European Union (Withdrawal) Bill: 21st November 2017

Anna Soubry (Broxtowe) (Con)
As an old lawyer who enjoyed jurisprudence, I know that our laws and rights come from many different sources. I am an old common lawyer, so I actually do not like stuff being written down too much; I like things to develop over time. I would really need persuading about new clause 16, because it just asks for a report, which seems awfully wet.
Mr Leslie
I was trying my best to offer a hand of friendship across the Chamber and to say, “Let’s meet halfway and find a way of forging a consensus.” If the right hon. Lady wishes, there are other amendments today that ask for the charter of fundamental rights to be kept. I will certainly be voting for those, but she obviously knows that I would like to find a way, in the spirit of compromise, of reaching a consensus. I agree that a report is only a small step in that direction—hence the drafting of new clause 16—but I am massively impressed by her strength and commitment to the protection of rights in our country.

Anna Soubry
I hope this will be a more helpful intervention. The hon. Gentleman is making a good point. The point about Francovich is that we will not be able to have a claim arising from a directive that we have accepted into substantive British law, because we will have left the European Union, and that is simply not fair. ​People would have had a claim but we will have left, so someone who sought to make that claim afterwards will not be able to do so. It is right that we will not be subjected to any new directives, so people could not raise them, but it is bad to take away a right that people would have had as we had accepted the directive into substantive law. That is the point here.

Mr Leslie
Yes, the right hon. Lady makes a good argument about how we are transposing certain bits of European legislation into UK law but not necessarily the protections to go alongside them. That is the point we need an explanation on. Why not bring those with us?

Anna Soubry
Will the Minister give way?

Dominic Raab
I am going to make a bit more progress, but I will give way shortly.

Anna Soubry
Does this debate not show how technical this is and how good it is—I know people get a bit agitated about lawyers—to have so many lawyers, especially constitutional lawyers, on these Benches? Actually, most people are keen to get the Bill right on a constitutional level, and the more we can debate it, thrash it around, get it sorted and reach sensible compromises, the better it will be for the Bill, for Parliament and for this whole Brexit business, because it will stop some of this division and bring us all together.

Mr Harper
I am grateful for that intervention. Actually two other useful points came out that I had not previously heard in this debate. One was about rights. A discussion is under way, which will be dealt with partly in this Bill and partly in the other withdrawal Bill, on the extent to which certain important matters will only be dealt with in primary legislation. Ministers will be clear that they will not use the ability to change those important rights in secondary legislation. To some extent, that has been dealt with by the fact that we will have the other withdrawal Bill. I think that the Secretary of State has given a commitment that certain things will only be dealt with in primary legislation.

On the second point, I hope the Treasury Bench will forgive me—tempting a discussion about amending the Human Rights Act is probably not something that in my previous job as Government Chief Whip I would have wanted to encourage—but a sensible argument has been made for saying that, if there are important rights that we think are not adequately reflected in legislation, at some point, in due course if not perhaps immediately, some of them might benefit from being brought into the Human Rights Act. That might be worth thinking about, although it would have to be done very carefully, because once we start down that process of amendment, I do not know where it will end. Those two avenues for dealing with this were, I think, very sensible.

I think that my right hon. and learned Friend the Member for Beaconsfield accepted that it might not be right to pursue amendment 8, but, on amendment 10, although I would not agree with the approach of my right hon. and learned Friend the Member for Rushcliffe, a point has been made on which Ministers could sensibly reflect. I hope that when the Solicitor General responds he will be able to make a sufficiently specific commitment to persuade my right hon. and learned Friend the Member for Beaconsfield and others not to press amendment 10.

The hon. Member for Sheffield Central (Paul Blomfield), who is not in his place but whose Front-Bench team are more than adequately represented, said that rights were not as effective if their source or root was not clear. I am afraid that this is a lawyerly point that I did not quite follow, but I hope that the Minister dealt with it. The memorandum he is going to bring forward should make clear the source of each of the rights in the charter of fundamental rights, so we should be clear about the retained law being brought forward. I hope, then, that that central point of the hon. Gentleman’s argument will be dealt with.

Let me return to article 8 of the charter of fundamental rights, to the point made by my hon. Friend the Member for Chelmsford (Vicky Ford) in an earlier debate and to the fundamental underpinning of the argument advanced by the right hon. Member for East Ham (Stephen Timms). I think that my hon. Friend the Member for ​Chelmsford slightly overstated what the article says. She claimed that it said that everyone owned their data, whereas it actually says that people have the right to protect their personal data. She also spoke about the level at which it was necessary for our law to be exactly the same as ongoing European legislation.

Anna Soubry
I thank my hon. and learned Friend for giving way. He makes a very passionate and highly informed speech, which explains so much about the basis of law and the merits of the common-law system. Surely the point he did not address, however, is this: the Bill enshrines EU law into domestic British law. Therefore it does not make sense not to incorporate the charter. That is the contradiction that concerns many.

Mr Cox
It does make sense, because all that does is restore us to a position pre-2009 in the European Union. The general principles will still apply. There is no inconsistency by allowing the general principles—subject to amendments, which I am not speaking on; I have some sympathy with the amendments tabled by my right hon. and learned Friend the Member for Beaconsfield —but I am convinced that incorporating the charter would be wrong and unwise. As a matter of policy, I urge my right hon. and hon. Friends and Opposition Members not to vote for it.

Anna Soubry
There is genuine concern across this House about this matter, because it cannot be right that people cannot raise a claim on EU law “retrospectively”, as the hon. Lady puts it. My right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) has raised this problem, so I hope the Government will examine it and come up with proposals that will satisfy this concern from right across the House.

Mary Creagh
I thank the right hon. Lady for that intervention. Often the simplest sentences raise the biggest alarm bells, because things can be missed if we blink, and substantial rights are engaged in this. The Brexit Secretary said in his speech to UBS last week that the UK would remain

“in all the EU regulators and agencies”

during the transitional period. That leaves us with a further conundrum, because transitional rights are mentioned in the European Commission’s negotiating paper and it says that the ECJ will continue to be able to decide, presumably on Francovich, during any transitional period. The issue of the transitional period is stretching the elastic limits of the Conservative party and of the Cabinet at the moment in terms of which wing of the party is going to succeed, but from the point of view of economic stability and job stability in this country I certainly want to see a transitional period. This Bill raises questions about the loss of those rights if there should be, as we all hope there will be, a transitional period.

The problem is that those rights start to erode as exit day looms, because the incentive to follow the EU directives will be diminished for the Government as they will be let off the hook, given that there will be no retroactive right to sue under Francovich.​

Schedule 1 therefore fails the basic test of fairness. For example, if the Government are in breach of an air quality directive, perish the thought, and people are suffering a substantial loss as a result, only those who start legal proceedings before exit day would be entitled to those damages. My amendment 139 would ensure that the right to sue the state and to obtain a remedy under Francovich is still available for those who have suffered that loss or damage before the UK exits the EU. This would allow the victims of a Government failure to uphold their rights that took place before exit to obtain those damages. It would bring fairness to this process, as well as, crucially, legal continuity and legal certainty. Brexit must not be used as an excuse to abolish citizens’ rights and protections under the law. In the referendum my constituents did not vote to reduce their rights, and I hope we will be able to test this matter in the House this evening.

Anna Soubry
Does my hon. Friend agree that it is really important, given the many concerns about the Bill, that we make it absolutely clear, as she quite rightly points out, that we have a very proud history on human rights in this Parliament and in this country? The idea that this Government are in some way taking away rights from people is simply not true, and it is very important for all of us to report this, especially to our constituents, with great accuracy.

Antoinette Sandbach
I entirely agree with my right hon. Friend. In fact, I could not have put it better myself. In that regard, I adopt everything she says.

This is important because we have been publicly vilified for tabling amendments to the Bill. Debates such as this illustrate very dramatically to our constituents why it is so important to undertake a democratic process, which sometimes involves tabling probing amendments—I know amendment 8 is such an amendment—so that we can look at, consider and debate these issues and, I hope, come to consensus across the House. I know other Members wish to speak. These are incredibly important matters, and I am waiting to hear what Ministers say about how they will approach them.

Anna Soubry
The Solicitor General
I am sorry but I must press on.

The first point to make on the amendments is that whereas some of the general principles are now set out expressly in the EU treaties, the general principles were first recognised by the European Court of Justice. They were and are judge-made law, and all the principles ultimately have a basis in case law.

We debated the inclusion of article 191 of the Lisbon treaty on the functioning of the European Union at length on day two of Committee, so I will not repeat those arguments here. That said, though, I wish to re-state that the inclusion of article 191 would risk going further than the existing principles that are set out in EU and UK law today. The requirements that the amendments set out do not exist today in either EU or domestic law. If the amendments were made, they would require the courts to interpret all legislation compatibly with the environmental principles. Given that the Bill’s purpose is to bring into effect the law that we have currently, the amendments regrettably risk generating a measure of uncertainty and a degree of confusion about the legal position.

Anna Soubry
May I return to clause 5(1)? It states:

“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.”

Will the Solicitor General please look at that in light of the Government’s excellent determination that we will still effectively be subject to the ECJ during the beginning of the transition period, because if that is to be the case, it is not consistent with clause 5(1)?
The Solicitor General
I know that my right hon. Friend listens carefully to everything I say, and I am sure she would agree, first, that the transition period rightly has to be the subject of separate legislation—the Bill on the withdrawal agreement that will come before the House in due course—and secondly, that we have to cater in this Bill for as high a degree of certainty as possible for that legal exit date. That certainty is an important first step before we get into the question of transition—that interim period that I accept needs to be underpinned by primary legislation passed by this House, but which is a separate and distinct stage. I do not think there is any contradiction between the position that we want to take in a transition period—subject, of course, to the negotiation—and the clear position that we want to take in the Bill.

Before that intervention, I was dealing with amendments 101 and 336. Amendment 336 goes further, in that it would give a right of action based on a failure to comply with the environmental principles, and legislation would be at risk of being struck down by the courts if it was not compatible with them. I hope that Members were reassured and encouraged by the announcement by my right hon. Friend the Secretary of State for Environment, Food and Rural Affairs on 12 November of our intention to create a new comprehensive policy statement setting out the environmental principles. That statement will draw on the EU’s current principles and will of course underpin future policy making.

The Bill takes the right approach by retaining the principles as they have been recognised by the European Court, thereby providing the greatest possible clarity and certainty. Amendment 336 would alter the approach to the taking of that snapshot of EU law as it applies ​immediately before exit day. It effectively prejudges the outcome of the negotiations and introduces inflexibility, by seeking to bind us to decisions made by the European Court on general principles for the full duration of any implementation period. That pre-empts and prejudices the outcome of the negotiations. On that basis, I urge right hon. and hon. Members to withdraw their amendments.

Paragraph 4 of schedule 1 removes the right to what are commonly referred to as Francovich damages from our domestic law after exit. That form of damages is a specific EU-law remedy that arises only in certain limited circumstances when an EU member state, or an arm of that state, has committed a “sufficiently serious” breach of its EU law obligations and there is a direct causal link between the breach and the damage. This is not a wide-ranging general right to sue the Government; rather, it is inextricably linked to and constrained by EU membership. Nor, as some have suggested, is this an everyday course of action for the average citizen. The number of actual Francovich cases heard by UK courts over the past 26 years is relatively low. Estimates vary, but studies suggest that, in the 20 years following the decision in Francovich, there had only been between 22 and 25 cases.