Section 1 of the European Union (Withdrawal) Act 2019

Debate between Robert Buckland and Dominic Grieve

Tuesday 9th April 2019 Commons Chamber

[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.

European Union (Withdrawal) Bill

Debate between Robert Buckland and Dominic Grieve

Wednesday 13th June 2018 Commons Chamber

[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.

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[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.

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[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.

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[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.

European Union (Withdrawal) Bill

Debate between Robert Buckland and Dominic Grieve

Tuesday 12th June 2018 Commons Chamber

[Mr Grieve]

I agree entirely with my right hon. Friend. Let me explain. I did take on board the Government’s concerns regarding the Lords amendment, but I could see that the micro-management of their negotiating position after the autumn, if there were no deal, could present difficulties. My amendment sought to avoid that by doing two things. First, it sought to provide a mechanism whereby no deal, if there is no deal, must come to this House. That would provide great reassurance to all Members that there was a system in place to deal with the position. Similarly, there would be a system in place to deal with the rejection of a deal, and finally—and only then would there be a mandatory condition —a system that would operate if by February we were still faced with an impossible position of having no deal at all.

[The Solicitor General (Robert Buckland)]

Of course I accept that my right hon. and learned Friend and other colleagues wish to discuss further the role that Parliament will play in all the Brexit scenarios that may present themselves to us. We cannot bind the negotiations, nor can we disrespect the referendum result, but—as my right hon. Friend the Secretary of State said in his speech—we do commit ourselves to meeting to see how we can build on Her Majesty’s Government’s amendment (a) in lieu today, ahead of the Bill’s stages in the House of Lords, and to meeting my right hon. and learned Friend tomorrow to make that important progress on what we have achieved today.

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[Mr Grieve]

I take my hon. and learned Friend’s comments at face value, and I am most grateful to him for making them. He must understand, however, that, as usual when we reach this stage of a process, we face some difficult challenges. There is a Lords amendment, and if we agree to it, that is what will go into the Bill. Alternatively, we may endorse the Government’s approach and support the amendment in lieu. The Government could, I think, adopt my amendment; it is a rather arcane procedure, but they could include it. If they do not want to do that, however, I shall need some pretty cast-iron assurances that when the Bill returns to the Lords, with the Government’s amendment in lieu, we will implement significant parts of what I have put forward, because we cannot allow a situation in which there is no mechanism for dealing with no deal.

[The Solicitor General]

Overnight, I read my right hon. and learned Friend’s amendment (ii) to Government amendment (a) very carefully, and I think that there is much merit in the approach that he urges the House to adopt in subsection (5A). I need more time to think about the other parts of the amendment—[Interruption] —but by indicating my position on a key part of it, I am indicating that the Government are willing to engage positively ahead of the Lords stages.

[Mr Grieve]

Again, I am very grateful to my hon. and learned Friend, and let me say to the House that I do not think his views should be dismissed. I am conscious that if we are to make progress, we ought to try to do this by consensus. However, my hon. and learned Friend must also understand—as my right hon. Friend the Secretary of State must understand—the difficulty in which the House finds itself when faced with a choice of this kind. I have been through the same process in opposition and now in government. If the House makes the concession of allowing the dialogue to continue—and I can see the merit in that—it must be done in good faith. Let me say to my hon. and learned Friend that without that good faith, the other place will put the amendment back in, and the good will will be gone when the Bill comes back to this House.

[The Solicitor General]

I can give my right hon. and learned Friend that assurance. Everything that I do with him and other colleagues is always in good faith, and that will remain the case.

[Mr Grieve]

I am grateful to my hon. and learned Friend. I was glad to hear what he said about the principle—which, in my view, is entirely innocuous—that

“Within seven days of a statement under subsection (4) being laid, a Minister of the Crown must move a motion in the House of Commons to seek approval of the Government’s approach.”

That is not exactly rocket science. The second principle is that there must be a mechanism providing for a Minister to come to the House of Commons by a suitable date—and I think 30 November 2018 must be the one—in the event of no deal, so that the Government can tell the House how they intend to proceed and seek the approval of the House for that.

I know that subsection (5C) causes my hon. and learned Friend much more difficulty. I understand the constitutional issue, and I will come to that before I finish my speech; but the reality is that without a mechanism whereby the House can properly shape the crisis that will be enfolding us at the end of February if we have no deal, we will do it in an ad hoc way, which is likely to be infinitely more damaging to the wellbeing of the citizens of the United Kingdom than putting together a package that can be looked at now.

[The Solicitor General]

As usual, I am listening very carefully to my right hon. and learned Friend’s observations. They will form a clear basis for a formal set of discussions that we can start at the earliest opportunity ahead of the Lords—

[The Solicitor General]

Of course, Mr Speaker. I was about to give a clear undertaking to use my right hon. and learned Friend’s comments as the basis for structured discussions ahead of the Lords stages. [Interruption.]

[Mr Grieve]

I am grateful to my hon. and learned Friend. Obviously, the House will have to make up its mind about how it wishes to proceed, but, as I have said, there must be a proper understanding of the disquiet that is felt on both sides of the House.

European Union (Withdrawal) Bill

Debate between Robert Buckland and Dominic Grieve

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

[The Solicitor General]

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

[Mr Grieve]

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

[The Solicitor General]

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

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[The Solicitor General]

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

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

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

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

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

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

[Mr Grieve]

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

[The Solicitor General]

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

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

European Union (Withdrawal) Bill

Debate between Robert Buckland and Dominic Grieve

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

[The Solicitor General]

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

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

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

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

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

[Mr Grieve]

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

[The Solicitor General]

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

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

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

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

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[The Solicitor General]

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

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

[Mr Grieve]

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

[The Solicitor General]

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

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

European Union (Withdrawal) Bill

Debate between Robert Buckland and Dominic Grieve

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

[Mr Grieve]

I am entirely supportive of the intention behind this amendment, but being too much of a lawyer, I probably did not sign it because I realised the potential implications—

[The Solicitor General (Robert Buckland)]

indicated assent.

[Mr Grieve]

I see the Solicitor General nodding. However, the fact that it might have legal implications does not mean that it is not a very desirable objective.

European Union (Withdrawal) Bill

Debate between Robert Buckland and Dominic Grieve

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[The Solicitor General]

If I may, I will move on to amendment 10, which would remove paragraphs 1 to 3 from schedule 1. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) earlier drew the attention of the Committee to these important matters, and I am grateful to him for the constructive way in which he has sought to approach this issue. First, we cannot agree to the removal of paragraph 1 because the effect would be to create huge uncertainty. How would our domestic courts approach the task of assessing challenges to the validity of converted law? That is a job that they have never had before. Who would defend those challenges? What remedies would be available to the courts? How could converted law that was found to be invalid be replaced? The amendment does not deal with any of those vital questions.

Similarly, we cannot accept that paragraph 2 should be removed from the schedule. There is no single definitive list of the general principles. They are discovered and developed by the Court of Justice of the European Union. Paragraph 2 in its current form maximises certainty by specifying a clear cut-off point and stating that a general principle needs to have been recognised by the Court before we exit. Without that, it would be completely unclear which general principles could be used as the basis for a challenge. It is not even clear whether post-exit CJEU jurisprudence could be taken into account, and so whether new principles couldbe discovered after exit. That would be completely inappropriate.

[Mr Grieve]

I would like gently to point out that I did not propose deleting the interpretation provision 5(2). Admittedly, it does not interpret anything because the rest is gone, but it nevertheless made it pretty clear that we were talking about retained EU law and that such law was created prior to the date of our exit.

[The Solicitor General]

I think that my right hon. and learned Friend has answered his own point. Without sub-paragraph (2), paragraph 5(2) becomes rather difficult to apply. I want to get to the nub of his concern, however, which is paragraph 3 of the schedule. We recognise the strength of the views that he and other Members on both sides of the Committee have expressed on this issue, many of whom have spoken this afternoon. We are listening, and we are prepared to look again at this issue to ensure that we are taking an approach that can command the support of the Committee.

Simply removing paragraph 3 in its entirety, however, is not something that we could agree to. It would result in an open-ended right of challenge based on the general principles of EU law, however they are defined, after exit. It would mean that domestic legislation, both secondary and primary, rules of law and executive action could be disapplied or quashed if found to be incompatible with those actions. Currently, the general principles apply when a member state is

“acting within the scope of EU law”,

so after exit the circumstances in which the general principles could be relied upon would not be clear.

Allowing courts to overturn Acts of Parliament, outside the context of EU law, on the basis of incompatibility with these principles would be alien to our legal system and would offend against parliamentary sovereignty.

[Mr Grieve]

My hon. and learned Friend raised the question of scope and when this would apply, but it seems to me that he was answering his own question, because it comes when there is a clash between the law that has been retained and has supremacy and any domestic legislation. It is precisely because the supremacy of the retained EU law is kept that it is necessary also to have the potential for the general principles to have that supremacy as well, because they are essential to the purpose of interpretation of that law.

[The Solicitor General]

I wanted to deal with the issue in this way, because it seems to me that the nub of the issue that my right hon. and learned Friend is concerned about is with regard to the rights of challenge relating to pre-exit causes of action. It would be possible to retain those, and in relation to executive action even after exit in areas covered by retained EU law. We can agree that there should be appropriate mechanisms for challenging the actions of the Executive. I am happy to discuss further with him what might be needed. I am also willing to discuss whether there needs to be some further route of challenge on secondary legislation.

The rights landscape is indeed complex, and we are seeking with this Bill to maximise and not remove any substantive rights that UK citizens currently enjoy. In view of my commitment to look at this again, I invite my right hon. and learned Friend not to press amendment 10 and to agree to work with us in this shared endeavour. The Government will bring forward our own amendments on Report for the purposes of clarifying paragraph 3 of schedule 1.

[The Solicitor General]

Let me turn to paragraph 3(1) of schedule 1 to be absolutely clear. I am interested in looking at all aspects of that provision: sub-paragraphs (1) and (2).

[Mr Grieve]

I am most grateful to my hon. and learned Friend, who has made a really important concession at the Dispatch Box, which I much appreciate. It clearly reflects the disquiet that has been shown across the House. I can tell him now that, in the light of that, I will not be pressing my amendment to a vote. However, it is clear from what he has said that although some of the issues that I have raised have been met, I ought to put it on record that it is also clear that the issue about whether this could be used to disapply primary legislation appears to remain an area of potential disagreement between us, which I hope we may be able to iron out. I have to say that it is a strange area of disagreement, given that elsewhere we have precisely the possibility of that happening, by virtue of keeping the supremacy of retained EU law.

[The Solicitor General]

As I have said, I want to ensure that the dialogue that has been opened continues. My right hon. and learned Friend knows that at all times the spirit with which he and other hon. Members have tabled amendments has been entirely understood and respected by those on the Treasury Bench. We have never sought to pillory Members for doing the job of scrutinising legislation. I have been there myself many times and can remember tabling dozens of amendments in order to probe the Government’s intentions in a Bill.

--- Later in debate ---

[The Solicitor General]

I make it clear that, in the words of both the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton, today and, previously, the Secretary of State for Exiting the European Union, we are seeking to publish such details. If there are any further concerns, we can have a continuing dialogue to ensure that the information is in a comprehensive form that seeks to address the issues raised today and elsewhere. The publication on 5 December will therefore be a meaningful event that assists everybody in greater understanding and assists greater progress on getting this process right.

On the question of general principles, I emphasise that there are good reasons to say why it would not be appropriate to incorporate the constitutional and administrative principles of the EU as free-standing principles in our law by inserting a specific right of action, or to incorporate the remedy of striking down domestic legislation based on incompatibility with EU law principles, when we are no longer a member of that institution. First, some of these principles will, indeed, cease to make sense when we have left, except for the purpose of interpreting retained EU law, whereas other principles are already, and will continue to be, reflected elsewhere in our domestic law anyway.

[Mr Grieve]

Has not the Solicitor General, again, just answered his own question? I appreciate that some of the general principles will evaporate because they cease to be relevant, but those that are relevant to the interpretation of retained EU law must still be relevant because they will be used as a tool and aid to interpretation. In those circumstances, why should an individual or a business be deprived of raising them as arguments for saying that, in fact, this law is supposed to be supreme, and therefore able to overcome our own domestic legislation, and ask why the general principles cannot be used to have that bit of offending domestic legislation set aside? I just do not understand the rationale.

[The Solicitor General]

The rationale is quite straightforward in the sense that, in seeking to achieve maximum certainty, there is danger in allowing the system to create a situation in which the law might rapidly degrade in a way that does not achieve such stability and certainty. I accept it is almost reverse logic, but there is logic in trying to make sure that we have an identifiable and pretty understandable body of retained EU law.

I give the example of the EU principle of good administration, which will not have any relevance to our UK law after exit because, of course, the bodies vested in EU agencies will be returned here and all the normal domestic rules about the exercise of such powers by public bodies will apply. Another example is the principle of subsidiarity, which does not make sense outside the concept of EU membership.

Secondly, the Bill will, of course, take a snapshot of the law as it stands at the moment we leave. Retaining a right of action based on general principles of EU law, which will of course change in the future, would lead to uncertainty for businesses and individuals about their rights and obligations if we end up in a situation where pre-exit legislation could be struck down, or where administrative decisions could be challenged, on the basis of those principles.

In other words, that is an echo of what I was just saying to my right hon. and learned Friend. This is particularly the case given the uncertainty about the way in which principles could develop or about the circumstances in which they would apply after exit. It would make no sense to bind ourselves to such an imprecise, open-ended and uncertain set of principles—it does not mitigate legal uncertainty, but increases it. It makes no sense, once we are no longer an EU member state, to bind ourselves to a set of principles that are the EU’s judge-made constitutional principles, when we have our own constitutional and common-law principles. Such an approach risks duplication and confusion.

Perhaps more fundamentally, outside the context of EU law, the ability for courts to disapply primary legislation is just inconsistent with the way our constitution works and the balance of powers that has to exist between the legislative and judicial branches.

--- Later in debate ---

[Mr Grieve]

Will my hon. and learned Friend give way?

[The Solicitor General]

No, I will not give way, as I need to develop my point.

For example, in 2015, in their legal challenges to the domestic legislation standardising the packaging of tobacco products, the tobacco companies reserved their right to claim Francovich damages should they succeed on the substance of their claims against the Government. I make this point because any suggestion that removing the Francovich procedure reduces access to justice for the average citizen is not reflected in the UK experience.

[Mr Grieve]

I am very grateful to my hon. and learned Friend. I understand everything that he is saying. He knows what I have said about Francovich damages and their disappearance being inevitable, but the point about the transition is key. I have to say to him that it is not a comfortable argument for a Law Officer of the Crown to make to suggest that just one person, or one business, being deprived of a legal right is an acceptable circumstance, because it plainly is not.

[The Solicitor General]

I did not say that. If that was the impression that was created, I am afraid that my right hon. and learned Friend is mistaken. What I am talking about is trying to balance out and put into context the use of this particular procedure, which needs to be done because we have not heard the other side of the argument. That is what I am seeking to do.

By contrast, all existing domestic law routes of challenge and remedies for breaches of retained EU law will remain undisturbed. For example, this provision does not affect any specific statutory rights to claim damages in respect of breaches of retained EU law—such as under the Public Contracts Regulations 2015—or the case law which applies to the interpretation of any such provisions. Nor does it affect the right to challenge the decisions of public bodies by way of judicial review. Claimants will also still be able to seek remedies through the law of tort, by establishing negligence or by a breach of statutory duty, and they will also still be able to make a claim for restitution for unlawfully levied tax or charges.

The existing right to Francovich damages is linked to EU membership and the obligations that we have as a member state to the EU at an international level. There is clearly a difference between substantive EU law, which is being kept by the Bill to prevent legal uncertainty, and the supranational procedural rules, principles and frameworks that will no longer be appropriate once we have left the EU.

Let me turn briefly to amendments 139 and 302, which take a slightly different approach. They would maintain the right to Francovich damages in domestic law, but only in relation to pre-exit causes of action. Amendment 335 would similarly maintain the right to Francovich damages in domestic law for causes of action occurring during any transitional period. The Bill sets out elsewhere—at paragraph 27 of schedule 8—that the exclusion of the right to Francovich damages would apply only in relation to claims that are brought after exit day.

I would like to assure my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan), and indeed all Members, that we will consider further whether any additional specific and more detailed transitional arrangements should be set out in regulations.

[Mr Grieve]

I am delighted to hear the Solicitor General say that. As he will appreciate, the point is a very simple one: it must be the case that the damages are available if the action takes place before exit day. It is a very basic principle of law and quite easy to correct.

[The Solicitor General]

Perhaps I can forgive my right hon. and learned Friend his eagerness to hear the remarks that I was going to make. I am sure that when this debate finishes he and I will continue the dialogue that we have had for some time about these matters.

It would not be right to maintain, in general, such an open-ended right to this form of damages after exit for any and all potential pre-exit causes of action. I am concerned that we would end up with an almost indefinite trail of cases. That is not good for certainty, and it is not good for the transition we want to make.

European Union (Withdrawal) Bill

Debate between Robert Buckland and Dominic Grieve

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

[Mr Kenneth Clarke]

Will my hon. and learned Friend give way?

[Mr Grieve]

Will my hon. and learned Friend give way?

[The Solicitor General]

May I make progress? I would be grateful, as I need to make progress on the amendments. I think I have been more than generous in giving way. I will move on to try to ensure that I deal with all the points that have been raised.

May I deal first with health and safety legislation? There has been a lot of proper debate about that. The way existing powers are used—the way the UK meets its obligations to implement EU law—is most typically through regulations that are made under the 1972 Act, but regulations are also made under a range of other Acts for these purposes, sometimes in conjunction with the 1972 Act powers and sometimes not. For example, some health and safety regulations are made using the Health and Safety at Work etc. Act 1974 and the 1972 Act where the 1974 Act alone cannot provide the vires, or powers, for those regulations.

One example is the Control of Major Accident Hazards Regulations 2015. They are made for the purposes of health and safety and of environmental protection, the latter being outside the vires of the 1974 Act. Those regulations prevent and mitigate the effects of major accidents involving dangerous substances, which can cause serious damage and harm to the public and to the environment. The parts of the regulations made under the 1974 Act can continue to be updated after exit under existing powers conferred by that legislation.

As I have set out, clause 2 rightly takes a maximalist approach to preserving direct legislation. It sets it out that any domestic legislation that implements EU obligations or is otherwise related to the EU or the EEA will continue to have effect after our exit. The effect is that those regulations will therefore become retained EU law within the meaning given in the Bill. So it is absolutely right that after we have left the European Union, domestic powers granted by Parliament in other Acts can operate on what will become retained EU law, and as such will be our domestic law. This is so that appropriate changes can be made in future, in line with any domestic policy, where they are within the scope of those powers and the will of this place.

In contrast, the amendments would fetter powers across the statute book that Parliament has already delegated. Relying only on powers set out in this Bill to amend retained EU law would be insufficient and would defeat the purpose of what Parliament has previously set up in the 1974 Act, for example, and other Acts. As I have set out, these powers are in many cases very important and help to deliver functioning regimes. Each of them also contains its own limitations. Those limitations were agreed by Parliament when it agreed to create the powers in question.

--- Later in debate ---

[The Solicitor General]

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

[Mr Grieve]

I have been listening carefully to what my hon. and learned Friend has been saying. Again, there seems to be an overlap. There are issues about how Parliament conducts scrutiny, as my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) has mentioned. That is also covered in proposed new subsection (3) of my new clause 55. There is also the question about modifications to some areas of retained EU law taking place in any way other than by primary legislation, in the longer term. Keeping those two points in mind, may I invite him to go away and see, as the discussion continues, what the Government can come up with by way of a package involving those two elements that might commend itself to the House, bearing in mind the undertaking that he has given to look at this afresh on Report and for the Government to respond positively on Report to what has been said?

[The Solicitor General]

Yes, I am happy to do that. That is very much in the spirit what I have already said.