European Union (Withdrawal) Bill

Wera Hobhouse Excerpts

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

[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.

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[Mr Baker]

rose—

[Wera Hobhouse]

rose—

[Stephen Gethins]

I will give way to the hon. Lady, and then to the Minister.

[Wera Hobhouse]

Does the hon. Gentleman agree that people voted to leave the EU because they wanted a better future? They did not vote for Brexit at any cost, including the cost of democracy.

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[Sir William Cash]

There are at least 12,000 regulations, every one of which would have required a whole Act of Parliament, with amendments and stages in both Houses. A transcript would have been available. People would have known who voted which way and why, and known the outcome of what was a democratic process. Instead, as I said to my right hon. and learned Friend the Member for Rushcliffe—even he conceded that I was right on this—the process is conducted, over bibulous lunches and in the Council of Ministers, in a manner completely lacking in democratic legitimacy, yet, because of consensus arrangements behind closed doors, it becomes part of our law through section 2 of the 1972 Act. It is imposed on us by our voluntary consent. It is therefore up to us and the people of this country to decide, by their voluntary consent and their freedom of choice, to get out of this, just as it was brought in by an Act of Parliament, without a referendum, in 1972.

[Wera Hobhouse]

Has the hon. Gentleman not shown a deep misunderstanding of how the European Union works through consensus and participatory democracy? Rather than one country dictating to another, that is the whole spirit of the European Union. No one country is sovereign, but decisions are taken in the round.

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[Sir William Cash]

I do not think that matter has been entirely settled, by any means. The hon. and learned Member for Edinburgh South West (Joanna Cherry) earlier referred to a lunch she was at, where it appears that she was told we were going to be subject to the European Court of Justice, and my right hon. and learned Friend has made exactly the same point.

I have to say that there are serious questions about the nature of the European Court. The problem is that the European Court is essentially not an impartial court at all. It has never discharged the function impartially, and from the early 1960s it developed a range of principles, such as those of the uniform application and effectiveness of EU law, that it then expanded of its own volition into the general principles of the supremacy and direct effect of EU law over national law. These judge-made principles had no basis in the EU treaties until the Lisbon treaty, which my right hon. and learned Friend, who was then Attorney General, opposed. The fact is that until Lisbon—

[Wera Hobhouse]

Will the hon. Gentleman give way?

[Sir William Cash]

I am afraid not, as I really must proceed.

None of these judge-made principles had any basis in the EU treaties, and the principle of the primacy of EU law is a judicial creation recently codified, and no more than that. However, because we have accepted judgments of the European Court under section 3 of the European Communities Act 1972, which we are going to repeal, we are saddled with this, and that is one of the things we are going to unshackle.

Interpretation is done in the European Court by what is known as the purposive approach. In fact, as has been well said, there are many different purposes that can be in conflict with one another, and the methods of interpretation applied are anything but satisfactory. I therefore say to those who want to advocate the European Court, whether in the transitional period or in general, “Beware of what you wish for,” because the European Court can create havoc in relation to our trading arrangements.

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We were told, for example, that the EU would never be able to control our tax system, yet many items carry VAT that I think Members on both sides of the House would like to abolish, although we are not allowed to do so by European legal requirements. Before the renegotiation of our relationship attempted by the previous Prime Minister, the two main parties agreed that they wanted certain modest benefit changes to our welfare system, but both had to accept that they were quite illegal. It was therefore quite inappropriate and impossible for the House to take action that would have withstood challenges from the European Court of Justice.

[Wera Hobhouse]

Will the right hon. Gentleman give way?

[John Redwood]

No, I am not going to take any interventions. I am conscious that we have very little time, and I want other colleagues to be able to speak in this debate.

We have been unable all the time we have been in the EU to have our own migration policy or to decide who we wish to welcome into our country. We cannot have our own fishing policy and we cannot have our own farming policy. We have moved into massive deficits on both fishing and on farming, whereas we used to have a good trading surplus on fish before we joined the European Economic Community and we used to produce most of the temperate food we needed before the common agricultural policy started to bite.

The British people decided in their wisdom that we should take back control, and we will take back control by the passage of this very important piece of legislation. Above all, clause 1 will take back that control. The great news for colleagues on both sides of the House who had different views on whether we should leave or remain is that their genuine passion for democracy, which many on both sides of the argument have expressed today, can be satisfied by agreeing to clause 1, which repeals the original Act. Once that has happened and the repeal has taken place, this Parliament will once again listen to the wishes of the British people and be able to change VAT, our fishing policy, our agricultural policy, our borders policy and our welfare policies in the ways we wish.

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[Tom Brake]

I am not going to give way, because other Members want to speak.

[Wera Hobhouse]

rose—

[Tom Brake]

I will give way to my hon. Friend.

[Wera Hobhouse]

Does my right hon. Friend agree that there seems to be a fundamental lack of understanding about democracy? Democracy is not fixed in stone; a decision that has been made once does not have to last for ever and a day. Indeed, our parliamentary democracy is based on people being able to vote every four or five years and perhaps vote for something else. The referendum should not be seen as forever fixed in stone.

[Tom Brake]

Indeed, although the hon. Member for Stone thinks that our democracy is very much set in stone on this issue. Interestingly, when the hon. Member for Harwich and North Essex (Mr Jenkin) was asked what would happen if, 12 months from now, 90% of the population felt that a mistake had been made on 23 June 2016, he seemed to say that we would proceed regardless and completely overlook any change in public opinion.

The Liberal Democrats will clearly oppose new clause 49, but one thing I learned during the debate is that the right hon. Member for Birkenhead is apparently not an ardent Brexiteer. I was surprised to learn that, but I welcome the fact that things are evenly balanced for him. However, I was a bit worried to hear him say that we did not need more facts; it is actually quite important to have facts and not necessarily always to act on one’s gut feelings.

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[Mr Duncan Smith]

I have not tabled any amendments, but I will briefly comment on one set of amendments before making a point about the drafting of clause 6. For me and many of my colleagues, that is the most important clause because the clear definition of being in or out of the European Union ultimately comes down to the Court of Justice’s ability to change the United Kingdom’s laws by direct reference as a result of a clash with European law.

Twenty-five years ago, I stood in almost the same place, during the House’s consideration of the Maastricht treaty, to make the point that the Court of Justice is more political than courts in the UK, even by its appointments and by the nature of its judgments. Judicial activism is a process that came directly from the Court of Justice, and it eventually percolated, to a much lesser extent, into the UK courts.

It is through those judgments that the Court of Justice has widened the concept of where the Commission is able to rule. A good example is that, through Court reference, whole areas of social security that were never in the original treaties were widened dramatically. Rulings have been made on the application of social security payments to individuals from countries that were never referenced in the original treaties, which is a good point about the Court’s power.

This is so critical because, after the referendum, the Centre for Social Justice, the Legatum Institute and others came together to do a lot of polling asking the public why they supported the vote to leave the European Union. The single most powerful reason—more than money and more than migration—was to take back control of our laws. I was slightly surprised because I thought it was an esoteric point for most members of the public, but they said it was their most powerful reason for voting. Some people said that, even if it meant they would be worse off for a period, it was still the overriding principle behind their vote to take back control and leave the European Union.

With that as the key, the Government are right to drive this policy. It is absolutely right for them to make it clear that, on the day we leave, the European Court of Justice will cease to have direct effect in the United Kingdom. I will return to the drafting on how long some of the other principles will continue.

The hon. Member for Nottingham East (Mr Leslie) is not here at the moment but, in line with the earlier statement by the Minister, my hon. Friend the Member for Esher and Walton (Dominic Raab), it would be wrong to support new clause 14 and amendment 278. There is a simple principle behind the Bill, and the Government have now accepted that there will be primary legislation on the agreement, or lack of agreement, as we leave the European Union with regard to our trade and other arrangements. The new clause and the amendment are wrong because they would seek to bind the hand of the Government as they sought to negotiate, and that is not the purpose of this.

Let me give an example. Not so long ago, the Secretary of State for Exiting the European Union said clearly that his view was that during the implementation period—at the beginning, we hope—we would want to have those elements of the eventual agreement in place. One of those would be a process of arbitration between the UK and the EU. If that was agreed and was part of the process, and then became part of the implementation period, the new clause and the amendment would prevent our being able to make that arrangement—they would be bound into law and we would not be allowed to go into the implementation period with these arrangements. That would immediately knock out any opportunity we have to accelerate the process of where we would eventually be by getting into the implementation period and applying an arbitration process agreed between the EU and the UK for those areas of disagreement on areas of law and other interpretations. That is why these proposals are wrong and would damage the prospects of the negotiations that are likely to take place.

[Wera Hobhouse]

I asked a couple of days ago about this idea of an arbitration court. Now that the right hon. Gentleman is here, will he clarify how it would be different for ordinary people in the street in comparison with what the ECJ is currently doing?

[Mr Duncan Smith]

The whole process of arbitration is a natural one in all trade arrangements between two different groups: they agree to an arbitration process when there are clashes of interpretation about what they have agreed. That is standard practice; it has been in pretty much every free trade arrangement.

If we seek a free trade arrangement, the way to have that governed is through such an arbitration process, where differences—when things cannot be agreed between the two—are taken for a final process of examination and some kind of judgment about the matter. That would not be done by the Court of Justice sitting in the European Union, or by a UK court; it would be outwith both of those, but in the agreement.

The point I am making is that if such an arrangement was agreed in a free trade arrangement, we would want to start it as soon as possible, because if there is an implementation period, we would want to start implementing what we have agreed as soon as possible. The hon. Lady needs to look up most of the other trade arrangements to see what I am saying. We want to give the greatest flexibility to the Government. It is crucial that as we leave, we leave the Court of Justice in that sense.

I want now to deal with some of the arrangements in clause 6. I say to Ministers that there is a certain amount of confusion over where the courts are meant to reference the ECJ, including in respect of its previous judgments. As has been mentioned by some of my colleagues, including my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), there remains a confusion as to where the courts will reference judgments from the ECJ, both past and existing. I come back to the point of clause 6(2), where they are told not to have regard to anything. However, the Bill later goes on to modify that quite a lot. I am particularly concerned—this has been raised elsewhere—by the definition that

“’retained EU case law’ means any principles laid down by, and any decisions of, the European Court, as they have effect in EU law immediately before exit day and so far as they”.

The Bill goes on to reference exactly how that will work.

My point is that those principles will themselves be modified by the European Court of Justice as it goes forward. My question really is: as they are modified, at what point will UK courts consider those principles to be no longer relevant to their judgments as they refer to them? I do not expect an answer right now, but I hope to get one as we go forward. Lord Neuberger has made the point that it is unclear to the courts how strong their reference should be—whether they should reference the principles or not. The point about the principles is the more powerful point, because I have no idea when the cut-off comes or whether it ever comes—whether we will ever break free, as it were, from continuing judgments and changes to the European Court principles.

European Union (Withdrawal) Bill

Wera Hobhouse Excerpts

2nd reading: House of Commons
Monday 11th September 2017 Commons Chamber

[Wera Hobhouse (Bath) (LD)]

“Democracy” and “the will of the people” are terms often used and—dare I say it—abused in connection with leaving the European Union. I have been listening to this debate for many hours now, and I am puzzled by the arguments of those who support the Bill’s progress. As has already been said this afternoon, we are here to debate not whether we leave the EU but how we do it. Over the past two days of debate, it has been eloquently proven by Members from both sides of the House that what is in front of us is deeply flawed, because it threatens to write into law a substantial loss of our parliamentary democracy and set an alarming precedent. It is therefore frustrating to be accused of undermining the will of the people if I do not support the Bill’s progress. I will not support the Bill, because it threatens a fundamental principle of British democracy—the supremacy of Parliament and the division of powers—and gives sweeping powers to Minsters and bureaucrats. The right to make laws in this country was given to Parliament after many hard-fought battles.

[Richard Drax (South Dorset) (Con)]

Will the hon. Lady give way?

[Wera Hobhouse]

Will the hon. Gentleman hear me out?

The supremacy of Parliament is a proud tradition that all of us should defend. I find it perplexing that, for example, the hon. Members for North East Somerset (Mr Rees-Mogg) and for Blackley and Broughton (Graham Stringer), both of whom I know to be thinking people, are so eager to see us leave the EU that they forget everything else in its path. Democracy matters, and whoever tries to suspend democracy to enact the will of the people should think again.

The will of the people is of course a pretty mixed bag and is not fixed forever. On 23 June last year, almost 70% of my constituents voted to remain in the EU. In June this year, I was elected on the basis of my opposition to the Government’s Brexit line. That was the will of the people in my constituency at that point. True to form, Bath had one of the highest voter turnouts, and active engagement in Bath is not limited to election time; it is evident every day. Protest groups, demonstrations and lively debates are testament to how much people in Bath care about how our country is run. Another principle of democracy that they want to see practised is that I can speak on their behalf about their concerns about when and how we leave the EU without being labelled as a remoaner, a reverser, unpatriotic or undemocratic. Democracy is about the right to debate freely and voice an opinion without being labelled or bullied. If we truly want to achieve the best for our country, we need to be able to discuss all outcomes freely, including that people—leavers or remainers—can change their mind.

The Bill adds another level of madness to the Brexit process, betraying not only those who voted remain, but those who chose to leave. One of the leave campaign’s strongest arguments was about taking back control here in Westminster, but instead of giving control back to this Parliament, which the leave campaign championed, the Bill is a power grab by Ministers. One of my constituents said to me:

“When people voted to leave the European Union, they didn’t vote to swap backroom deals in Brussels for more of the same in Whitehall. They voted for Parliament and the British people to have more of a say.”

As the MP for Bath, I will fight this attack on our democracy. I will not sit idly by as this Government try to erode our rights and change our laws behind closed doors. How can anybody support this Bill? My only conclusion is that those who support it want their version of Brexit at any cost, including democracy. Come on, let us stand up for democracy and stop this flawed Bill in its tracks. I dare say that the will of the people will be right behind us.

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[Mike Amesbury (Weaver Vale) (Lab)]

rose—

[Wera Hobhouse]

rose—

[Richard Drax]

No, I will not give way—absolutely not! I do not have time and I am enjoying myself. I am representing my constituents and my country. I am speaking up, at last, for Great Britain, and not for a bureaucracy that is going horribly wrong. The great thing is that when the Bill returns to the House, we can scrutinise it—we can do our job. That is what we are here for.

The Scottish National party wants independence and to rejoin the EU. The EU would nail Scotland to the floor if ever it got the so-called independence that the SNP desires. SNP Members would rue the day, as they headed to economic ruin, trapped in the euro—if indeed the EU let Scotland have it.

The Bill is good for our country. Ministers have not got it all right; I would be the first to concede that, and I am sure they would concede it, too. It can be debated and changed in Committee—of that I am certain—but a vote against the Bill tonight is a cynical ploy that our constituents, who sent us to the House, will not accept. I shall vote with the Government.

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[Richard Graham (Gloucester) (Con)]

Today and last Thursday, a number of speakers on both sides of the House stated that this Bill is not about whether we leave the EU, but about how. That should be something on which we can all agree, although today we have heard speeches from those who clearly take a different position. For example, the right hon. Member for Tottenham (Mr Lammy) made it absolutely clear that he was fighting against leaving the EU at all. The hon. Member for Lewisham East (Heidi Alexander) made an equally passionate speech, saying that she was voting to stay in the European economic area, and the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) started his speech by stating that he would not vote for the Bill this evening, and then looked for reasons as to why he would not do so, which is broadly the position of almost all his colleagues.

If we look at the Bill objectively, surely everybody can agree that we are where we are, and that we must have arrangements in place that suit every organisation in this country, including the prospect of knowing what the law of the land is at the end of March 2019.

[Wera Hobhouse]

rose—

[Richard Graham]

I am tempted to give way, but I will not because are so many other people wish to speak. Will the hon. Lady forgive me?

[Wera Hobhouse]

indicated assent.

[Richard Graham]

It is all about what the process will be. Interestingly, some of us have had the chance to look at a House of Lords report, which recommended some elements that this Bill should include. The report made it absolutely clear that delegated powers will be necessary in some cases, because the sheer volume of legislation needed—some 12,000 pieces of legislation—means that unless we use those powers effectively, the job will simply not be done in time.

The House of Lords Constitution Committee, which is not known to be a warm friend of this Government, made two specific recommendations. It recommended that

“a general provision be placed on the face of the Bill to the effect that the delegated powers granted by the Bill should be used only: so far as necessary to adapt the body of EU law to fit the UK’s domestic legal framework; and so far as necessary to implement the result of the UK’s negotiations with the EU.”

When the Secretary of State introduced the Bill on Thursday, he made it absolutely clear that that was broadly what the Government hoped to achieve. He went further and specified what the legislation would not be about. He made it clear that the powers in clause 9 would be for only two years and that they would make “technical and legal corrections” to deficiencies in the law. He also made it clear that Ministers will not have the power to make major policy changes and that changes will still be subject to parliamentary scrutiny and oversight.

Several Members, mostly on the Opposition Benches, have questioned the definition of significant, what restraint there will be on the Government when deciding what is and what is not important, and what constitute technical and legal corrections. Therefore, there has been a debate, with Members on both sides of the House offering suggestions as to how things can be improved. The Secretary of State has said that he is in listening mode and that he is happy to talk about mechanisms for making sure that the process is fully democratic and open. All that is encouraging and in tune with what my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) referred to on Thursday during his important contribution to the debate. In particular, he said that it is important

“to have an established parliamentary system of scrutiny to ensure that the different types of statutory instruments that will be needed are correctly farmed out. I have no doubt that my right hon. Friend”—

the Secretary of State—

“is right that the vast majority of them will be technical and of very little account, but some will be extremely important and will need to be taken on the Floor of the House. We need to have a system in place to do that.”—[Official Report, 7 September 2017; Vol. 628, c. 407.]

My right hon. and learned Friend did not recommend a specific system, but it seems relevant to suggest here that we already have what is, effectively, a body for precisely this task: the Joint Committee on Statutory Instruments. We also have a different model, or possibly an additional one. I am talking about what the Secretary of State for Work and Pensions is obliged to go through as a statutory requirement: the Social Security Advisory Committee. Some of us believe that we could use a combination of both those bodies. We could use an advisory committee to provide the technical analysis of proposed changes, and the Joint Committee to go through them and approve or disapprove the recommendations.