European Union (Withdrawal) Bill

Stuart C McDonald Excerpts

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

[Mrs Miller]

My hon. Friend has a great deal of experience in those matters, and I am sure that Ministers sitting on the Front Bench are looking at them very closely. They will be as aware as us that, as we leave the EU, the complexities, particularly regarding equalities, need careful attention. When Government Equalities Office Ministers came before the Women and Equalities Committee recently, I was pleased that they were prepared to discuss Brexit issues. I hope that in future Brexit Ministers will also come before the Committee to discuss the issues set out by my hon. Friend.

I thank my hon. Friend the Minister for taking the issue very seriously indeed. I know that he has a lot on his plate, but he has taken the time to look at the issue in detail. He should be applauded for that. I look forward to seeing the fruits of his labour on Report.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I want to speak briefly in support of amendment 137, tabled by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), who spoke so persuasively about the need to strengthen and clarify clause 6, particularly subsection (2).

If, utterly regrettably from my point of view, the UK is to leave the EU, it is important not only that there is a functioning statute book on exit day, but that it is as accessible and comprehensible as possible. The ordinary citizen must be able to understand their rights and obligations; businesses need to have clarity about the rules under which they will be trading and competing; and our courts require clear guidance about Parliament’s intentions. The rule of law and our economic interest require that. As it stands, however, there is still much work to do to achieve those aims, and that includes rectifying the lack of clarity in clause 6.

My starting point is clause 6(3), about which I do not think there is any dispute. Clearly, unmodified retained EU law should be interpreted in accordance with retained case law and principles of EU law. That is necessary to ensure that the statute book applies in the same way after exit as it did before. Immediately after that, however, we get into sticky territory, namely the status of post-exit European case law.

In the first months and years after exit, few cases in the CJEU will concern new EU rules that have nothing to do with the UK. Most will continue to relate to rules that existed before exit and that will in fact have been incorporated into the UK statute book by this Bill. In essence, such decisions by the CJEU are about how the law always was and should have been applied, including immediately prior to exit.

With apologies for moving away from highbrow discussions about the rule of law and the sovereignty of Parliament, I want to talk about the hypothetical EU widget regulations. If the EU widget regulations come into effect prior to exit, and a decision of the CJEU shortly after exit clarifies that the regulations do indeed apply to a new and cutting-edge form of six-sided widget, that decision would actually tell us and clarify what retained EU law was on Brexit day—the point at which it was incorporated into our laws. Yet the Bill appears to fudge or dodge the issue of whether such a ruling should be followed or even whether it should be given any consideration at all. Parliament is in danger of passing the buck to judges on what is actually a political decision.

Unlike his German counterpart, the UK manufacturer of a six-sided widget is unclear about where he stands and, importantly, so are our judges. Given that the widget directive is part of retained law, there is a strong argument that this Parliament should say that if the CJEU confirms in its judgement—despite it being handed down after exit—that when we incorporated the regulations they did apply to a six-sided widget, that should also be part of retained law in the United Kingdom, unless there is good reason to the contrary. That would seem sensible and desirable from a legal theory point of view and, much more importantly, from a practical point of view. If we are to make trade and competition with the EU as simple as possible, surely it makes sense for exactly the same rule, one still found in an EU regulation and one incorporated by the Bill into domestic law, to be interpreted in the same way unless there are very good reasons to the contrary. However, all clause 6(1) says is that a court or a tribunal is not bound by post-Brexit CJEU decisions, and clause 6(2) merely says it can “have regard to” such case law

“if it considers it appropriate to do so.”

Lord Neuberger says that that is not very helpful guidance for judges. Neither is it helpful for the six-sided widget manufacturer, who needs to know whether he must comply with the widget regulations and is not sure if domestic courts will follow the CJEU in deciding whether it does. Indeed, we might even find that courts in different parts of the United Kingdom could come to different decisions about whether to follow the CJEU’s decision on the widget regulations. Parliament has to do much better.

Amendment 137 provides alternative options. If there are reasons why domestic courts should not want to follow a CJEU ruling, the court could quite simply have regard to and then decline to follow the Court’s judgment. There could be very good reasons for that to happen, for example if Parliament had already decided to put in place its own separate statutory regime for six-sided widgets. Ultimately, if Parliament decides after a particular judgment by the CJEU that it wants to change retained law to take a different course, it can of course do that. However, there are many more rules where it would surely be sensible for this Parliament to leave them in place as they are and to seek to ensure consistency of application between the United Kingdom and the European Union so far as that is possible.

[Patrick Grady (Glasgow North) (SNP)]

Perhaps one reason why the Government and the Brexiteers, who appear to be paying precious little attention to anything going on in the Chamber, are not really interested is because they want a bonfire of such regulations and a race to the bottom. That is the ultimate goal of the hard Brexiteers on the Conservative Benches.

[Stuart C. McDonald]

I suspect my hon. Friend is absolutely right. My point is that there are many more rules where it would surely be sensible for this Parliament to leave in place exactly as they are, and not only that but to seek to ensure consistency of application between the United Kingdom and the European Union so far as that is possible. Clause 6(6) allows for even modified retained law to be interpreted in accordance with retained case law and principles if that is what Parliament intends.

We need a clear expression of intention that by leaving the rules unmodified and retaining the same rules in place on exit day, we are seeking for them to be applied in the same way here as across the EU. That is a much more political decision than I think the Minister accepts, which is why it should not be left to judges; it should be expressed clearly by this Parliament that that is what we want, if that is indeed what we want to happen. That will help judges, it will be good for the six-sided widget manufacturers who will understand the rules under which they have to operate, and, most importantly, it will be good for all citizens who will benefit from clarity about their rights. It is therefore imperative that Parliament makes this happen, through amendment 137 or otherwise.

[Sir Oliver Letwin]

It pains me to say this, but I think that what several of us have been trying to say, put very briefly, is that clause 6 as it stands is a frightful mess. Of course I shall vote with the Government tonight, but I very much hope that after this debate—as did not happen after Second Reading—the Government will go away and think about clause 6. If they do not, what will happen is that it will, rightly, be massacred in the House of Lords, not least by former Law Lords. Once it has been, it will be very difficult for those of us who know it is a mess at the moment, in a way I am about to describe, to support an attempt to overrule the House of Lords. I beg those on the Front Bench to take seriously the problem we are trying to expose here. Let me try to describe it more clearly than perhaps I have managed so far, although I know that several of my hon. Friends have also tried.

It is clear, from clause 5(2), that the Government accept that, in relation to the retained law, the interpretative powers of the ECJ are extremely wide. It states:

“the principle of the supremacy of EU law continues to apply…so far as relevant to the interpretation, disapplication or quashing of any enactment”.

As my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) rightly pointed out, the supreme power that can be given to a court in this land is being attributed in the Bill to the ECJ in respect of existing legislation—namely, the power to quash an Act of Parliament. It does not get higher than that.