Legal Advice: Prorogation

Stephen Doughty Excerpts

Wednesday 25th September 2019 Commons Chamber

[The Attorney General]

I am grateful to my hon. Friend for the question. I cannot disclose what advice I gave. The hon. and learned Member for Edinburgh South West, who first asked this urgent question, had that answer, and I am afraid I am going to have to keep giving it today. However, what I would say is that the Supreme Court did indeed, as it overtly and explicitly said, develop the law. It took what was a political convention—hitherto, in all the constitutional textbooks, described as unenforceable by a court—and decided that it would set a test and convert it into a legal principle and legal test. It was perfectly entitled to do that, just as this House will, in the coming months and years, have to reflect on the implications and on whether it is content to leave that position untouched. However, for the moment, that is the law, and the law must be obeyed.

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

Can the Attorney General be very clear? Were the director of legislative affairs, Nikki da Costa, and the Cabinet Secretary, or indeed any other advisers, including in the office of the Leader of the House, asked to make sworn statements in these cases? Did they refuse to do so, and, if so, why?

[The Attorney General]

I simply cannot comment on matters that pertain to the internal preparation of cases, which are covered by legal professional privilege. It is simply not reasonable to ask people to do so, particularly when it relates to individuals. The hon. Gentleman should make no assumptions one way or the other from what I am saying. The fact is that cases are covered by privilege, and that must be respected.

Section 1 of the European Union (Withdrawal) Act 2019

Stephen Doughty Excerpts

Tuesday 9th April 2019 Commons Chamber

[The Solicitor General]

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

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

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

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[Yvette Cooper]

I think that there is a problem with the way in which everyone has been approaching the debate. Like my hon. Friend, I think that a no-deal Brexit would be deeply damaging to our constituents, but I also think that the continual attempts to suggest that there are betrayals and conspiracies make it harder for people to come together and reach a sensible and sustainable outcome.

One of the reasons we are in this situation is that there has been no attempt to build a consensus since the referendum. That is why I argued for a cross-party commission at the very beginning of this process, and for a process that would bring together leave and remain voters to try to work out the best way forward. Frankly, if we do not do that, nothing lasts. If everyone thinks only about winning in the short term and getting what they want straightaway, rather than about how we can build consensus for what is effectively a constitutional change, even if they win in the short term it will not last and whatever we get will end up unravelling.

[Stephen Doughty]

My right hon. Friend knows that I completely support her proposal for such a commission—indeed, that may still be necessary, whatever conclusion we reach. Does she agree that the danger for our European partners of lurching from one cliff-edge deadline to another is bad news for the negotiations overall? The longer flextension that has been proposed would be very sensible for the whole negotiations, on both sides.

[Yvette Cooper]

The idea of a flextension is a very interesting proposal. As I understand it, it would allow us to conclude the article 50 process at any point, if agreement is reached but, equally, we could take longer if we needed to. I hope that the Prime Minister will seriously consider that approach, because one of the reasons we are now in this situation is the focus on the date, whether 29 March or 12 April, and it is a situation of her making. None of those dates was in the original referendum in 2016; they are dates that she created. It reminds me of the debate we had on the Government’s net migration target. The Prime Minister chose to make the net migration target a big focus, even though everybody knew that she had no plan to deliver it. However, that focus on the target ended up creating more anger, more confusion and a greater sense of betrayal. It is my fear now that again, in suggesting that it will be a betrayal if everything is not solved by a particular date, the Government and particularly the Prime Minister have made it harder for us to reach consensus. They have created more alarm and anger across the country instead of adopting a practical focus on the way forward.

The proof of that is the fact that we are here again without having reached agreement. The Prime Minister has tried to focus minds by using brinkmanship and creating dates and deadlines, but it simply has not worked. That is why we have to try to do this in a different way. We have to try to bring people together. We now have a process of indicative votes and cross-party talks—which, to be honest, should have started some time ago—but we also have to recognise that we do not have the same consensual political and parliamentary traditions that other European countries have been able to draw upon. I understand that, from the other member states’ point of view, we can look very adversarial. We are having to do something that we have no tradition of doing in this House, but I hope that our attempts to do it now will be effective and will lead to a conclusion. I certainly hope that the cross-party working that we have managed to achieve to get this Bill in place and to get this motion to go forward will be an indicator that it is possible for us to draw on more consensual traditions when it comes to this kind of constitutional change.

United Kingdom’s Withdrawal from the European Union

Stephen Doughty Excerpts

Friday 29th March 2019 Commons Chamber

[The Attorney General]

Precisely: we are where we are. I intend not to review how and why we have arrived at this point, but to explain the motion that the Government have placed before the House.

On 21 March, the Council agreed a decision that if the withdrawal agreement is approved, we have a legal right as a country to an extension to 22 May 2019. If this withdrawal agreement is not approved, that extension will expire on 11 April. That means that any other extension that this House might desire to be agreed by the Union would be at its discretion, subject to the veto of 27 leaders. Therefore, by this evening, if the 11 o’clock deadline expires and the agreement has not been approved, that legal right will expire with it.

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

Will the Attorney General give way?

[The Attorney General]

I will in a moment, but not now.

This is, therefore, the last opportunity to take advantage of our legal right. The Government have taken the view that it would have been wrong to allow that time and date to expire without giving this House the opportunity to consider whether it should avail itself of the legal right or whether it should move into a position where any further extension will be at the discretion of the 27 leaders.

[Stephen Doughty]

Will the Attorney General give way on that point?

[The Attorney General]

I am not taking interventions at the moment; I will in due course. [Interruption.] I do not intend to take long. I want to set out clearly the choice before the House today.

The minimum necessary in order to secure this right, which is ours as a matter of law, is that the withdrawal agreement is approved. All negotiated exits from the European Union will require this withdrawal agreement to have been approved. The Union has made it abundantly clear, and the decision—

[Stephen Doughty]

On a point of order, Mr Speaker.

[Mr Speaker]

I hope this is a genuine point of order.

[Stephen Doughty]

The Attorney General refused to accept my intervention, Mr Speaker. I believe that he may be inadvertently misleading us. He spoke very importantly about the date, the significance of today and the importance of the deadline this evening. However, I know that the Government approached those of us working on the indicative votes process asking us whether we would reschedule our indicative votes business for today. If that is the case, why is there this significance? Surely the Attorney General is misleading us about the significance of holding the vote today.

[Mr Speaker]

I am grateful to the hon. Gentleman, but that does not require adjudication by the Chair. The Attorney General will have heard the point of order and it is open to him to respond to it or not, as he thinks fit.

Withdrawal Agreement: Legal Opinion

Stephen Doughty Excerpts

1st reading: House of Commons
Tuesday 12th March 2019 Commons Chamber

[The Attorney General]

As my right hon. Friend knows, if the parties, using best endeavours, in complete sincerity with co-operation and good faith, are simply unable to agree anything, not even a few alternative arrangements or a partial agreement—the subsequent agreement referred to in the protocol can of course be a stand-alone agreement—the UK has no unilateral exit right to leave, unless there were a fundamental change of circumstance under article 62 of the Vienna convention on the law of treaties. My right hon Friend knows that, but the question is: is it likely? What this deal has now done is place the burden on the EU to negotiate those alternative arrangements, as a result of his work, in part. I say to him that he should trust in himself, trust in the British people and trust in our ability to deliver a good deal. We can use the new contexts in this agreement, and I believe we will secure a good deal for the Northern Irish border.

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

I thank the Attorney General for his candour and for sticking to his integrity in the advice he has provided, which very much lines up with Lord Anderson’s advice that the backstop may accordingly “endure indefinitely”. Lord Anderson also says that the interpretive declaration is not a

“clearly worded, legally binding, ‘treaty-level’ clause which unambiguously”

overrides the text. The Attorney General has said repeatedly throughout this process that this is about politics, not law, so will he tell us whether at any point over the weekend he offered the Prime Minister preliminary advice that she would not be getting the advice she wanted for the politics of today?

[The Attorney General]

The hon. Gentleman will forgive me for saying that I am afraid I am not permitted by the Law Officers’ convention to say whether I gave advice or what advice that would be.

European Union (Withdrawal) Act

Stephen Doughty Excerpts

Tuesday 15th January 2019 Commons Chamber

[The Attorney General]

I must move on, because the next thing I must deal with is the alternatives.

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

What about giving way to a woman?

[The Attorney General]

I will give way to my right hon. Friend the Member for Broxtowe (Anna Soubry), but first I need to make some progress.

Orderly exit from the European Union would always require a withdrawal agreement along these lines. No alternative option now being canvassed in the House would not require the withdrawal agreement and now the backstop. Let us be clear: whatever solution may be fashioned if this motion and deal are defeated, this withdrawal agreement will have to return in much the same form and with much the same content. Therefore, there is no serious or credible objection that has been advanced by any party to the withdrawal agreement.

It was said last week by the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) that we should have negotiated a full customs union with a say within the political declaration and then there would have been no need for a backstop, because the agreement could then have been concluded within the transition period. However, he knows, and it is clear, that the European Union is unwilling to and regards itself as bound by its own law not to enter into detailed negotiations on the permanent relationship treaties. The EU was never going to do it, and its own negotiating guidelines said it would not, so there was always going to be this withdrawal agreement, a political declaration setting out a framework and months, if not years, thereafter of detailed negotiation on any final resting place that any political declaration might have.

--- Later in debate ---

[The Attorney General]

I respectfully suggest to my right hon. Friend that that is because the expectations of the withdrawal agreement have been far too unrealistic. [Interruption.] This is a serious issue, and I ask for the indulgence of the House in making what I hope is a serious point, although I have to give way to the hon. Member for Leeds West (Rachel Reeves). If the House does not accept the point, that is fine, but let me at least make it.

The withdrawal agreement and a backstop are the first and necessary precondition of any solution. Members on the Opposition Benches have real concerns about the content of the political declaration and the safeguarding of rights. I listened to Members speak last night about the enshrinement of environmental rights and environmental laws and so on, but the political declaration would never have been able to secure detailed, legally binding text on those matters, which will be discussed and negotiated in the next stage of negotiation. It makes no sense to reject the opportunity of order and certainty now because Members are unhappy that they do not have guarantees about what will be in a future treaty.

What will be in that treaty, governed by the parameters set out by the political declaration that I need to come to in a moment, will be negotiated over the next 21 months. This Government have made a pledge to the House that we will take fully the opinion of the House in all the departmental areas over which the negotiations will take place.

[Stephen Doughty]

On a point of order, Mr Speaker.

[Mr Speaker]

I hope it is a point of order and not a point of frustration. I await it with bated breath.

[Stephen Doughty]

It is a point of inquiry, Mr Speaker. You will be aware that the Attorney General has now spoken for 49 minutes. I understand that a substantial number of colleagues wish to speak today. Can you tell us how many colleagues are waiting to speak and the approximate time people will get?

[Mr Speaker]

The hon. Gentleman is, as always, trying to be helpful, although it was really a point of frustration. The fact is, as I have previously advised the House, that no fewer than 71 hon. and right hon. Members are seeking to catch my eye. There are notable constraints to which I do not wish to add, but of which I feel sure the Attorney General will take account.

--- Later in debate ---

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

It is an absolute pleasure to follow the right hon. and learned Member for Beaconsfield (Mr Grieve). I agreed wholeheartedly with the vast majority of his remarks.

I am in the House first and foremost as a representative of my constituents, the people of Cardiff South and Penarth. Their views are absolutely clear: they voted to remain in 2016 and that view has increased in intensity. I have received nearly 2,000 messages—in emails, phone calls and conversations—and 86% of them now tell me that my constituents want to stay in the EU. The vast majority of them want to see the question put back to them so that they can make the choice. Of those who still want to leave, there is a split between those who want to support the Prime Minister’s deal and those who want to leave with no deal. There is no consensus on what leaving even means.

Let me be clear to everybody in the House: the people who voted leave did so in good faith. They are my friends, my family, my constituents and my neighbours. Indeed, I have very strong and good relationships with many people across the House who fundamentally disagree with me on Brexit. We must listen to their concerns and we must hear them. Those concerns were made loud and clear, and we have to respond to them. We have to offer hope and a positive vision for the future, but I will not vote for a deal that will, by all measures and on all analysis, leave my constituents poorer and less safe, and actually lead to more uncertainty, not less, with this process going on and on and on. It is simply not acceptable when we are told by leading manufacturing organisations, trade unions and businesses about the jobs that are being lost or put at risk, and the livelihoods that are put at risk as a result.

I wholeheartedly support the Labour Front-Bench policy of opposing the deal. It is absolutely clear that it does not meet the six tests that the Labour party set out. I, of course, want a general election. I would like this Government to be removed, for many reasons, but it is clear that we are unlikely to reach that objective, so we must try hard. We would like a no-confidence motion to be tabled if the Prime Minister loses tonight, but if we are not able to resolve this matter in the House, we must put it back to the people.

I do not think that there is a majority in this House for other variations of the deal. I do not think, as a previous proponent of it in this House, that there is a majority for the Norway option. I also do not think that there is now time to engage in fantasy negotiations with the EU. It was very, very clear from the beginning what the possibilities were and the constraints that were put on those possibilities by the Prime Minister’s red lines. A problem exposed by many people—the failure to reach out across the House to find consensus at the start of the process—has led us to the situation we are in today.

I want to address two particular concerns that the Prime Minister and others have raised against those of us who advocate putting the issue back to the people. The first is that it is somehow anti-democratic. No, it is not. It is a continuation of democracy. I understand very much why the Prime Minister feels that she is duty bound to deliver on a result that happened in 2016, but what about the will of the people today? As the right hon. and learned Member for Beaconsfield said, if there was clear consent among the people of this country—among my constituents and all the constituents represented in this House—we would not face the situation we are in today with the Prime Minister facing defeat from every angle and our needing to find a new way forward.

Secondly, I hear the concern that this will stir up far right or right-wing rhetoric, violence on the streets and civil disturbances. We simply must not indulge that terrible, terrible attitude. Those people do not represent leave voters. We must not give into them. Our colleague who was murdered would not have given into them; she would have stood up against them. That is what we all must be doing in this House. I see this as part of a much wider challenge that worries me deeply. We have talked much about the economic and business implications of the deal, but when the people rubbing their hands in glee at this chaos are Vladimir Putin, Donald Trump and the enemies of this country, we all ought to be asking ourselves some very serious questions.

Winston Churchill was quoted earlier by the hon. Member for Stone (Sir William Cash). I would like to draw the House’s attention to another quote by Winston Churchill, from the early 1930s. He warned about ignoring the warnings of our followers in the country and ignoring the signs of the times, saying:

“This was one of those awful periods which recur in our history, when the noble British nation seems to fall from its high estate, loses all trace of sense and purpose, and appears to cower…frothing pious platitudes”.

I think, Mr Speaker, of “global Britain” and “Brexit means Brexit”.

We are all patriots in this House. Let us find a way forward. Let us put this issue back to the people and let them decide.

[Several hon. Members rose—]

European Union (Withdrawal) Bill

Stephen Doughty Excerpts

Wednesday 13th June 2018 Commons Chamber

[The Solicitor General]

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

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

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

[The Solicitor General]

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

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

Leaving the EU: Scotland and Wales Continuity Bills

Stephen Doughty Excerpts

Wednesday 18th April 2018 Commons Chamber

[Mr Speaker]

Order. I advise the House that I am looking to move on no later than 2.10 pm, so some people might not get in, particularly if other people contribute in such a way that prevents them from doing so.

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

This is a shambolic mess entirely of the Government’s making. They could have accepted amendments in this place or tabled amendments in the other place, but they did not. They could have attempted to find consensus on a cross-party basis, but they did not.

The Attorney General mischaracterised what the Presiding Officer of the Welsh Assembly said. She said that the Bill was within the Assembly’s competence. Even UKIP Assembly Members voted for it—Neil Hamilton said that it did not in any way block the Brexit process.

[The Attorney General]

No, I did not mischaracterise what the Presiding Officer of the Welsh Assembly said. Although the hon. Gentleman is right that she concluded that the Bill was within competence—I did not deny that—I made it clear that she said that there were arguments in both directions. The point that we have made about the references is that, where there is lack of clarity and serious questions about whether a Bill or part of it is within competence, the devolved settlement makes it clear that it is for the Supreme Court to resolve the matter. That will now happen. I hope that the hon. Gentleman accepts that we are not attempting to undermine the devolved settlements but to ensure that they are operating as intended.

European Union (Withdrawal) Bill

Stephen Doughty Excerpts

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

[Mr Leslie]

My hon. Friend is absolutely right. That right of protection for freedoms and liberties on the grounds of sexual orientation is enshrined in the charter of fundamental rights. One of the examples given was civil partnerships where in the future pension rights might be divided but at the time when the partnerships took place certain UK laws were not in place; the charter provides protections against discrimination in a way that existing UK law does not.

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

My hon. Friend is making a strong point and I strongly support what he is saying and Labour Front-Bench amendment 4. I accept that many Conservative Members would strongly defend the rights in the charter and other provisions we have agreed to, but does my hon. Friend agree that the public have reason to be deeply suspicious, because they hear many Conservative Members talk about a race to the bottom in regulation, particularly in employment rights, and about wanting to scrap the Human Rights Act and pull us out of the European convention on human rights? That is why keeping such rights is so crucial.

[Mr Leslie]

That is right, and my hon. Friend will also remember that, before becoming Secretary of State, the right hon. Member for Haltemprice and Howden (Mr Davis) cited many of the rights in the charter in his own legal case against the then Home Secretary, who is now the Prime Minister. The right hon. Gentleman took a case against her and cited many of the provisions in the charter; how strange it is that he now introduces a Bill that does not necessarily carry forward those provisions.

--- Later in debate ---

[Mr Leslie]

We do have high animal welfare standards. I do not deny that there could always be improvements, but I want to retain what our constituents want, which is high standards. By leaving the European Union in this particular way, I worry that we will be forcing ourselves to chase after trade deals with other jurisdictions that have a totally different approach to regulation. The world effectively has three regulatory philosophies: the Chinese have a particular view of regulation; the European Union has a precautionary principle; and the Americans have a different cost-benefit analysis view of the world. If we depart from the precautionary principle ambit, that will affect agriculture, animal rights and many other issues. It would lead to wholly different and lower regulatory standards, which in some ways is the backdrop to this whole question.

[Stephen Doughty]

rose—

[Mr Leslie]

I will take one last intervention, but then I must conclude.

[Mr Leslie]

No, I have to conclude.

[Stephen Doughty]

I thank my hon. Friend for giving way; he is being very generous. Does he recognise that people are suspicious given that, for example, the new Under-Secretary of State for Exiting the European Union, the hon. Member for Fareham (Suella Fernandes), who has just joined us in the Chamber, said that the Government were right not to copy the charter of fundamental rights into UK law because lawyers will love the extra rights that it gives? That shows the real intention behind what some Ministers want, which is to bring down the rights that have protected so many people and workers, the environment, and safety.

[Mr Leslie]

I congratulate the hon. Member for Fareham (Suella Fernandes) on her appointment, but I am very much looking forward to her speech, which will perhaps wind up one of the sections of this debate, because Parliament will want to scrutinise her views, past and present. I will conclude with that because I have taken up more than half an hour and other Members will want to contribute.

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[Mr Grieve]

Yes, 110%; I agree entirely with those sentiments, and the remark I made earlier about it not being a one-way street in the way it is supposed to operate does not in any way detract from what Adam Tomkins had to say, and for that reason I continue to look to my right hon. and hon. Friends on the Treasury Bench to sort this out, and I share the regret that what should have been done in this House is clearly going to come back for consideration in this House at ping-pong. That is not very satisfactory, and I gently make the point at this stage, as I am confident that there will be the necessary amendments in the Lords, that when the Bill comes back from the Lords there must be sufficient time for us to consider it in detail, because ping-pong often has remarkably little time for detailed consideration of measures. I hope very much that we can get an assurance that, in view of the important constitutional nature of this legislation, we should get that.

I said earlier that I had been rather disappointed by the Government response to a matter I raised in Committee and that we debated earlier this afternoon, but that having been said, we debated the extraordinarily broad nature of the powers conferred on the Executive in respect of clause 7 and I am pleased at the way the Government have responded to the representations I made and the amendments I tabled. In amendment 14, it is rather nice to see the Government echoing the very words that I drafted when this matter was in Committee. I have no doubt that, as drafted, the Government amendments produce a significant safeguard on the way in which the powers can be used. They do that in two ways: first, by introducing an ejusdem generis clause, which refers to something of the same nature. In referring to the deficiencies listed, they state that if there are any others, they must be of the same nature as those in the list. The second protection that is now being provided is that, if the Government wish to add to the list of deficiencies, they are going to have to do it by an affirmative resolution of this House.

I entirely accept that this does not go as far as what I was seeking to achieve when I tabled my original amendments, which was to tie the Government down rather more. However, the Government certainly made a perfectly reasonable case in the discussions that I had with them. I think that that might exhibit a certain amount of neurosis on their part—neurosis is very common, as I know from my time in government—that they might have missed something that they ought to have put into the list. The fact that they are willing to come to the House and get an affirmative order to do this provides me with considerable reassurance that this power will now be used in the manner in which it was intended.

Having said all those good things, it is worth pointing out that this and many of the other power grabs in the Bill are quite startling in their scope. It is, however, to the Government’s credit that they have been willing to listen on this. Their amendments amount to a considerable improvement, particularly when associated with the other safeguards that we have been offered in respect of triage and scrutiny. I should therefore like to express my gratitude to the Secretary of State and to the Bill team, who have suffered my presence on probably more occasions than they might have wished in discussing how this might be taken forward. This is exactly what I came into this House to do, and it is always rather nice to be able to achieve something—and, furthermore, to achieve it without having to divide the House, as that is always the weapon of last resort for the Government Back Bencher.

With that, I come back to the point at which I started. The test of this legislation will be whether, after enactment, it is seen to be working fairly when it comes into operation. I have no idea when it will come into operation. I suspect that that is still a very long time off, but that is a product of the folly of the course of action on which we are embarked. All that we can do is to try to moderate it as much as possible.

[Stephen Doughty]

I should like to speak to amendment 5, a cross-party amendment tabled in my name and those of other hon. Members. I should also like to indicate my strong support for the Opposition Front-Bench amendment 3. In principle, I also support many of the other amendments in this group, although not, I am sorry to say, the Government amendments, which do not go far enough towards addressing the concerns that have legitimately been raised by the devolved Administrations in particular. It is always a pleasure to follow the right hon. and learned Member for Beaconsfield (Mr Grieve), who has made some excellent points, as has my colleague and friend, my hon. Friend the Member for Cardiff North (Anna McMorrin), who shares many of my deep concerns about this part of the legislation, which have not been addressed.

I hesitate to raise this point, but it is odd that we are discussing devolution and Brexit in this, the most important piece of legislation to face the United Kingdom and the devolved nations since the second world war, without the Secretaries of State for Scotland, Wales and Northern Ireland being present in the Chamber with us. I cannot see any of their junior Ministers here either. Perhaps they all have other important business to undertake. That seems rather remiss of them, given that we are considering such serious matters. I raised a point of order with you about this the other day, Mr Speaker, as did other Members. Much of the concern about this part of the Bill relates to promises and assurances that were given by the Secretary of State for Scotland, yet he is not here to account for himself. I have a great deal of respect for him, but these are serious issues that have been raised in good faith, and Ministers should be here to hear our concerns, and those of the devolved Administrations, if we are truly supposed to be bringing the United Kingdom closer together—as the Prime Minister claims to want to do—rather than pushing it apart.

[Mr Jenkin]

I count 10 Ministers on the Treasury Bench, so it is a little churlish to say that the Government are somehow under-represented when I can see only four members of the Opposition Front-Bench team. I think that says it all. This Government are listening hard to what the hon. Gentleman is saying even though he is being rather tedious.

[Stephen Doughty]

I do not normally respond negatively to the hon. Gentleman, but he fundamentally misunderstands my point. I did not say that Ministers were not here and listening; they clearly are. I can see the Minister for Africa, a Health Minister, the Skills Minister, Brexit Ministers and the Leader of the House, but where are the representatives of the Departments that are supposed to be doing the frontline discussions with the devolved Administrations? They are not here. [Interruption.] The hon. Member for Norwich North (Chloe Smith), a former Northern Ireland Minister, is also here, but I think she moved in the reshuffle. [Interruption.] She might be at the Cabinet Office—that is wonderful to hear—but where are the relevant Ministers? They should be listening, because what is the point of their being in their roles if they are not taking part in debates such as this?

Moving on, we had a lengthy and technical debate in Committee, and I do not want to repeat all the detailed arguments; I intend to focus on the principles that are stake. Fundamentally, this is about respect. The hon. Member for Harwich and North Essex (Mr Jenkin) spoke about trust, and it is also about trust. It is about respect for Wales, Scotland and Northern Ireland and for democracy in a wider sense, because the powers that the legislatures of Wales, Scotland and Northern Ireland now have are the result of several referendums, several elections, detailed debates and consideration, and a great number of Acts. This is about respect for the devolution settlement and, ultimately, for the Union. I made an election promise to stand up for Wales alongside many of my Welsh Labour colleagues, and I wanted to raise our concerns today because they are so serious.

I have not re-tabled all the amendments that were tabled in Committee, because we have limited ability to consider them at this stage, but I live in hope that the new Cabinet Office Minister and the Government will work to address many of the concerns. However, I have no doubt that Members of the other place, where we have ex-First Ministers, distinguished former Ministers and Members who have served in devolved Administrations, will look carefully at the detailed concerns that were raised in Committee, at statements from the Scottish and Welsh Governments about the deficiencies in the Bill as it stands, and at the Government’s failure to address the issues, even in the limited set of amendments that they have tabled for consideration on Report.

I share the serious concerns about clause 11 and the lack of UK-wide frameworks and mechanisms to address many things, which reflects the wider complexity in this endeavour that we are rolling ahead with. We heard about Anguilla earlier on, and who would have thought that that would be a concern? There is so much detail in the complexity of the integration of our relationship with the European Union that the Government simply have not given enough it attention. Whether someone voted leave or remain, trying to address some of the issues is only in the country’s interests.

The White Paper of March 2017 claimed that there would be a significant increase in the decision-making power of the devolved Administrations and that former EU frameworks would be subject to decisions by democratically elected representatives of the United Kingdom. That clearly is not the case with this Bill as it stands. We have heard that there are 111 powers, but we are supposed to just take it on trust that all of them will transfer when the UK Government have repeatedly attempted to undermine the devolved Administrations. I raised that during the passage of the Trade Union Act 2016 and when discussing the Agricultural Workers Board. There is a litany of examples of when things end up in the Supreme Court or in complex disagreements, instead of being addressed in the first place.

The Secretary of State for Scotland suggested that amendments would be made at this stage, but we have not seen them. They have obviously become caught up in some shenanigans that were partly dealt with in the reshuffle. The situation is greatly disappointing, not least because the amendments that were drafted by the Welsh and Scottish Governments that were tabled as cross-party amendments by me and many other hon. Members were proposed in good faith. They were not about stopping Brexit or trying to wreck the Bill; they were serious, well meant and well intentioned and tried to address the serious concerns about the provisions in the Bill. Indeed, we know those concerns are shared by many Conservative Members. It is a shame that the hon. Member for East Renfrewshire (Paul Masterton) has left his place, but he said in Committee that

“clause 11, as drafted, is not fit for purpose and must be changed. It does not need to be tweaked a little; it needs to be amended and replaced with a new version.”—[Official Report, 4 December 2017; Vol. 632, c. 731.]

[Chris Elmore (Ogmore) (Lab)]

The Secretary of State for Scotland said that these things would come back on Report. That has not happened, and now the Government are saying that it will go to the Lords. Of course, technically, the Government cannot guarantee any votes in the Lords because they do not have a majority, so this is another area where there is an element of failed trust; they simply do not have the numbers, even if they stack the Lords with a pile of the Prime Minister’s friends.

[Stephen Doughty]

Indeed, and it is a great concern that we have not had a proper chance to discuss the issue in this place. Given some of the constraining efforts by Government Whips and others at previous stages of this Bill, we will no doubt have constraints at ping-pong, when we consider the amendments made by the Lords. I want these issues to be substantially addressed.

[Ian Murray (Edinburgh South) (Lab)]

Would it not be an act of good faith for the Government to accept amendment 3 today, and then to amend that amendment in the Lords?

[Stephen Doughty]

Amendment 3 is sensible, well meant and well thought through, and it enjoys substantial support. If the Government just accepted the amendment and moved forward, it would show good faith and we could try to resolve these issues.

As my hon. Friend the Member for Cardiff North said, this Bill will not proceed with the consent of the Scottish Government, the Scottish Parliament, the Welsh Government or the Welsh Assembly without substantial and urgent changes over the next few weeks, or indeed today before the Bill reaches the other place. That is well understood by people across the EU who are watching this process—indeed, I raised it on the visit to Brussels yesterday.

[Stephen Kerr]

The hon. Gentleman is making a good point about the legislative consent motion and the requirements that need to be in place for it to happen. The Labour amendment would not bring that about. There needs to be an agreement between the UK Government and the devolved Administrations. Without that agreement, it is impossible to replace clause 11 satisfactorily to secure that LCM.

[Stephen Doughty]

The bottom line is that these concerns have been raised for months. They were raised by the Welsh and Scottish Governments right at the start, when the Bill was published. The UK Government have had plenty of time to resolve things, which is why there is such deep distrust and suspicion about their intent. Until they come up with something that actually addresses the concerns, we will continue to raise the issue.

[Several hon. Members rose—]

[Stephen Doughty]

I will happily take more interventions in a moment, but I want to make a little more progress.

My hon. Friend the Member for Cardiff North also briefly referred to this, but it is important that we hear exactly what the First Minister of Wales, Carwyn Jones, said in his statement today:

“The Bill as it currently stands represents a fundamental assault on devolution. It would replace current constraints on the National Assembly’s legislative competence, which will fall away…with a new set of constraints in devolved competences that would be controlled by the UK Government. We have consistently said there is no prospect of the Welsh Government recommending consent to the EU Withdrawal Bill as it is currently drafted… It is a matter of considerable regret that the Government has not, despite the undertaking of the Secretary of State for Scotland, introduced any amendment to Clause 11 which, as it stands, is wholly unacceptable to us.”

He went on to say that he is deeply concerned about the Government’s failure to accept some of the reasonable amendments tabled on a cross-party basis in Committee, and he made it clear that there will be consequences.

The hon. Member for Arfon (Hywel Williams) spoke about a continuity Bill, and the First Minister made it clear today that, over the past eight months, the Welsh Government have been developing a continuity Bill that can be deployed if it becomes clear that it will not be possible to amend the EU (Withdrawal) Bill to ensure it properly reflects the devolution settlement. If amendments are not made, the Welsh Government will submit that continuity Bill to the Presiding Officer of the Welsh Assembly.

The First Minister could not be clearer, and I share his deep frustration, disappointment and concern that, despite all the warm words at different stages of the Bill—perhaps we will see a rapid turnaround from the new Minister for the Cabinet Office—these issues have not been addressed. We could have been debating the finer points today and moving on from this issue if we had ensured that we kept the constitutional framework in place.

[Luke Graham]

Does the hon. Gentleman recognise that negotiations are two-sided? He talks about the agreement of the Welsh Assembly and the Scottish Parliament, so can he guarantee that if this House were to adopt the Labour amendment, the LCM would be passed in both of those?

[Stephen Doughty]

I think the Government should accept the series of amendments we have tabled. I am communicating the concerns of the Welsh Government and the Welsh people—indeed, of many who want to respect and maintain the devolution settlement as it is. The hon. Gentleman is asking this question now, but these amendments were put down months ago and these issues have been raised.

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

This is exclusively the responsibility of the UK Government. They introduced the repeal Bill, designed clause 11 and acknowledged that there are issues for both the Welsh Assembly and the Scottish Parliament, so it is up to them to fix it. Does the hon. Gentleman agree that this attempt to share blame with Scotland and Wales, as if somehow we are semi-responsible for this impasse, is totally disingenuous?

[Stephen Doughty]

The hon. Gentleman makes an important point.

[Anna McMorrin]

Does my hon. Friend agree that this Front-Bench amendment was written alongside and in co-operation with the Welsh Government, which means they will accept what this amendment says? [Hon. Members: “The LCM?”] Yes.

[Stephen Doughty]

The series of issues we have raised concerns about for months has been clearly set out. These issues have been raised since the Bill was drafted. We are in the absurd situation where the Secretary of State for Scotland admits there are deficiencies in the Bill and many Conservative Members agree with that. I have no doubt that the Minister for the Cabinet Office agrees with it, although I doubt he will say so today. We all recognise there are deficiencies with it, so the question is: why have they not been resolved before we reached this stage? We were hearing a lot from the Scottish Conservative Members, whose position seemed to be somewhat different from that of their counterparts in the Scottish Parliament. The Welsh Conservatives claimed today that they are disappointed; the whole of Wales will be disappointed by their failure to stand up for Wales and their own legislature, in which they sit.

As I said, I do not want to go back into all the technical detail, so I finally wish to come to the nub of this issue: why does all this matter? Why do these issues matter? Why do these technical debates about the constitutional settlement matter? They matter because they have consequences for our Union, for the devolution settlement and for the economic operation of the markets within this United Kingdom. We are already going to be struggling to deal with the serious consequences we will face if we carry on along the Government’s hard Brexit path of, for example, leaving the customs union and the single market, with which I do not agree. Do we really want to add to that a series of complexities, challenges and problems within our own internal markets, logistics and functioning?

There are serious consequences for relationships that we know are already under strain and the subject of lively political debate in the UK. There are also economic consequences of Brexit as a whole for the devolved nations. Just this week, University of Birmingham research showed that the nations and regions of the UK are very exposed economically, with 11.7% of Welsh GDP being exposed. As I said, there are serious consequences to leaving the single market and customs union. We heard yesterday from one of Wales’s largest employers, Airbus—I draw attention to my declaration of interests—which employs a number of people in the defence and space industry next door to my constituency and many people across Wales. Its chief executive, Tom Enders, said that the “wreckage” of Trump will be easier to repair than that of Brexit, given the increased costs and the challenges for competitiveness.

The Welsh people, the Welsh Government and the Welsh Assembly need to have a proper say in where we go on this process, given the implications. As the consequences become clearer, the Welsh people, and indeed the British people, have the right to change their minds on this entire process.

[Stephen Kerr]

Thank you for allowing me to say a few words in this setting, Mr Speaker. I wish to make it clear that, despite whatever else I may say in this speech, I support this Bill wholeheartedly and I wish it to be a success. Uppermost in my mind when considering the Bill are the ramifications of there not being a Bill. I think about the choice the British people made to leave the EU and I respect it. We made a commitment to act on that instruction and act on it we shall—we will honour that vote. Those who choose to disregard the vote of the British people must answer to the British people. My constituency voted to remain in the EU, but I know that my constituents are democrats who expect me, as their elected Member of Parliament, to ensure that their best interests are served in the light of the outcome and that the result is upheld. Many businesses and individuals in my Stirling constituency are ready to make the best of Brexit.

European Union (Withdrawal) Bill

Stephen Doughty Excerpts

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

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

My hon. Friend is making some very important points. I, too, support new clause 58 and the provisions in new clauses 55 and 25. New clause 58 makes a clear point about the protection of equality rights. In the light of the wonderful news that came overnight from Australia about marriage equality, does he agree that it is crucial that we send out a signal to the LGBT+ community in the United Kingdom that we respect their rights and will retain them?

[Matthew Pennycook]

I could not agree more. That is exactly what new clause 58 would do; it would provide enhanced protection for equality, rights and protections after we have left the EU.

Taken at face value, clauses 2 to 4 appear relatively straightforward. But, as many hon. Members who spoke in yesterday’s debate made clear, the Bill as drafted creates a considerable degree of ambiguity and uncertainty as to the status of retained EU law. Currently the status of rights, protections and standards underpinned by EU law is distinct.

Treaty provisions and regulations that take effect through section 2(1) of the ECA are neither primary nor secondary legislation. The principle of the supremacy of EU law and the ECA means that, in practice, they have a particular constitutional status that enables them to take priority over primary legislation enacted by Parliament. Similarly, secondary legislation made under section 2(2) of the ECA is distinct from other secondary legislation in that it could take priority over primary legislation because of the fact that it is giving effect to an EU law obligation. Primary legislation that gives effect to an EU law obligation could be amended by Parliament, but any removal of an underlying EU law could be challenged in the courts.

Post-exit, it is unclear what status—primary, secondary or something else entirely—retained EU law will have. From schedule 1, one might draw the inference that retained EU law has the characteristics of secondary, rather than primary, legislation. Yet paragraph 19 of schedule 8 provides that, for the purposes of the Human Rights Act 1998, direct EU legislation

“is to be treated as primary legislation”,

although this schedule does not cover those rights recognised and made available in domestic law after exit by means of clause 4.

Clauses 5 and 6 provide guidance as to how the courts should interpret retained EU law in the event of a conflict with an enactment passed after exit day, but it is not yet clear—as we debated at length yesterday—whether the courts will treat particular retained EU laws as constitutional legislation that is not susceptible to implied repeal.

The uncertainty that surrounds the status and interpretation of retained EU law is a real weakness of the legislation and it is crucial that it is clarified and addressed on the face of the Bill. But, irrespective of what status particular retained EU laws are eventually accorded, this new category of law—detached from the enhanced protection enjoyed as a result of being underwritten by our membership of the EU—will be vulnerable to amendment not just from the delegated powers contained in this Bill, but from subordinate legislation contained in other Acts of Parliament.

--- Later in debate ---

[The Solicitor General]

In a nutshell, I would say that the right hon. Gentleman’s amendment and those associated with it are indeed unnecessary. I will set that out in more detail when I come on to address his point and those made by the hon. Member for Greenwich and Woolwich (Matthew Pennycook), who spoke to the amendments very helpfully, if I may say so with respect.

[Stephen Doughty]

The hon. and learned Gentleman knows that I respect him. If we take him and what he is saying at face value, I do not think he has a lot to fear from new clause 55, new clause 25 or the other measures being proposed as they would simply secure what he is saying. However, does he understand why many of us have suspicions when we hear speeches about a low-regulation economy from Members such as the hon. Member for North East Somerset (Mr Rees-Mogg) that are then retweeted by the Department for International Trade? That is where these deep worries are coming from.

[The Solicitor General]

I absolutely understand the concerns of hon. Members on both sides of the Committee. The Government’s policy is clear, and I shall address in further detail where the Government stand on those amendments.

--- Later in debate ---

[Stephen Doughty]

On an important point of clarification, my hon. Friend has made an incredibly strong speech. Citizens have only to go through the border and see EU and EEA as separate things on border signs to know the importance of the argument that she is making. Like me, would she like to see this measure put to the House at the appropriate time in the Bill, depending on the argument that we hear from the Government and others?

[Heidi Alexander]

My hon. Friend has issued a very timely reminder to me. If it were possible, I would like that to happen.

--- Later in debate ---

[Madam Deputy Speaker (Mrs Eleanor Laing)]

I thank the hon. Gentleman for raising that matter but, as he is well aware, it is not a point on which the Chair can rule as a point of order. He is clearly seeking a way of bringing the issue to the attention of the House and he has succeeded in so doing. He is well aware that, if he wants to bring a Minister to the Dispatch Box, there are correct procedures whereby he can attempt so to do.

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

On a point of order, Madam Deputy Speaker. You may be aware that very important elections have taken place in Somaliland in recent days, towards which the UK has provided important support. But it has come to my attention that the Prime Minister, when answering a question in Prime Minister’s questions earlier, interchangeably used the words Somaliland and Somalia. Obviously, they are not one and the same, and I wondered how I might be able to encourage the Prime Minister just to be clear on the matter. It is of great concern to Somalilanders, and we should be celebrating the election.

[Madam Deputy Speaker (Mrs Eleanor Laing)]

I appreciate that the hon. Gentleman wishes to bring this matter to the attention of the House. It is not a point of order for the Chair, but I am quite sure that Members on the Treasury Bench have heard him.

Oral Answers to Questions

Stephen Doughty Excerpts

Thursday 29th June 2017 Commons Chamber

[Karen Bradley]

My hon. Friend makes a very important point, and I am sure it will have been heard by those he refers to.

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

5. What discussions she has had with the BBC on its plans for future investment in the nations and regions.

[The Secretary of State for Culture, Media and Sport (Karen Bradley)]

I regularly engage with the BBC on a range of issues, including its plans to serve audiences in the nations and regions. I am confident that the BBC is committed to supporting the creative economies in each nation.

[Stephen Doughty]

The Secretary of State will be well aware of how proud I am that Cardiff South and Penarth is home to the Tardis, Torchwood, Cwmderi, Holby City’s A&E department, and so many others. We have had fantastic investment from the BBC in both the city centre and my constituency. Does she agree, however, that there needs to be more focus on ensuring that jobs and opportunities go to local people, particularly those living in deprived communities around those industries? We need to be getting everybody into the creative industries, which are a way of growing our economy.

[Karen Bradley]

The hon. Gentleman is absolutely right. The creative industry is one of our great strengths in this country. It can bring high-quality, high-value jobs to the nations and regions. As I said in answer to the previous question, I met the director-general and the chair of the BBC on Monday to discuss exactly that point.