European Union (Withdrawal Agreement) Bill

Robert Neill Excerpts

Committee stage & Committee: 2nd sitting: House of Commons & Committee: 2nd sitting
Wednesday 8th January 2020 Commons Chamber

[The Chairman of Ways and Means (Sir Roger Gale)]

Order. For clarification, and as the hon. and learned Lady indicated, although a considerable number of amendments and new clauses have been grouped for debate under this group, only the lead amendment at this stage is moved, so the Question is that amendment 38 be made. It gives me pleasure to call, for what will be his maiden speech in his capacity as a knight of the realm, Sir Robert Neill.

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

Thank you very much indeed, Sir Roger. It is a pleasure to see you in the Chair and to follow the hon. and learned Member for Edinburgh South West (Joanna Cherry). I do not share her political analysis, but I do have sympathy with some of the legal points she raises, which I will address.

I will start with the interpretation of retained EU law, which raises an important issue. As the hon. and learned Lady has said, concerns have been raised by many lawyers, regardless of their political views. I speak as someone who supported the Bill’s Second Reading, who will support it on Report and on Third Reading, and who stood on a manifesto commitment to implement the Bill. The lawyer in me, however, says that it is particularly important that we get this detail right. That is why I hope I can press Ministers for a little more detail and explanation as to why they have chosen a particular course to achieve their objectives.

I accept that there will be circumstances in which it will be necessary for courts to depart from EU law once we have left the European Union. I have no problem at all with that. I am concerned, however, that the Government’s chosen formulation for clause 26 has the potential to upset the well-established hierarchy and system of binding precedent that has characterised English common law and, to a greater or lesser degree, that of the other jurisdictions of the United Kingdom. The system of binding precedent is important because we have always regarded it as a benchmark of English law that gives certainty, in that lower courts cannot depart from the decisions of higher courts. That has served us well for centuries and is not something from which we should lightly depart.

It is going to be important for the future, too. If we are to advance Britain’s position as an international legal centre and an international financial and business centre—as I hope and am confident we will—certainty of law is important. I am a little concerned, however, that, without more explanation, the Government might risk getting to a stage where—inadvertently, I have no doubt, and perhaps for the sake of speed—they may undermine that valuable asset. That would have perhaps two consequences, which I will touch on.

Judgments made over the years by the European Court of Justice have been embedded in domestic judgments of our courts, including those of the Supreme Court. It seems odd that power should be given to a lower court to, on the face of it, depart from a Supreme Court judgment interpreting the European law as it then was. On the face of it, and without more explanation, that seems to me to upset the doctrine of binding precedent and risks driving a coach and horses through a fundamental part of our system. That is not something we should undertake lightly. Will the Minister explain the rationale behind it and precisely how the Government will go about it? Why is it necessary?

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

I am alive to my hon. Friend’s concerns—indeed, I share them—but does not clause 26 provide protection by giving the Minister the power to make regulations that will have to go through this House? That is a statutory intervention, albeit not an Act of Parliament. It is by the will of this House that those intrusions would be made.

[Sir Robert Neill]

I say to my right hon. Friend: yes, up to a point, Lord Copper. Although it may be by the will of the House, I urge the Committee to be cautious in going down such a route, which profoundly changes the centuries-old approach to English common law. Secondly —this is a point that I will make in a moment—there is an issue with the way in which we scrutinise regulations that the Committee may be asked to make. That relates to clause 18, to which I will return briefly. It is about getting those two bits right.

I am conscious that elsewhere in the legislation, there is an obligation upon Ministers to consult the senior judiciary when making some of those regulations. I welcome that important safeguard—it must be a very full consideration. With every respect to my right hon. Friend the Member for New Forest West (Sir Desmond Swayne), I do not think that we have a complete answer as yet. In particular, we need an explanation about the departure from the position as it was in the European Union (Withdrawal) Bill. As the hon. and learned Member for Edinburgh South West alluded to, there is a concern that we run the risk of an increase in judicial review were there a deficiency or uncertainty in the way in which we deal with those matters.

I hope the Minister will confirm that, as well as the commitment to consult the judiciary, there will be very wide and early consultation under the provisions of clause 26. That should obviously include the senior judiciary throughout the UK, but I hope it will also take on board the broader concerns of legal practitioners to find the right formula. For example, it could include experts like those who serve on the Law Society’s Brexit law committee—that is fundamental to the workings of our financial services—and who work for other such organisations. By pressing the Minister in this way, I seek to make sure that we get that right.

That brings me to my second and final point, which relates to clause 18 and the way in which we consider delegated legislation. I note that the hon. and learned Member for Edinburgh South West hinted that amendment 39 is a probing amendment, and I am glad of that. I have some sympathy with it, but I accept that the Minister might want to reconsider, between now and the passage of the Bill through the other place, how best to deal with the issue. On the face of it, it is surprising to substitute an objective test with a subjective one when dealing with matters of such importance.

[Sir William Cash (Stone) (Con)]

When dealing with issues of interpretation of European law in the context of our own previous methods of judicial interpretation, those of us who are familiar with Maxwell as compared to Craies know what the differences are. Does my hon. Friend believe that we should be moving towards the stare decisis system—in other words, a system based on precedent—rather than to purposive interpretation, which is the basis on which European law currently operates? Professor Richard Ekins of Oxford University and others are very conscious of that. He has written a very interesting paper.

[Sir Robert Neill]

It is indeed a very interesting paper. Having been brought up as a common lawyer myself, my preference is inevitably to move towards a stare decisis approach. I think that that is something that we all wish to move back to as we reconstruct our statute book and legal texts thereafter. My hon. Friend and I will be entirely in accord on that.

The question is really about the route that we choose to get there and ensuring that we have proper scrutiny of that route, because any deficiencies in regulations would likely result in a judicial review. That is another irony: I am sure that the Government would not want greater risk of judicial review of their actions than is absolutely necessary. It would be a funny Government who made work for lawyers in relation to judicial review. That might be interesting for some of us, but I am sure that it is not something that the Government wish to do. However, without more explanation as to why we are going down that route, that is the risk.

First, I suggest to the Minister that he should seriously consider whether we move to a “necessary” as opposed to “appropriate” test—an objective test—which is much more likely to withstand challenge in the courts, because it is more likely to be readily evidenced and, I would have thought therefore, to the Government’s advantage. If the Government get their ducks in a row early when making regulations and have evidence to back the objective test, they are much more likely to withstand legal challenge.

Secondly, the Government would be much less likely to face challenges and we would get better scrutiny if we moved—certainly for the majority of policy considerations —to using the affirmative rather than the negative procedure. That would perhaps be a fair balance in the House. We will not necessarily be able to do primary legislation for all of our withdrawal, because there is too much of it. Sensible use of secondary legislation, to remove references to the European Union or something of that kind, can of course be done by the negative procedure. When policy considerations are involved, however, the use of the affirmative procedure would be consistent with the Government’s objective of bringing back control to the House, and with the movement towards our traditional UK approach to legal matters. I hope that the Minister will say something about that when he responds.

[Thangam Debbonaire (Bristol West) (Lab)]

It is a pleasure to see you in the Chair, Sir Roger, and I look forward to serving under your guidance. It is also a pleasure to follow the hon. Member for Bromley and Chislehurst (Sir Robert Neill), who has given the Treasury Bench much to think about on the difference between subjective and objective tests, which I will bear in mind in my remarks.

I rise to speak to the official Oppositions’s amendments in this group. Amendment 1 relates to full transparency on the implications of the Northern Ireland-Ireland protocol. Amendment 4 would restore the clauses from the previous version of the Bill that related to negotiating arrangements for the protection of unaccompanied child refugees. New clause 1 would restore to the Bill the process of parliamentary scrutiny—it has been removed since the previous version of the Bill—over the process and outcome of negotiating the future relationship with the EU after we leave. I am sure that you will tell me if I stray from the topic of debate, Sir Roger.

The Opposition have tabled amendment 1 because the Government appear to be incapable of clarity about the implications of the Ireland-Northern Ireland protocol on the people of Northern Ireland and Great Britain, their jobs, their businesses and their way of life. That is too important to leave to chance. The people of Northern Ireland, and the people of the whole United Kingdom, need and deserve the transparency and accountability that the amendment proposes.

This part of the withdrawal agreement and the Bill have to be considered in the light of the historical context. The Good Friday/Belfast agreement was an extraordinary moment in the history of these islands and an awe-inspiring achievement of the incoming Labour Government of 1997 and of the latter period of the Major Government. Nobody my age could have thought that we would see peace in Northern Ireland in our lifetimes. The change to our way of life and the benefits to the people of Northern Ireland were unimaginable before the agreement. The Good Friday/Belfast agreement brought in a new era of peace and reconciliation.

The people of Northern Ireland, as well as its politicians across political and other divides, deserve our respect and admiration for how they have built the peace, worked to build united communities and created a way of life that seemed impossible a quarter of a century ago. Surely, no politician of any affiliation would want to destabilise that achievement—I am sure that that includes the Minister, the hon. Member for Worcester (Mr Walker), who is nodding. I am sure he needs no reminding—I will remind him anyway—that the Government have a legal obligation to adhere to the terms of the Good Friday/Belfast agreement. That means no opt-outs, no wiggling and nothing other than solid, uncompromising adherence to and support for the spirit and the letter of the agreement, no matter how hard that may be. Too many people have sacrificed too much for peace for the Government to do otherwise.

These are no small matters, so it is troubling in the extreme that the Government do not seem to know their own mind or the implications of their own protocol. The consequences of a return to a hard border or divisions between Great Britain and Northern Ireland, the fears emerging for people in Northern Ireland and the problems for businesses across the UK are all serious matters—hence our amendment. Businesses in Northern Ireland have spoken with one voice and are rightly concerned about the potential impact of border checks on goods between Northern Ireland and Great Britain. So, too, are businesses across other parts of Great Britain. Any business that currently sends goods to Northern Ireland should not have to expect border checks within the UK.

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[Mr Walker]

I will come to the hon. Lady’s new clause shortly, so perhaps I can give way to her then.

[Sir Robert Neill]

Will the Minister give way?

[Mr Walker]

I will also come back to the issue raised by my hon. Friend.

As is standard in international agreements, the withdrawal agreement sets out procedures for dealing with disputes concerning compliance with the agreement. Amendment 24 would require parliamentary approval for the payment of any fines or penalties under the withdrawal agreement. The withdrawal agreement is a binding agreement that will place the UK under a legal obligation to make those payments. We have to be clear that we will honour our international legal obligations, and we therefore cannot accept any conditionality on payments.

I turn to amendments 38 and 46 in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry). It is essential that the powers in clauses 18 to 22 can be used to enable all appropriate measures required by the withdrawal agreement to be implemented by the end of 2020. Restricting the power in the manner proposed would limit the Government’s ability to implement the withdrawal agreement in the most sensible way. I remind the hon. and learned Lady that the use of “appropriate” in statute is not at all new. There are myriad examples elsewhere on the statute book of powers that use the term “appropriate” to describe the discretion available to Ministers when legislating. I remember well that we discussed the question of “appropriate” versus “necessary” many times during the passage of the European Union (Withdrawal) Act 2018, and Parliament accepted the use of the word “appropriate”. There is no persuasive reason why we should depart from that approach here.

[Mr Walker]

I obviously pay heed to those points when they are raised, but I am told that the term “appropriate” actually better allows us to take better steps to ensure that multiple options can be explored when the legal changes are complex and interact with numerous pieces of existing legislation; so there are other elements to take into account.

[Sir Robert Neill]

I have three points to make. First, perhaps the Minister could set out what those “better steps” are. Secondly, will he address the issue of consideration under the affirmative resolution procedure as opposed to the negative resolution procedure, which might put some of my concerns to rest? Thirdly, before he finishes, will he tell us why we moved from the formulation of the Supreme Court in clause 26 to the lower courts?

[Mr Walker]

I will absolutely come back to my hon. Friend on the latter point. There are a number of places in the Bill where it is very clear that there will be active consideration by the Commons of the secondary legislation. That is an important part of the parliamentary scrutiny process.

I turn to amendment 10 in the name of the hon. Member for Central Ayrshire (Dr Whitford). It would inhibit our ability to implement part 3 of the withdrawal agreement and the protocol, particularly with regard to the ability to legislate for the consent mechanism and the provision of unfettered access. However, I reassure the Committee—this picks up from the point made by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill)—that any amendment to primary legislation through clauses 18 to 21 would have to be actively approved by votes of Parliament.

European Union (Withdrawal Agreement) Bill

Robert Neill Excerpts

Consideration of Lords amendments & Ping Pong: House of Commons & Ping Pong
Wednesday 22nd January 2020 Commons Chamber

[Steve Barclay]

I shall make a little progress before taking further interventions.

I turn to their lordships’ amendments 2 and 3, on the interpretation of retained European Union law. Amendment 2, tabled by Lord Beith, would remove the power to set which courts may diverge from retained Court of Justice of the European Union case law, and how. Amendment 3, tabled by Lord Mackay, would insert a mechanism whereby any court thinking that CJEU case law should be departed from may ask the Supreme Court to decide.

The other place has one of the greatest concentrations of legal talent in the world, and it is only right that the Government’s intentions on such a sensitive matter should be examined by their lordships, and that challenging alternatives should be proposed. The Bill ensures that time is built in to allow consultation of the senior judiciary in all jurisdictions. It is worth repeating what my noble Friends Lords Callanan and Keen said: we will, of course, also consult the devolved Administrations.

In proposing amendment 3, the noble and learned Lord Mackay has made an interesting proposal, but the Government cannot accept this recreation of the CJEU’s preliminary reference procedure.

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

As a fellow lawyer, my right hon. Friend will know the importance of the doctrine of binding precedence—stare decisis—to our common law system. That was what the amendments sought to deal with.

Anyone looking at the Lords Hansard will see that we were clearly close to a compromise with Lord Mackay, in which the necessary scheme to disapply EU law would be dealt with not necessarily by the Supreme Court but by courts of appellate jurisdiction. If we do not accept this amendment as it currently stands, will the Government try again to find a compromise when the matter goes back to the Lords? This is a fundamental principle on which we ought to be able to find agreement.

[Steve Barclay]

My hon. Friend speaks with authority and constructively about how the issue could be addressed. Let me reassure him that the Government do intend to consider and consult rigorously to ensure that CJEU case law is properly domesticated after the end of the implementation period.

Let me set out to the House, especially hon. and learned Members, that the power in clause 26 is sunset until the end of the year—the point at which courts will start interpreting retained EU law. Any change to the rules of interpretation will come in time for litigants and the courts. We will ensure that there is legal clarity at all times on the rules of interpretation.