European Union (Withdrawal Agreement) Bill

Debate between Robert Buckland and Oliver Letwin

2nd reading: House of Commons & Programme motion: House of Commons
Tuesday 22nd October 2019 Commons Chamber

[Robert Buckland]

The hon. Gentleman, who has been here a good few years, has lived, like all of us, through this process, and the hours, the days, the months and the years that we have debated this issue amply demonstrate that every one of the 650 Members—or those who are able to take part—have had their say.

The elements of the withdrawal agreement that have been significant and different relate of course to the provisions on Northern Ireland and the future relationship, but we would be kidding ourselves if we did not admit that large elements of this agreement were elements that we have known about, we have debated and we have aired and analysed over the last few months—more than the last few months, the better part of a year.

[Sir Oliver Letwin (West Dorset) (Ind)]

Before my right hon. and learned Friend goes into the detail, will he agree that we do not have to love this deal and we do not have to love the programme motion—we might even think it is a very bad deal or a very bad programme motion—but for those of us who wish to avoid the worst, it is better than the worst?

[Robert Buckland]

My right hon. Friend, in his nuanced way, makes the important point that in the pursuit of perfection we are in danger of losing the entire House. The majority of us in this Chamber have made it clear that the one thing we do not want is a no-deal Brexit. Through all the debates we have had and all the decisions we have made, that one thing has been clear.

European Union (Withdrawal) Bill

Debate between Robert Buckland and Oliver Letwin

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

[The Solicitor General]

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

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

[Sir Oliver Letwin]

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

[The Solicitor General]

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

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

European Union (Withdrawal) Bill

Debate between Robert Buckland and Oliver Letwin

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

[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.

[Sir Oliver Letwin]

I am grateful to my hon. and learned Friend, who has just said some of the words that many of us hoped to hear, which is that Government amendments to that effect will come forward on Report. Will that include an appropriate amendment to paragraph 3(1) on the private rights of action?

[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).

European Union (Withdrawal) Bill

Debate between Robert Buckland and Oliver Letwin

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

[The Solicitor General]

With respect to the hon. Lady, I do not agree with her analysis. We will carry out more detailed scrutiny of clause 5 and schedule 1 at a later stage, but I reassure her that clauses 2 and 3 will create certainty which, as I have said, is vital.

We drafted clause 2 in a deliberate way. We have drawn it more widely than to cover just domestic legislation created under the 1972 Act as it will also apply to any other domestic primary or secondary legislation that implements EU obligations. It will apply to any related domestic legislation, any domestic legislation relating to law that will be retained under clauses 3 and 4, and indeed any domestic legislation that is otherwise related to the EU or the European economic area. That ensures that all that legislation will form a part of what we define as retained EU law.

We have done that for two reasons. First, it means that this legislation, where relevant, will be interpreted in the light of pre-exit case law—the case law of the Court of Justice of the European Union—and the general principles of EU law, which are provided for in clause 6. That is vital to ensure not only that we save the legislation, but that we provide for it to operate in precisely the same way as it did before, which will prevent legal uncertainty about how such provisions should be interpreted.

Secondly, our approach ensures that to the extent that deficiencies might arise in any legislation as a result of exit, they can be corrected under powers in the Bill. Saving the domestic legislation under this clause will therefore reduce the risk of uncertainty and increase continuity as to the law that applies in the UK. It will also mean that we avoid the famous cliff edge that many hon. Members are worried about when we leave the EU.

[Sir Oliver Letwin]

I do not want to pursue further the questions about clause 6—we will talk about them anon, and we talked about them yesterday—but while very many of us have no objection to anything my hon. and learned Friend says about the way in which existing law will be incorporated under clauses 2 and 3, does he accept that the issues raised by Members on both sides of the Committee are about the mechanisms by which the Bill seeks to achieve what he describes as correcting deficiencies, but could also be used to do much more than that? Does he therefore accept that the only thing we are currently debating is the mechanism to ensure that more than correcting deficiencies is not done by the technical means of statutory instruments under the negative procedure?

--- Later in debate ---

[The Solicitor General]

I am sorry, but I need to make progress. I want to deal with the proposals tabled by hon. Members, including the Opposition spokesman.

I will say a little about how we will deal with converted law, which was raised by my right hon. and learned Friend the Member for Beaconsfield. Converted law will become domestic legislation. It will not automatically have the status of either primary or secondary legislation. Indeed, as has already been referenced, paragraph 19 of schedule 8 sets this out:

“For the purposes of the Human Rights Act 1998, any retained direct EU legislation is to be treated as primary legislation”.

We all know—including the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), the shadow Secretary of State—about the consequences in terms of incompatibility, the power of the courts and what the House can do to rectify legislation. I think that is an enhancement. It is a welcome initiative and I know the right hon. and learned Gentleman shares my view about that.

Where there are existing pre-exit powers to make subordinate legislation, which is capable of amending retained direct EU legislation such as converted regulations, the converted legislation is to be treated as secondary legislation for the purposes of scrutiny procedures under those pre-exit powers. In other words, we might bring something down to this place and transpose it. We used to use the term “gold plating”, but it has somewhat gone out of fashion now, and I think the Government improved their processes over the years. However, there have been powers to vary, and, in effect, that will be treated as secondary legislation—no change, really, because the House already had those powers with regard to scrutiny.

It follows, then, that where there are not pre-exit powers to make subordinate legislation, we will look case by case at the converted law and determine how it is to be treated. This is the point that has been made by my right hon. and learned Friend the Member for Beaconsfield and others: how are we to determine what is what? As I have said, I am keen to ensure that all concerns are properly listened to, and that when we come to further amendments on further days, the Government give full consideration to how to create that mechanism and in what form the House, and indeed the other place, would like it to be administered.

[Sir Oliver Letwin]

My hon. and learned Friend may be saying what I had hoped he was going to say. May I ask him to be a little more specific? Does he mean that, in due course and in their own time, the Government will come forward with—if I might put it this way—a triage amendment that settles a process for distinguishing between technical deficiency amendments and substantive amendments, and the way in which either is treated?

[The Solicitor General]

We are going to continue the dialogue, listening extremely carefully. Indeed, there might be a form of words that we can agree on that satisfies this place. Let us not forget that primary legislation is not the only way we can create this mechanism. There are Standing Order provisions of the House that the House jealously protects and preserves, and the Government are mindful of the need not to trespass on the exclusive cognisance of the House.

European Union (Withdrawal) Bill

Debate between Robert Buckland and Oliver Letwin

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

[The Solicitor General]

I am listening with great care to my right hon. Friend. Is not the simple answer that the Supreme Court will apply the rules of precedent in accordance with its practice direction of 50 years ago, which allows it to depart from previous case authority where it appears right to do so? Principles have been set out in domestic law by the Supreme Court and its predecessor, the judicial committee of the House of Lords.

[Sir Oliver Letwin]

With great respect to the Solicitor General, I draw him back to clause 6(3)(a), which directs the lower court in such a case to continue to apply the retained case law on the basis of ECJ jurisprudence, not Supreme Court jurisprudence. If that is not what the Government intend, they need to redraft clause 6(3)(a). They can have it one way or the other, but we cannot in this country have a legal system that tells our courts to do two different things. That is why the former judges are causing a harouche here. They are not being told what we, as a Parliament, are expecting of them.

[The Solicitor General]

What we are seeking to do is, in effect, settle the status of retained EU case law so that it is equivalent to that of Supreme Court authority. That is the explanation of the hierarchy that my right hon. Friend has, very fairly, outlined.

[Sir Oliver Letwin]

If the Solicitor General is trying to argue that he is aiming for equality between the jurisprudence of the European Court of Justice and the jurisprudence of the Supreme Court, that poses an insoluble problem for the lower court. One has to trump the other, but if the Bill is trying to make out that one trumps the other, it does not do it. It is really quite important for a human being who speaks English and reads the Bill to be able to see which trumps which.