European Union (Withdrawal) Bill

Steve Baker Excerpts

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

[The Chairman]

Before I call the Minister, I inform the Committee that he is not feeling well today and, for the sake of clarification, another Minister will come along later.

[The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Steve Baker)]

I am extremely grateful to you, Mr Hoyle. I very much hope that my voice makes it through these remarks.

I rise to support clause 1 stand part and to speak to Government amendments 381, 382 and 383. It may help the House and members of the public if I say that the decisions on those amendments will be taken on days seven and eight.

Clause 1 reads:

“The European Communities Act 1972 is repealed on exit day.”

It is a simple clause, but it could scarcely be more significant. In repealing the European Communities Act 1972, the clause will be a historic step in delivering our exit from the European Union, in accordance with last year’s referendum. I hope that all people on all sides of this issue can agree that the repeal of the Act is a necessary step as we leave the European Union.

[Sir William Cash]

Does my hon. Friend recall that the official Opposition voted against the Bill on Second Reading and therefore the repeal of the 1972 Act? They still claim that this Bill is not fit for purpose and that it usurps parliamentary sovereignty, when in fact it does exactly the opposite.

[Mr Baker]

I am very grateful to my hon. Friend and I look forward to seeing whether Opposition Members support clause 1 stand part.

If we were not to repeal the European Communities Act, we would still, from the perspective of EU law, exit the European Union at the end of the article 50 process, but there would be confusion and uncertainty about the law on our own statute book. For example, it would be unclear whether UK or EU law would take precedence if there was a conflict between them. The status of new EU law would also be unclear once the UK left the EU.

I intend first to set out briefly the effect of the European Communities Act on our legal system and the implications of its repeal. The UK is a “dualist” state, meaning that a treaty, even when ratified, does not alter our laws unless it is incorporated into domestic law by legislation. Parliament must pass legislation before the rights and obligations in a treaty have effect in our law. The European Communities Act gave EU law supremacy over UK law. Without it, EU law would not apply in the UK. The 1972 Act has two main provisions. Section 2(1) ensures rights and obligations in the EU treaties and regulations are directly applicable in the UK legal system. They apply directly without the need for Parliament to pass specific domestic implementing legislation. This bears repeating in the context of the clauses to follow.

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[Mr Baker]

I am very grateful to my right hon. Friend. He has perhaps anticipated my speech by a few paragraphs.

UK Ministers and Ministers in the devolved Administrations have made nearly 6,000 domestic regulations under section 2(2) on topics as disparate as air fares, public contracts and preserved sardines. The House, of course, has not remained supine in absorbing all this legislation. We have benefited from the tireless work of the European Scrutiny Committee, chaired so ably by my hon. Friend the Member for Stone (Sir William Cash). It has scrutinised a vast number of EU documents, supporting this House in holding Ministers to account when representing our interests in the EU. Its work has been of paramount importance in holding Ministers to account and maximising the voice of this House on EU matters. On occasions, deliberations in this House have influenced the laws adopted by the EU, but ultimately this House was, on every occasion, obliged to implement our EU obligations. We could not refuse new EU law because of our obligations to the EU.

[Mr Kenneth Clarke]

Does my hon. Friend accept that most of this legislation is proposed by the Commission, considered by the Council of Ministers, including a British Minister, and, nowadays, approved by the European Parliament before it becomes law? Can he name a significant European law or regulation that was opposed by the British Government at the time, which the Government are now proposing to repeal? Most Brexiteers cannot think of one.

[Mr Baker]

I am most grateful to my right hon. and learned Friend. I think the question at stake here is not whether there are legitimate processes in the EU; it is whether we approve of them. The one that I am always glad to bring to people’s attention is, of course, the ports regulation, which we will have to stick with all the while we are within the EU. It is perhaps unique in being opposed by the owners of ports, trade unions and, it seems, all parties involved with our strategic interests in ports. They are all opposed to that regulation. I very much look forward to the day that we can make our own decisions about how our flourishing private sector infrastructure works.

[Mr John Baron (Basildon and Billericay) (Con)]

Does my hon. Friend agree that those who accuse the Government of a power grab would be very happy for unelected EU officials to continue to exercise these powers, rather than an elected Government accountable to this elected Parliament?

[Mr Baker]

Indeed. I have often thought that the scenery of our constitution had remained in place throughout my lifetime, but not the practical effect the electors of this country expected it to have.

[Sir William Cash]

In response, vicariously to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), may I point out that most decisions taken by the Council of Ministers are effectively made by consensus behind closed doors, with no record of who said what, how the decision was arrived at, or, unlike this House, with no record of any of the proceedings either?

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[Mr Baker]

I am most grateful to my hon. Friend. I thoroughly recommend the report of his Committee relating to that subject.

I think what has been established in this sequence of interventions is that clause 1 could scarcely be of greater constitutional significance. It will repeal the 1972 Act on exit day, removing the mechanism that allows EU law to flow automatically into UK law, and remove one of the widest-ranging powers ever placed on the statute book of the United Kingdom. The repeal makes it clear and unarguable that sovereignty lies here in this Parliament.

[Helen Goodman (Bishop Auckland) (Lab)]

If the 1972 Act is repealed before the end of what Ministers call the implementation period but what I prefer to think of as the transition period, what will be the legal basis for our relations with the EU and our free trade agreements with the 57 third countries?

[Mr Baker]

I am happy that we have announced the withdrawal agreement and implementation Bill, which will follow in due course, to establish that legal basis, but for the moment I want to conclude this section of my remarks and move on to the amendments.

[Anna Soubry (Broxtowe) (Con)]

Will my hon. Friend give way?

[Mr Baker]

Not just now. [Hon. Members: “Ooh!] I have given way quite a few times. I am now going to make some progress and get on to the amendments.

How we exercise this restored power in the future will be a choice for this place. The Government are clear that we want a smooth and orderly exit, achieved through continuity in the law at the point of exit, as we shall discuss at later stages. For now, I hope that all Members can agree that it is essential that clause 1 stand part of the Bill.

I now turn to today’s amendments. It is fitting that the first amendment debated in Committee is from the right hon. Member for Birkenhead (Frank Field). He has got to the heart of the matter of when we leave the EU.

[Frank Field]

On our time.

[Mr Baker]

I will come to that point.

I listened carefully to the right hon. Gentleman’s speech, and I have great sympathy for the case he makes. I will just pick up on two points. First, on using our time, he has not of course given a time of day in his new clause. One thing I learned during my service in the Royal Air Force is the ambiguity that arises when one implies or deliberately specifies midnight, which of course can be taken as the beginning or end of a day. For that reason, his amendment is technically deficient. I hope that in due course he will choose not to press it to a Division, but will instead accept the Government’s set of amendments, including the consequentials.

[Frank Field]

I would love the Government to move an amendment specifying 23 hours and 59 minutes on the day we leave, but it should be on our time, not on others’ time or terms. Will they move that amendment to my new clause at a later stage?

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[Mr Baker]

I am most grateful to the right hon. Gentleman. He has made his case well, of course, but we will move the amendment that we have tabled.

[Wera Hobhouse (Bath) (LD)]

Will the Minister give way?

[Mr Baker]

I will give way once more, and then I will make some progress.

[Wera Hobhouse]

Does the Minister not agree that exactly this argument is creating division between us and our European neighbours, which will make it very difficult to create a deep and special partnership?

[Mr Baker]

I do not accept that at all. When the Prime Minister wrote to the President of the European Council in March, she set in train the defined two-year process of article 50, which, unless extended by unanimity, will conclude on 29 March 2019. That is why the Prime Minister said in her Florence speech that the UK would cease to be a member of the EU on that day. That is the Government’s policy.

[Several hon. Members rose—]

[Mr Baker]

As I said, I would like to make some progress.

The Government have, however, listened carefully to the debate about the setting of exit day for the statutory purposes of the Bill. There has been some uncertainty about whether the exit day appointed in the Bill would correspond to the day the UK leaves the EU at the end of the article 50 process. The Government sympathise with this uncertainty. This is also an issue on which the Lords Constitution Committee opined in its report in September. It stated:

“We are concerned that the power to define ‘exit day’—a matter that is pivotal to the operation of the Bill—is unduly broad in its scope and flexibility, and that it is not subject to any parliamentary scrutiny procedure.”

Such concerns were further voiced by the hon. Members for Feltham and Heston (Seema Malhotra), for Cardiff South and Penarth (Stephen Doughty) and for Wakefield (Mary Creagh) on Second Reading, not least regarding the breadth of the power potentially to set numerous exit days. In fact, there has been a notable disconnect, as we perhaps saw earlier, between Labour Front and Back Benchers on this issue. While several of its Back Benchers have submitted amendments and raised concerns about exit day, its Front-Bench team seem to have refused to acknowledge the need to establish clarity.

We would like to put this issue to rest. We recognise the importance of being crystal clear on the setting of exit day and are keen to provide the certainty that the right hon. Member for Birkenhead and others are seeking. In the light of this, the Government have tabled amendment 381 to clause 14, along with the consequential amendments 382 and 383, which will set exit day at 11 pm on 29 March 2019. Of course, this is slightly different to his amendment, in that it sets a time as well as a date for exit.

[Alison McGovern]

I am sorry that the Minister is not feeling well, but does he understand how impossible it is for me to explain to my constituents that they can have certainty about nothing in relation to Brexit as the Government plan it, except, according to him, the date when it will happen?

[Mr Baker]

I forget for the moment whether the hon. Lady voted for the triggering of article 50, but the House did trigger article 50, and the process is quite clear: two years after that, we leave the European Union.

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

I wonder whether the Minister is going to admit to the Committee that setting a date for exit is mere political window-dressing. The Prime Minister has told the House that if there is to be a transitional deal, which she wants, her understanding is that it will be under article 50. That means that we will be staying in the single market, staying in the customs union and subject to EU law during the transitional period, so this exit day is simply a sop to Back Benchers. When is the Minister going to tell them the truth?

[Mr Baker]

I will come to the implementation period in a moment, but one of the crucial points is that we need to become a third country in order to conclude our future relationship agreement. The Prime Minister set out in her Florence speech the outline of that implementation period, which would allow practical continuity under new arrangements that would enable us to be a third country and conclude the future relationship agreement.

[Several hon. Members rose—]

[Mr Baker]

I will give way just once more, to one of the Members behind me, and then I will make progress. I give way to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), my beloved neighbour.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I am most grateful to my hon. Friend. Does he recognise that there are two different issues relating to exit day? Some of the amendments were tabled to express the fear that there might be multiple exit dates. That is very different from fixing a day. Obviously, under article 50 there is an expiry date, but, as my hon. Friend knows, article 50 itself contains provision for a possible extension of the period if that is what is needed to conclude an agreement. That is why I find the Government’s amendment so strange. It seems to me to fetter the Government, to add nothing to the strength of their negotiating position, and, in fact, potentially to create a very great problem that could be visited on us at a later stage.

[Mr Baker]

My right hon. and learned Friend has made his point with considerable clarity. Of course I accept that the article 50 process involves certain provisions, but I should say to him that a number of learned voices in private expressed concern about the existence of a degree of elasticity in the sunsetting of the powers in the Bill, and, for that reason, were anxious for us to fix the exit date. I should also say to him that, while he made his point with his usual clarity, other Members expressed the view that we should put beyond doubt the time and the date when we leave the European Union, and that is what our amendment does.

[Several hon. Members rose—]

[Mr Baker]

I did say just a couple of minutes ago that I would give way only once more, but on this occasion I will give way to my hon. Friend the Member for Wellingborough (Mr Bone). Then I really will make a little more progress.

[Mr Peter Bone (Wellingborough) (Con)]

The Minister is making a very good speech, but what is not clear—and there is some media speculation about this—is whether, if amendment 381 is passed with the exit date confirmed as it is, the Bill allows that date to be changed subsequently by means of regulation.

[Mr Baker]

The answer to that is no. The point has been raised specifically in respect of the powers in clause 17, which relate to the consequences of the Bill’s enactment. I look forward very much to a full debate on those powers when we reach clause 17, but the short answer to my hon. Friend’s question is no.

[Several hon. Members rose—]

[Mr Baker]

I will get on with my speech now.

[Mr Grieve]

Will my hon. Friend give way on that very point?

[Mr Baker]

No. I did say to my right hon. and learned Friend, and the Committee, that I was going to get on with it. If I give way to him, I will not make the progress that I need to make.

We said on Second Reading that we would listen to the concerns of the House, and our amendment delivers on that promise. Ultimately, the Government want the Bill to provide as much certainty as possible, and we are happy to consider amendments that share that goal. I hope that in the light of this the right hon. Member for Birkenhead (Frank Field) will be willing to withdraw his new clause, and hon. and right hon. Members with related amendments will withdraw them, too.

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[Chuka Umunna (Streatham) (Lab)]

I am grateful to the Minister for being pretty frank with the Committee now, because if what he says is right, his Government’s set of amendments pave the way for no deal. If I am wrong about that, why did his predecessor, Lord Bridges of Headley, say that he did not believe it would be possible to sort out the divorce bill, the implementation period and the final deal on our withdrawal within the timeframe envisaged? What the Minister is planning for—he should be absolutely frank with the British people about this—is no deal, and he has no mandate from the British people to do that.

[Mr Baker]

I responded on this subject in a recent debate, and I refer the hon. Gentleman to everything I said on that occasion. He is wrong: we are planning to secure a deep and special partnership with the EU, and we intend to achieve that within the implementation period, which the Prime Minister described and set out in her Florence speech, and we look forward to passing the necessary legislation to do it.

[Several hon. Members rose—]

[Mr Baker]

I shall give way twice more and then conclude my remarks.

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

Is the Minister aware that the chief financial officer of Aston Martin has said that it would be a semi-catastrophe if the UK went for no deal? Also, why will the Minister not allow the option for article 50 to be extended, to ensure that there was a deal if we were very close to reaching one on the date he has set?

[Mr Baker]

As a responsible Government, we are going to go through the process of making sure that our country is ready to leave the EU without a deal if that proves necessary. We will take the steps to be prepared, as a responsible Government should.

However, this Bill cannot pre-empt the negotiations by putting things into statute before they have been agreed. The Government intend the UK to leave the EU on 29 March 2019, and that is why we intend to put that on the face of the Bill, but we have always been clear that we will bring forward whatever legislation is necessary to implement the agreement we strike with the EU, which is why yesterday my right hon. Friend the Secretary of State announced the Withdrawal Agreement and Implementation Bill, which we will introduce once Parliament has had a chance to vote on the final deal.

This Government take their responsibilities seriously and are committed to ensuring that the UK exits the EU with certainty, continuity and control. It makes no sense to legislate for one piece of legislation on the face of another, and I therefore ask the right hon. Member for Normanton, Pontefract and Castleford not to press her amendment to a vote. With that, I recommend that clause 1 stand part of the Bill.

[Paul Blomfield (Sheffield Central) (Lab)]

I am pleased to speak to amendments 43, 44 and 45, which would give Parliament control over the length and basic terms of the transitional arrangements and allow Parliament to set the clock on the sunset clauses. These are the first of many amendments tabled by the Opposition that we will consider over the next few weeks, all of which have one purpose, which is to improve the Bill. Frankly, it is not helpful when Ministers—and, indeed, the Prime Minister over the weekend—seek to characterise scrutiny and accountability in this House as an attempt to thwart Brexit. It is not. We accept that the British people voted to leave the European Union. It might have been a close vote, but it was a clear vote. That is why we voted to trigger article 50. Whether we leave the European Union is not a matter for debate, but how we do so is crucial for the future of our country. The British people voted to pull out, but they did not vote to lose out. They look to Parliament to secure the best deal, and that includes not stumbling over a cliff edge in March 2019.

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[Paul Blomfield]

I am happy to clarify that we oppose new clause 49.

Whether in relation to new clause 49 or to the Government’s amendments, closing down the opportunity for effective transitional arrangements is deeply self-harming.

[Mr Baker]

I believe that the Labour party wants to have a smooth transition to a good quality future relationship, but I draw to the hon. Gentleman’s attention what the Prime Minister said in her Florence speech:

“Neither is the European Union legally able to conclude an agreement with the UK as an external partner while it is itself still part of the European Union.”

My point is that we need to become a third country before we can conclude the kind of future relationship that I think the hon. Gentleman would like us to have.

[Paul Blomfield]

I do not disagree with the Minister. It is precisely our point that, during the transitional period, we cannot disable the role of the Court of Justice of the European Union, otherwise we will not achieve the arrangement that we apparently both seek.

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[Stephen Gethins]

The hon. Gentleman makes an excellent point, as he always does on these matters, even though he and I may not agree on much. Ruth Davidson and I do not often agree on much either, but she was right that we deserve the truth. This place deserves accountability over the promises that have been made. I wonder whether the Minister, who is in his place and who made those promises as part of Vote Leave, will address the question of what will happen about these promises. They were made to the people before they voted in a plebiscite, and he has some responsibility for that.

[Mr Baker]

rose—

[Wera Hobhouse]

rose—

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[Stephen Gethins]

The hon. Lady makes a good point. I will take an intervention from the Minister, since I mentioned him, and then I will make progress with my speech.

[Mr Baker]

I hope that the hon. Gentleman will read the report published by the Treasury Committee during the referendum campaign. The report, which has my name and that of my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) on it, calls into question the veracity of claims on both sides of the campaign.

[Stephen Gethins]

The Minister is trying to absolve himself of responsibility for spending on the health service. If only he had done that before the EU referendum. If only he had stopped people putting it on the side of a bus. It is extraordinary, because those Vote Leavers are Ministers now. They are in the posts that they wanted, and they need to take a bit of responsibility and deliver on their promises. If Labour get into government, Conservative Members will quite rightly expect them to deliver on their promises.