendment 24, I know that Lord Dubs tabled this amendment with the very best of intentions, and I share the tributes that have been paid to him. However, we wish to ensure that the clause is phrased in such a way as to best enable the Government to deliver the intended outcome. We have a number of issues with the current drafting of the amendment, which is why we have proposed alternative wording.

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[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

I welcome the Solicitor General’s acceptance of my amendment (ii). I also pay tribute to Lord Dubs for tabling the original amendment, and to my colleagues on the Home Affairs Committee and to Members on both sides of the House who have pressed for this change. May I urge the Solicitor General again, however, to accept amendment (i) as well? I have a case involving a 12-year-old from Eritrea who was in an adult hostel in Italy and whose 17-year-old brother was in foster care here in Britain. The foster carers had said that they would take his 12-year-old sister as well, so I wrote to the Home Office. It accepted that, under the Dublin III arrangements, those two siblings should be reunited. They have been through all sorts of awful things that none of us would want our teenagers to go through. Under the Solicitor General’s current provisions, however, those teenagers would not be covered, so I urge him to accept amendment (i) as well.

[The Solicitor General]

I anticipated that the right hon. Lady would come back for more, and I quite understand the position that she and my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) have put forward, but the key consideration here must be the best interests of the child. Bringing children to join underage relatives might well be in their best interests sometimes, but not always. It is highly unlikely that the relative would be able to provide care, and there is an issue about pressure on our domestic care system—[Hon. Members: “Oh!”] No, no—we have to be careful to maintain the balance between the need to support families and allow family reunion, and unintentionally incentivising the sort of dangerous journeys that everyone in this House is extremely familiar with. That is why it is important to understand, as we approach the negotiations on the basis that is currently the requirement under the Dublin regulation, that extended family members—grandparents, aunts and uncles—will need to be able to demonstrate that they have adequate resources to care for the child effectively in order for a transfer to be made.

[Heidi Allen]

While I understand that the interests of the child should be at the heart of everything we do, this is just about a little piece of legal text to say that if it is in the best interests of the child, they should be able to join their sibling. For the limited number of cases that the Solicitor General is talking about, I can see no reason whatsoever why that would not be a kind, compassionate, logical thing to do.

[The Solicitor General]

My hon. Friend is kind and compassionate, and I think that all Members of the House are kind and compassionate people, but the interests of the child in our domestic law lie at the heart of the courts’ consideration. The paramountcy of the best interests of the child is what the Children Act 2004 is all about, and I have to apply that.

[Yvette Cooper]

The best interest test still applies. It is still in our legislation. Nothing in my amendment (i) removes the best interest test; all it does is replicate the existing arrangements, which are already covered by the best interest test. All the Solicitor General’s arguments are completely spurious.

[The Solicitor General]

I respectfully disagree with the right hon. Lady. There is still an issue with the applicability of that particular amendment and with how it would mesh with our domestic law. We must not forget that such changes are not about the conferral of rights. The passage of such amendments does not confer direct rights upon people. This is about the Government’s negotiating position. [Interruption.] I cannot give way anymore, because I must bear in mind the Speaker’s strictures. I have gone a minute beyond the hour and still have more work to do.

Moving on to Lords amendment 4, one of the key principles of the Lancaster House speech and, indeed, the Government’s manifesto was to maintain and enhance workers’ rights—[Interruption.] I have been more than generous in giving way. I pride myself on giving way to Members from whichever corner of the House they may come, and I am sorry if hon. Members feel that I am being ungenerous, but I must respect time, too. That is why I want to press on.

The Bill deals in many places with the status of retained EU law, but much of our debate has turned on how that retained EU law is amended once we have left the EU, hence the core of the concerns about Lords amendment 4. The Government and Opposition are more united than divided here. We both clearly want to maintain the protections and rights that are established in EU law. Our amendments in the Lords have done this for EU regulations and for all the directly effective rights established in the treaties by making them akin to primary legislation—the highest protection we can possibly give in the UK system.

[Lady Hermon]

Will the Minister give way?

[The Solicitor General]

I cannot give way, because I really must press on.

We are committed to proper scrutiny and engagement with Parliament and the public on our corrections to EU law and future changes. In addition to all the changes we have already made to the Bill, there will be a presumption in favour of engagement or consultation where it is proportionate and sensible to do so. Of course, Departments will consult where there is a statutory duty to do so. Departments across Whitehall have already undertaken engagement or consultation with stakeholders for active discussions on areas where that has been proportionate and sensible, and that will only increase.

Most of those who have supported Lords amendment 4 are well intentioned, but some must have known that it would have hugely detrimental effects on how we could deliver a functioning statute book ahead of our exit and in the future. Instead of protecting the law in the crucial areas of employment, equality, health, consumer standards and environmental protection, it would weaken it. By calling this amendment “enhanced protection”, some are seeking to hide a great danger.

By limiting the changes that delegated powers could make to retained EU law relating to the specified policy areas to only those that are deemed technical, the amendment would fundamentally limit our ability to properly correct deficiencies. That risks dramatically increasing the amount of primary legislation that needs to be enacted ahead of our exit, putting more pressure on this place ahead of Brexit. Even the changes deemed to be “technical” enough to be achieved through delegated powers would still face a lengthy enhanced scrutiny process, which the Lords could force to be as long as the 18 months required for legislative and regulatory reform orders. In other words, our statute book could not be made ready for exit by 29 March 2019.

[Mr Grieve]

I note and understand the points made by my hon. and learned Friend, but the intention behind the amendment was not to create difficulty for the Government, but to find an easier way of providing enhanced protection for areas of law. That suggests that the Government should have come back with an amendment in lieu.

[The Solicitor General]

I hear my right hon. and learned Friend. Both he and I have had anxious discussions about the definitions within the amendment. We are seeking to allow protections to be carried forward through our existing framework, so that the sort of changes that need to be made can apply to a whole range of areas. Changes could relate to the trade in seal products—cruelty to seals—or to protecting people on offshore oil and gas installations from fire and explosions, which is in the working time regulations, or to the protection of the marine environment. We need that element of flexibility.

That is not a way of avoiding the procedures of the House; it is about making the law clear, certain and usable to protect all the different categories that we are dealing with. I am worried that we would be kneecapped, not just as a Government, but as a Parliament. There is a lot of work to be done ahead of Brexit, and we need to concentrate on what is fundamental and what will involve change. Lords amendment 4 fundamentally affects how we can do that, so we must oppose it.

My right hon. Friend the Secretary of State for Exiting the European Union left the House in no doubt yesterday of the importance of this legislation. The Government listened in the other place and showed flexibility by tabling amendments that genuinely improved the Bill, but we rightly held firm on those areas where amendments proposed would have an adverse effect. I am somewhat downhearted that the House of Lords has not shown the same level of respect that we show to them and has sought to overturn decisions taken here on important issues relating to the protection of rights. I therefore ask the House to stand behind the Government tonight in ensuring that this legislation is fit for purpose, respects the referendum result, and respects the constitutional role of this House.

[Mr Speaker]

I call Stephen Gethins.

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[Mr Simon Clarke]

I rise in support of amendments (c) and (d) in lieu of Lords amendment 3, which address environmental standards and to which I have put my name. In addition, I want to express my pleasure that there has been progress today on the Dubs amendment, for which I thank the Solicitor General.

[The Solicitor General]

I am grateful to my hon. Friend for giving way. I have listened carefully to opinion right across the House about the outstanding matter on the Dubs amendment. The Government will look again at the particular issue raised by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), with a view to a potential amendment in lieu in the other place.

[Mr Clarke]

I thank the Solicitor General for clarifying that. It is right that as we move into post-Brexit territory, we show that we want to be an inclusive and welcoming country to those in the world who are most desperately in need.

It seems to me that Brexit is in fact quite a simple concept. My constituents knew that they were voting for three things: to have control of our immigration policy, to leave the jurisdiction of the European Court of Justice and to determine our trade policy. That is why it is so essential that we leave both the single market and the customs union. Neither institution is compatible with delivering what my constituents and our country voted for.

That is why I stand in frank disbelief at the nature of some of the comments we have heard this afternoon. I always regret what is called blue-on-blue action, but I cannot stand by the comments made by my right hon. Friend the Member for Broxtowe (Anna Soubry), who said that we have to “suck it up”. My constituents voted to leave the European Union precisely because they were not going to suck it up and because they knew what they wanted, which is for us to leave the European Union.

Fidelity to that vote, to our voters and to the promises that are implicit between the governing and the governed is essential to the health of our democracy, not just in the context of this debate but for the years and centuries that stretch ahead. It is clear to me that, as the right hon. Member for Don Valley (Caroline Flint) said, if we break faith and ignore their voice we will have created the most almighty problem for ourselves. Indeed, we will have lost the chance to have a more sensible debate about issues such as immigration, which have stirred such passions. We will only ever be able to get to a place where we can have a more balanced and constructive conversation once we have accountability in this House for who comes to our country and on what terms.

With that in mind, we have to recognise, when we hear comments about how this is playing to extremists, that the real danger with extremism in our politics is if we ignore what people voted for. We have seen in Germany, in Italy and even in the United States what happens when people believe that their voice is not being respected. That is the danger here—because, my goodness, we will look back on this as the most cataclysmic mistake if we unleash some of the forces which are all too eager for this House to fail to deliver what the British people voted for. That is my warning to colleagues, and that is why I will categorically not vote for any amendment that fails to deliver the Brexit that this country demands.

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[Conor Burns]

I will not give way because we are very short of time.

It is also about ending the vast payments we make to the EU, for which we are somehow supposed to be grateful because we get a little bit of it back.

In short, the British public voted to become an independent, self-governing country again. It is incumbent on this House to deliver on that verdict and to reject the Lords amendments, which have only one aim, which is to thwart the democratic will of the British people.

[The Solicitor General]

rose—

[Mr Speaker]

There has not been an Opposition wind-up, and I had agreed with colleagues that we would proceed to the votes. It is one thing to have a series of wind-ups, but it is another thing to have one wind-up.

[The Solicitor General]

I just want to respond briefly.

[Mr Speaker]

Very well.

[The Solicitor General]

The right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) mentioned the Dubs amendment made by the Lords and, in her absence, I reiterate my assurance that the Government will go away and look at drafting an amendment for their lordships’ House when the matter goes before them. On that basis, I hope she will not press the amendment in her name.

[Simon Hoare (North Dorset) (Con)]

On a point of order, Mr Speaker. You will appreciate the importance of these Divisions. You will also be aware from our earlier exchange that the annunciators are not showing them, but do we have the assurance of the House authorities that the Division bells themselves are fully working in all parts of the House?

Child Sexual Exploitation and Consent to Sexual Intercourse

Robert Buckland Excerpts

Tuesday 22nd May 2018 Westminster Hall

[The Solicitor General (Robert Buckland)]

It is a pleasure to serve under your chairmanship, Mr Bone.

May I put on the record the reason for my presence at this debate, bearing in mind my ministerial responsibility as superintendent of the Crown Prosecution Service of England and Wales? As this debate has been quite rightly focused by my hon. Friend the Member for Telford (Lucy Allan) upon questions of law and the prosecution of these offences, it is entirely appropriate that I am appearing in Westminster Hall today.

May I assure my hon. Friend that I have already had an important conversation with the Under-Secretary of State for the Home Department, who is the Home Office Minister with responsibility for safeguarding? Indeed, Home Office officials are here today with me.

I congratulate my hon. Friend the Member for Telford on securing this debate. I know how much she has campaigned for the victims of child sexual exploitation in her constituency and how she has been a tireless champion of securing an independent inquiry into systematic issues that have resulted in a whole cohort of young people in her local area being failed by the authorities after having to suffer appalling abuse.

I speak not only as a Minister; I have many years’ experience in prosecuting just this type of offence. Having taken what is now the Serious Crime Act 2015 through Parliament as a Minister, I am proud that in that Act we updated the law to remove old-fashioned references to child prostitution in acknowledgement of the fact that when it comes to consent we are dealing with children. These are children who deserve the protection of the law, and to apply to them the standards that can be applied to fully mature adults is a betrayal of their vulnerability and a failure to safeguard them. Over and above everything, the issue must be one of safeguarding. Underlying some of the issues that my hon. Friend raised is perhaps a failure, at times, by the respective agencies and their representatives to understand that safeguarding must come first and therefore that the point of view of the child—the victim—is paramount, rather than considerations of another kind. If people understand that, we will make even further progress.

I have been part of a number of inter-ministerial groups on child sexual exploitation, from my time as a member of the coalition Government right through to this year, and I have been impressed by the sense of purpose the Government have shown in seeking to co-ordinate and improve the work that needs to be done to safeguard children. We have had new legislation on safeguarding and a robust response to the appalling incidents in Rotherham, Rochdale and other local areas that shone a light on the problem often encountered by young people in getting their story regarding child sexual exploitation heard and believed.

My hon. Friend raised a specific case, of which I am aware, and I know that she has written to colleagues in the Home Office. She will get a response; I will undertake to ensure that by writing to her. It would perhaps be invidious for me to make detailed comment on the merits of the case, as a further inquiry investigation is under way, but I take on board her points. She drew the important distinction between consent and knowledge of age, both of which issues I will deal with now, in general terms.

When a case meets the threshold, the police should refer it to the Crown Prosecution Service for a charging decision. That decision is then made by an independent prosecutor in accordance with the code for Crown prosecutors and CPS legal guidelines. On consent, it is important to draw a distinction between consent in fact and consent in law. In fact, the threshold for absence of consent in law is somewhat more rigorous. A child under the age of 16 cannot in law consent to a sexual act. Therefore, a person is guilty of a child sexual offence such as sexual activity with a child contrary to the 2003 Act if sexual activity takes place and the child is either under 13 or is under 16 and the perpetrator does not reasonably believe them to be 16 or over.

My hon. Friend referred to the question of reasonable belief and I assure her that the test is rigorous and takes into account all the evidence in the case. Proof of the age of a child is of course a simple, straightforward matter—date of birth can easily be proved. The question of reasonable belief often depends on the circumstances, but I can assure my hon. Friend that the old chestnut of, “I didn’t know her age. She didn’t tell me,” does not mean that the police and the prosecution are suddenly discharged of any responsibility to bring the case. Wider circumstances need to be considered and assessed. Each case must stand or fall on its facts, and the perception that somehow at all times the burden should be on the child to prove their position is not correct. It is important that we as Ministers and parliamentarians get that message out there, so that young people know that if they come forward they will be taken seriously and treated properly.

The hon. Member for Washington and Sunderland West (Mrs Hodgson) knows well from experience—we have worked together on such issues and I am grateful for her presence and her intervention today—that it is vital that young people know that we have moved on from the appalling response we saw in Rotherham and other local authorities and that that approach is no longer acceptable. The courts themselves, in sentencing, now readily acknowledge that. The idea that somehow a child can consent in any way to sexual activity, where consent is not an element of the offence, is no longer relevant in sentencing. Indeed, the courts no longer give defendants any mitigation or concession for so-called implied consent on the part of a victim who is a child. That has been an important development as well.

In the context of offences of rape, other than the rape of a child under 13 for which consent is not necessary, the absence of consent must be proved regardless of age. The definition of consent is that a person agrees by choice and has the freedom and capacity to do so—and there comes the issue. Again, it is important that we send the message out clearly that the age and circumstances of the complainant—the victim—must be taken into account in understanding age and capacity.

Acquiescence is not consent, and that message is vital, particularly in the context of some of the child sexual abuse of which we are all aware. The fact that a vulnerable or young person has been groomed starkly raises the reality that he or she may have been placed in a position in which they have merely acceded to sexual activity, rather than having given real, meaningful consent. The despicable actions of those who prey upon such young people should, and have, come under scrutiny when considering the issue of genuine consent. Even in the absence of clear evidence of grooming, a victim under the age of 16 is likely to be considered vulnerable, regardless of whether the defendant believes them to be older. Evidence that a victim has been drugged or is so intoxicated that they no longer have capacity to consent may also support the absence of consent per se.

[Mrs Hodgson]

I am not privy to all the facts of the case, but in the light of what the Solicitor General said about the age of consent being 16, I really struggle to understand why the men are at large and not behind bars. I am curious about that.

[The Solicitor General]

The hon. Lady is absolutely right to reiterate the point that has been made. I cannot comment on the specific case, but it is clear to me that we have moved a million light years from perpetrators being able to get away with such things with impunity.

[Lucy Allan]

Did my hon. and learned Friend say that there will be a review into the case I have put before the Home Office?

[The Solicitor General]

There is indeed a further investigation as a result of my hon. Friend’s letter and I have committed to writing to her about the outcome.

The tools that the prosecution now has are considerable. We even have tools relating to sending sexual communications to a child ahead of any grooming, which came into force last year, and for young people between the ages of 16 and 18 we also have preventive measures, such as sexual risk prevention orders. I am grateful to my hon. Friend for raising the matter. I undertake to respond to her more fully in relation to the specific offence and I reassure her that this Government, and this Solicitor General, take child sexual abuse extremely seriously.

Question put and agreed to.