1. How many subsidiary companies have been set up by NHS trusts.
Local NHS organisations are responsible for deciding the most appropriate structures they need to deliver services to their patients within available resources. Commissioners and regulators are responsible for ensuring that NHS providers act in the best interests of patients and taxpayers. A theme of the 2015 review of performance variability across NHS hospitals, undertaken by the noble Lord Carter of Coles, sought to drive efficiency through sharing administrative functions across NHS bodies in an area. A number of trusts are creating the right structures to do so. NHS Improvement is aware of 39 subsidiaries consolidated within the accounts of foundation trusts as of 31 March 2017.
Does the Minister share my concern that NHS trusts in Yorkshire are now lining up to follow the example of Airedale NHS Foundation Trust, which recently, behind closed doors and as part of a VAT scam, set up a subsidiary company to run many of its activities, which will not only cost the Treasury in lost tax receipts, but mean that new staff, such as hospital porters, will no longer be on NHS terms and conditions?
I can reassure the hon. Gentleman that we have no interest in allowing NHS trusts to avoid their tax responsibilities. Guidance was sent to all trusts in September to ensure that any TUPE transfers of staff would remain subject to NHS pension rules and should not be done for tax avoidance purposes.
What role does the Minister see for the private and voluntary sectors in the provision of NHS services and delivery in the future?
There has been a continuing involvement of private provision of health services since the very origins of the NHS, when GP partnerships came in, as private businesses, to provide their services. Of course, competitive tendering was introduced to NHS contracts by the last Labour Government, and the rate of private provision under that Government grew faster than it has under this Government. According to the last figures, 7.7% of services were provided by the independent sector.
Where a foundation trust or other NHS provider sets up a wholly owned subsidiary within the public sector, would the Minister expect to see all those papers in the public domain?
As I said to the hon. Member for Keighley (John Grogan), the trust, which would consolidate subsidiaries in its accounts, would publish the accounts of subsidiaries as part of its consolidated accounts each year.
On Sunday, the Secretary of State said that “good public services are the moral purpose of a strong capitalist economy”, yet trusts are so strapped for cash that they are creating private companies to get around VAT laws. Not only does this take money away from the Exchequer, meaning that other parts of the NHS are effectively subsidising these trusts, but it also removes vital protections for staff, who will find that they no longer work for our national health service. Be in no doubt: this is another step down the road of privatisation. Will the Minister set out, therefore, what protections are in place to prevent any of these companies from being sold off in the future to the highest bidder?
I am afraid that the hon. Gentleman, for whom I have considerable respect, is trying, yet again, the tired old approach of weaponising the NHS by alleging privatisation—seeing privatisation fairies where there are not any. This is about responding to the review of Lord Carter—one of his hon. Friends in the other place, I remind him—of driving efficiency through the NHS, which I know he supports, and about finding the right structures to allow, for example, the back offices of different NHS bodies in an area to be combined. That requires a structure, and a number of foundation trusts are setting up subsidiaries to provide those services to each other.
2. What steps he is taking to ensure adequate medical provision in areas where there is a shortage of doctors.
The NHS needs more doctors, which is why last year we announced one of the biggest-ever increases—a 25% increase—in the number of medical school places. Some 500 additional students will start next year and a further 1,000 the year after.
I am pleased to hear that the Department is working on addressing these issues, but can we also look closely at other difficulties specifically facing rural areas? Local patient transport is certainly one of these. With rural bus links thin on the ground and struggling, will the Secretary of State assure us that adequate provision will be made to ensure that patients can always access the services they need?
My hon. Friend is right to raise the question. I visited a GP surgery in Thornbury, in his neighbouring county, on Friday and discussed some of these issues. The NHS has an obligation to make sure that people can access its services, and in certain circumstances people are entitled to funding to help them do that. I thank him for raising the issue, however, and know that he will continue to fight hard on it.
All four witnesses who gave evidence to the Health Committee inquiry into the current workforce crisis last week described the current situation as “unprecedented”. Janet Davies, the head of the Royal College of Nursing, said that if Brexit happened, it would be devastating. Does the Secretary of State accept that if there is no deal next month on the rights of EU nationals, the current stream of EU workers leaving our NHS and social care system will become a flood?
With respect, I do not think it helps to reassure the brilliant NHS professionals from the EU who are working in the system when the right hon. Gentleman asks questions like that. The reality is that those people are staying in the NHS, and I take every opportunity to ensure that they feel welcome. I try to stress how important they are, and how the NHS would fall over without them. The Government continue to make every possible effort to secure a deal for their future, which we are very confident that we will achieve.
Grantham accident and emergency department is very important to my constituents and those of my neighbour, my hon. Friend the Member for Grantham and Stamford (Nick Boles). It is also very important to me, as it saved my husband’s life on two occasions. Last August it was closed overnight because there were not enough doctors to staff it safely. There are enough doctors now, but unfortunately NHS Improvement has interfered to stop its reopening, postponing it by at least a month. Does the Secretary of State agree that it should be reopened in December?
I think I have said to my hon. Friend in the House, and I have certainly said to my hon. Friend the Member for Grantham and Stamford (Nick Boles)—who I am delighted to see back in the Chamber after an incredibly brave battle against cancer—that this was a temporary closure based on difficulties in recruiting doctors, so I will certainly look into the issue very carefully.
Last winter, patients were languishing on trolleys in A&E for up to 12 hours. The Red Cross was called in, and people were leaving A&E before their treatment. Does the Secretary of State recognise that it would be absolutely unacceptable for that to happen again this winter? What steps is he taking to ensure that it will not?
With respect, the Red Cross was not called in. As the hon. Lady well knows—as a doctor working at Tooting hospital—NHS trusts contract with the Red Cross throughout the year. However, she is right to say that what happened last year was not acceptable. We have done a huge amount: perhaps most important is our provision of an extra £1 billion for this year’s social care budget and a further £1 billion for next year’s budget, because that is where particular pressures were, but we have also allocated £100 million to a capital fund to help A&E departments to improve their facilities.
A shortage of nurses has led to the closure of the in-patient ward at Shepton Mallet Community Hospital this winter. What have the Government done to increase the number of nurses available in rural areas such as Somerset, and to encourage the Somerset clinical commissioning group to recommit itself to the hospital’s future as a matter of urgency?
I congratulate my hon. Friend on the close interest that he takes in his local community hospital, which matters so much not just to his constituents but to the NHS, because many people are discharged to it from busy district general hospitals. As he says, there has been a shortage of nurses. That is why we have decided to increase the number of training places by 25%, which is the biggest increase in the history of the NHS.
Would the Secretary of State consider introducing a bursary-type scheme whereby young doctors’ student debt would be wiped out after they had spent five years in general practice in areas with a shortage of doctors?
We have introduced something similar. In areas where it has been difficult to recruit GP trainees for three years or more, we have provided a £20,000 salary supplement to attract people to those areas. It has been very successful, and we have extended it to 200 places this year.
High Weald Lewes Havens clinical commissioning group has undertaken a consultation on closing Rotherfield surgery, which is in my constituency, against the wishes of the community and local councillors. Does my right hon. Friend agree that CCGs have responsibilities and liabilities when it comes to supporting rural practices, and that they should do all that they can to recruit GPs in rural areas?
I do agree. I also know that, although areas such as Wealden are beautiful places in which to live, it is sometimes very difficult to recruit people to become, in particular, new partners in general practices in such areas. We are concerned about that. Nationally, we have a plan to recruit 5,000 more GPs by 2020-21, but we need to ensure that they go to rural areas such as that represented by my hon. Friend.
The Secretary of State will know that there are huge numbers of vacancies across the NHS, particularly in nursing, partly driven by pay restraint. He has said that the pay cap will be scrapped, so does he agree with Simon Stevens, who said that it would be an “own goal” not to fully fund the scrapping of that pay cap in the Budget next week and to expect it to be paid for by productivity gains?
I have been clear about this: the Government are willing to be flexible in terms of funding additional pay beyond the 1% for nurses, but we want some important reforms to the contracts that they operate under. If those negotiations go well—at the moment we have been having very constructive discussions with the Royal College of Nursing—I am hopeful that we can get a deal that everyone will be happy with.
So the Secretary of State does not agree with Simon Stevens. May I ask him about Simon Stevens’s comments last week? He warned that if the underfunding continues, waiting lists will rise from 4 million to 5 million, cancer care will deteriorate, the mental health pledges the Secretary of State has committed to will not be met, and the 18-week target will be permanently abandoned. And is it not the case that if in next week’s Budget the Chancellor does not allocate at least an extra £6 billion a year for the NHS, the right hon. Gentleman will have failed in his responsibility as Secretary of State?
What Simon Stevens noticed, and we all noticed, was that when he came with this plan in 2014 Labour refused to back it, and in the 2015 election they refused to fund it—to the tune of the £5.5 billion more that the Conservatives were prepared to put in, but the hon. Gentleman’s party refused to put in. He is quoting Simon Stevens, who also said that when the British economy sneezes, the NHS catches a cold—it will be far worse than a cold for the NHS if we have Labour’s run on the pound.
3. What progress his Department has made on improving patient access to GPs.
This Government have changed policy so that all NHS patients will be able to book routine GP appointments in the evening and at weekends. That is very important both for NHS patients and to relieve pressure on A&E departments.
In September, Jubilee surgery, Whiteley surgery, Stubbington medical practice and Highlands practice launched a same-day access scheme in Fareham, based at Fareham Community Hospital, which had the honour of welcoming the Secretary of State on a visit last year. It is commission-led and supported by Fareham Community Hospital taskforce. Will my right hon. Friend join me in congratulating the GPs—including Dr Tom Bertram, who has taken the lead on this scheme—and Fareham and Gosport clinical commissioning group, and explain how patients will be able to access a GP in Fareham?
I was honoured to meet them, and Richard Samuel and his team have done a fantastic job in transforming services in a way that reduces pressure on local hospitals, but also improves services for local people. There was a real buzz there. I also note that neighbouring Gosport has made changes that have improved patient satisfaction to 90%, with 60% of issues being dealt with on the same day. So some really exciting things are happening.
Warrington has fewer full time-equivalent GPs than in 2010, despite the growth in its population, and many GPs are now quitting the service because of the pressures. What is the Secretary of State going to do not only to attract more people into the GP service, but to keep those who are already there?
Those are important questions. I had an excellent visit to Warrington hospital towards the end of the summer, and saw some fantastic work there, particularly on sepsis prevention. The hon. Lady is right: the issues are, first, about getting more medical school graduates to go into general practice—this year we think we will get 3,019 medical school graduates to go into general practice, which is a record as the number has never been that high; and this is also about retention and looking at some of the things that frustrate GPs. One of them is the costs of indemnity, their insurance policy, so we have announced that we will move to a national scheme to help control those costs.
One village medical practice in my constituency, in Slaidburn, was under threat a few years ago, but fortunately it was saved. It does tremendous service to the local community. If it was not there, the elderly patients would have to travel over 40 minutes to Clitheroe, and there is no capacity to take any extra people there. Will the Secretary of State ensure that practices like Slaidburn have a future?
It is essential in very rural constituencies such as my hon. Friend’s that we continue to have active GP surgeries; I notice that they sometimes give the best care in the whole NHS, because they know patients and their families and there is continuity of care. They are incredibly important for the local community, so I congratulate my hon. Friend on what he did to save that practice.
Is it right that constituents in Stroud now have to wait weeks to get an ordinary appointment with their GP? The sustainability and transformation partnerships are now saying that there is going to be an acute shortage of GPs. What is the Secretary of State going to do about it?
No one should have to wait weeks for a GP appointment in Stroud or anywhere else. We have a lack of capacity in general practice, which is why we decided to embark on a plan to get 5,000 more doctors working in general practice. That is one of the biggest ever increases in the capacity of general practice. I am afraid that it will take time to feed its way through the system, but we are confident that we will deliver it.
4. What steps he is taking to improve the safety of maternity services in NHS hospitals.
It is me again, Mr Speaker. Every week, we have four claims against the NHS relating to brain-injured babies, and there is still far too much avoidable harm and avoidable death when it comes to our maternity services. That is why I launched an ambition in 2014 to halve the amount of neonatal death, neonatal injury, maternal death and stillbirths.
The Secretary of State has rightly focused on the importance of reducing infant mortality. The police are investigating the unusually high number of baby deaths at the Countess of Chester Hospital. Will he update my constituents on the progress of that investigation and on the measures being taken to ensure safety at the Countess of Chester, which serves the northern part of my constituency?
First, I should like to thank my hon. Friend for her campaigning on maternity safety, which has engendered huge respect on both sides of the House. She will obviously understand that I cannot comment on that particular police investigation. None the less, immediately after the issues surfaced, safety measures were taken so that the hospital does not now provide care for babies born before 32 weeks, and it is implementing 24 recommendations from the Royal College of Paediatrics and Child Health.
The shortfall in midwives and the financial crisis in the NHS are threatening the “safety, quality and sustainability” of midwifery services. Those are the words of the Royal College of Midwives. How will the Secretary of State restore the confidence of the RCM and the other professional bodies?
The hon. Gentleman is right to say that we need more midwives. We have 6,000 midwives in training, and we have 2,000 more midwives than we had in 2010. It is also important to recognise the progress that is being made. Stillbirth rates were down 14% between 2010 and 2015, and neonatal death rates are down 10%, so there is some really important progress happening.
Will my right hon. Friend join me in congratulating my constituents in Group B Strep Support, and the Royal College of Obstetricians and Gynaecologists, on the September update to the green-top clinical guidelines on group B strep infection, which I am sure he will agree are a significant step forward in preventing that wicked and wholly unnecessary neonatal infection?
I am happy to offer my congratulations, because that is an incredibly important area. We have done really well on clostridium difficile and MRSA infections, but the rates of other infections such as group B strep and E. coli are higher than they need to be. In fact, I am speaking at a conference on infection prevention and control this afternoon.
Only 57% of maternity units in England have UNICEF baby-friendly accreditation, compared with 100% in Scotland and Northern Ireland and 79% in Wales. What plans does the Secretary of State have to increase UNICEF baby-friendly accreditation to all maternity units?
Despite the rivalry that sometimes happens between our nations, I actually have a lot of respect for some of the patient safety initiatives in Scotland, and we will certainly look at this. However, we have what we think is the most ambitious plan to improve maternity safety not just in the UK but in Europe. This is one of those areas that the two countries should work together on.
5. What steps he has taken to increase the mental health workforce in the NHS.
This is the very last one from me, Mr Speaker. We have one of the most ambitious plans in Europe to expand mental health provision. That means that we need to recruit an extra 21,000 posts over the next three years, and plans are in place to do that.
I thank the Secretary of State for his encouraging answer, but what does that mean specifically for mental health provision and funding in the London Borough of Croydon?
My hon. Friend is right to challenge me on that, because we are asking all clinical commissioning groups to increase their funding for mental health in real terms year in, year out. Some 85% of CCGs are doing that, and an extra half a billion pounds reached the frontline of mental health last year. Regrettably, Croydon is not part of that 85%, so I will take his question away and find out exactly what is happening.
How does the Secretary of State expect to achieve the plans to increase the mental health workforce when only last week the head of NHS England, Simon Stevens, said: “On the current funding outlook, it is going to be increasingly hard to expand mental health services”?
It has been challenging to expand mental health services over the past seven years due to the financial pressure on the NHS, but we have succeeded. We have 4,300 more people working in mental health trusts and £1.4 billion more is being spent on mental health than three years ago. We have a plan—it is a good one—and we are going to ensure that it happens.
I am sure that the Secretary of State will welcome the fact that cancer survival rates are at a record high, but will he explain how the Government are going to fund the latest technology, so that we can continue to stay ahead of this terrible disease?
I am grateful for my hon. Friend’s question. As he knows, 150 more people are starting cancer treatment every single day compared with 2010, which is why there are 7,000 people alive today who would not have been if we had the cancer survival rates of five years ago. However, we are still behind western European averages, and we want to do something about that. A big investment in capital equipment for cancer is therefore something that we are prioritising.
Constituents in York who have experienced sexual trauma have no clinical pathway to address their psychological support. Will the Secretary of State therefore take action to ensure that we have a national framework to support women in particular, but also the staff who provide that service?
Such issues are much in people’s minds at the moment, and the hon. Lady makes an important point, so I will take that away with me and come back to her with some thoughts once I have looked into it carefully.
Further to the Secretary of State’s response to the question of my hon. Friend the Member for Liverpool, Wavertree (Luciana Berger), I feel that the Secretary of State is not being clear with the House. Will the extra money that Simon Stevens asked for be in the Budget or not?
I am afraid that the hon. Lady will have to wait until the Chancellor delivers his Budget. There are huge financial pressures on the NHS. We inherited a financial recession but, if she looks at this Government’s record she will see that, unlike her party, we refused to cut spending on the NHS; we are now increasing it.
6. What plans his Department has to improve care for people with lung disease.
Me now, Mr Speaker. Improving care for people with lung disease is crucial to this Government. We do not need reams of new plans or strategies, but continued action to implement existing plans, including the NHS outcomes framework, which details NHS priority areas and includes reducing deaths from respiratory disease as a key indicator. Key initiatives include the implementation of quality standards on idiopathic pulmonary fibrosis, asthma and chronic obstructive pulmonary disease, and a national pilot to improve care of breathlessness.
I thank the Minister for that answer, but I think that more probably still needs to be done. Last month, I launched the British Lung Foundation’s latest report into idiopathic pulmonary fibrosis. Delayed access to diagnosis, support services and care is still commonplace for people with IPF and other lung conditions. Will the Minister agree to meet me and the British Lung Foundation, which is leading a taskforce for lung health, to establish what more can be done to address the issue?
I thank my hon. Friend, who speaks with great passion—I know that she has tragic personal experience. I will be meeting the British Lung Foundation shortly, and I am happy for my hon. Friend to join that discussion or part of it. As I said, one of the NHS’s priority areas, as set out in the outcomes framework, is reducing early deaths from respiratory diseases such as IPF. I understand that the number of cases has risen in recent years, which is rightly a cause for concern. She is right to raise the matter, and I look forward to meeting her.
I have long been a supporter of COPD groups in my constituency in Northern Ireland, but what help is the Minister offering to voluntary groups and families? In particular, what is he offering to the tens of thousands of young children diagnosed as asthmatic to help and assist with their condition?
Respiratory illness affects one in five people in the UK, and it is responsible for around 1 million hospital admissions annually, so it is very much in our interest, as I said to my hon. Friend the Member for Erewash (Maggie Throup), to implement the outcomes framework. I look forward to having further discussions with the hon. Member for East Londonderry (Mr Campbell), and I am happy to meet him if he wishes.
Does the Minister, who cares deeply about these issues, share my concern that lung capacity often never recovers after being damaged in childhood? Is not that a powerful reason why we need to make significant progress on air quality issues?
Absolutely. I have just returned from a meeting of G7 Health Ministers, and one of the subjects under discussion was environmental factors in climate change and its impact on human health. We had challenging discussions on many areas, but air quality and its impact on respiratory disease was not one of them.
I gather the meeting was in Rome. Is that correct?
Milan.
It is always useful to have a bit of additional information, for which the House is grateful.
Under this Government we have seen lung disease admissions to A&E rise at double the rate of general admissions. That is even more concerning when the bulk of lung disease admissions happen over the winter months, when A&E departments are already under significant pressure. Will the Minister commit today to introducing a lung disease strategy to ensure that we can reverse these worrying trends and this pressure on people’s lives and on our NHS?
The meeting was in Milan, Mr Speaker, but we do not mention football in relation to Italy or Milan any more. I hear it is a touchy subject. [Interruption.] Very topical There is no plan for a new national strategy or taskforce, but we work closely with charities like the British Lung Foundation. We have to remain committed to implementing the NHS outcomes framework for 2016-17. As the Secretary of State said, we are better prepared for winter than we have been before, and the hon. Member for Washington and Sunderland West (Mrs Hodgson) is right to raise that point.
7. What recent assessment his Department has made of the effect of the UK leaving the EU on the health and social care sector.
20. What recent assessment his Department has made of the effect of the UK leaving the EU on the health and social care sector.
We are fully engaged with the highest level of Government work on Brexit. My right hon. Friend the Secretary of State is a member of the Cabinet Committee on Brexit, and he is engaged on all areas where Brexit may impact the health and social care sector. We are actively considering the Brexit implications for the UK on workforce, medicine and equipment regulation, reciprocal healthcare, life sciences, public health, research, trade and data.[Official Report, 21 November 2017, Vol. 631, c. 5MC .]
Is the Minister aware of the latest figures released this month by the Nursing & Midwifery Council? The figures confirm a clear trend: an 11% increase in the number of UK-trained nurses and midwives leaving the register, alongside an 89% drop in those coming to work in the UK from Europe. Does the Minister agree with the chief executive of the Royal College of Nursing that “These dramatic figures should set alarm bells ringing in Whitehall and every UK health department”?
It is the case that we have been reliant for much of the increase in clinicians in this country on doctors and nurses coming from the EU, so a reduction in that increase is something we are watching carefully. I gently say to the hon. Gentleman that the last figures we have show that, as of the end of June, there were 3,193 more clinicians working in the NHS in England than there were in June 2016.[Official Report, 21 November 2017, Vol. 631, c. 6MC.]
Brexit may well result in a loss of both rights and funding for people with disabilities, so when will this Government release their full impact assessment of the medical and social care sector?
The hon. Gentleman is looking for answers about social care. The Under-Secretary of State for Health, my hon. Friend the Member for Thurrock (Jackie Doyle-Price), who has responsibility for social care, has made it clear that a paper will be published in due course. I am afraid that the hon. Gentleman will just have to be a bit more patient.
Earlier, my right hon. Friend the Secretary of State made a welcome statement about the contribution of EU citizens to the health and social care sector. Will the Minister kindly advise us on what is being done at a trust level to support overseas workers, both from the EU and elsewhere, to ensure that they feel welcome and are encouraged to stay here as long as possible?
I am grateful to my hon. Friend for giving me the opportunity to reaffirm the commitment of the NHS, from the centre through to every organisation for which EU citizens are working, that these people are welcome here. My right hon. Friend the Secretary of State for Exiting the European Union yesterday made it very clear that we are looking to have a simple, straightforward and cheap means for those who are here at the point of departure to be able to register to stay here. We want to encourage all those who are working for our NHS, wherever they come from, to continue doing so.
During his visit to the hospital in April, the Minister will have seen that Kettering General has a long and proud record of recruiting medical staff from outside the EU, and in numbers. Is it not the case that the NHS has always recruited from outside the EU and will continue to do so after Brexit?
My hon. Friend is right to say that there has been a long-standing tradition of this country welcoming professionals from outside, through various waves of migration that go back several decades. It is important to point out to him that the Secretary of State announced a year ago a 25% increase in the number of doctors in training in this country and earlier this autumn a 25% increase in the number of nurses to be trained in this country, so that we become less reliant on overseas clinicians at a time of a shortage of some 2 million worldwide.
Being a member of the European Medicines Agency has allowed UK patients early access to new drugs, and it also plays a crucial role in quality control and safety monitoring, so what solution has the Department come up with to ensure not only timely access to new drugs after Brexit, but that any complications are spotted early?
As I indicated in response to the hon. Member for Glasgow South West (Chris Stephens), finding an appropriate relationship with the EMA post-Brexit is one of the core strands of work the Department is doing. As the hon. Lady will be aware, next Monday the other EU nations will vote to decide which country will host the new EMA. It is our intent, as we have made clear to the EU negotiators, to seek mutual recognition.
With the World Trade Organisation not having updated its drug list since 2010, all new drugs developed in the past seven years could incur tariffs. What contingency plans have been made to avoid shortages and increased costs in the event of a no-deal Brexit?
As the hon. Lady will be aware, we are looking for a relationship with the EU to ensure that we have tariff-free access to the single market, including for drugs and medicines, because the life sciences industry is such a critical element of our economy. Contingency plans are being put in place for a no deal. She will have to wait, as will the rest of us, to see whether or not that eventuality happens. Of course we do not want it to occur—it is not our intent.
8. What steps he is taking to reduce smoking rates.
Adult smoking prevalence is now 15.5%, the lowest ever. As the House will be aware, in July we published a tobacco control plan for England, which sets out stretching ambitions to reduce smoking prevalence still further and commits us to a series of actions to deliver those ambitions. Our end goal, as we have made clear, is a smoke-free generation.
I thank my hon. Friend for that answer. Does he agree that one of the most effective ways of helping people to give up smoking is the provision of smoking cessation services? In Harrow, the local unit managed to help 4,000 people attempt to give up smoking, with more than 50% doing so, but the answer from the local council has been to close the unit—that is very ineffective. Will he take action to make sure that this does not happen across the country?
My hon. Friend is right to raise the issue. Local authorities, not Ministers in Whitehall, are best placed to take local spending decisions, but they must be accountable for their decisions. That is why we publish information at local authority level on smoking prevalence and quit numbers, so that local decision makers can be held to account. We also offer them expert support from Public Health England. I have a strong feeling that he will continue to hold those in Harrow to account.
21. I am a reformed smoker—it was quite a battle. What proposals do Her Majesty’s Government have to enlist people like me to help other people to kick the weed? We know how to do it.
What a fine role model the hon. Gentleman is.
What an offer, Mr Speaker! Sustainability and transformation partnerships in all areas are to draw up local plans across one NHS area, including on the public health prevention agenda. I suggest that the hon. Gentleman volunteers his services to his local STP; I suspect it will take his hand off.
9. What plans the Government have to improve the availability of access to innovative treatments and technologies in the NHS.
On 3 November, we published our response to the accelerated access review. We set out plans to give patients quicker access to life-changing treatments and to make the UK the best place in the world for industry to invest and innovate. We are delighted that Sir Andrew Witty will chair the group overseeing the accelerated access pathway, which will fast-track around five breakthrough products each year and support adoption and uptake of innovation across the NHS.
The technologies used at the neonatal unit at Aberdeen Royal Infirmary are now considered essential by my constituents in Gordon. The unit serves 500,000 people who live within 90 minutes of Aberdeen. What assessment has the Minister made of the importance of proximity of medical innovations to regional communities?
I am pleased to hear that from my hon. Friend. It is good to know that we are on track to achieve our ambition to reduce the rates of stillbirth, neonatal and maternal deaths and perinatal brain injuries by 20% by 2020. Innovations such as those in Aberdeen have contributed to that work. It is important that our regional communities have access to specialist care of the kind my hon. Friend describes, and we hope to deliver more through the accelerated access pathway.
Is the Minister aware that more than 60% of health innovation research funding goes to the “golden triangle” and less than 13% goes to the north? Given that Manchester and the north-west have a life-sciences hub and that the devolution of health provides great opportunities, is it not about time we got our fair share to ensure that we can close the gap in some health outcomes?
I cannot disagree with the hon. Lady’s point. One reason why we set up the accelerated access review and pathway was to make sure that we invest where innovation is taking place. There is no reason why Manchester cannot be a part of that.
I call David “Top Cat” Davies.
22. Thank you, Mr Speaker. [Laughter.] It goes back a long way, and one day it will be no more.One of the innovative treatments that is being offered in my constituency that concerns me is the use of puberty blockers and hormone replacement therapy for children who identify as transgender. Does the Minister agree that an improvement would actually mean the restriction of such treatments for under-18s?
My hon. Friend makes a serious point. Health is a devolved matter in Wales. The NHS in England has strict guidelines on the prescription of puberty-blocking and cross-sex hormones for youngsters. Such treatments may be prescribed only with the agreement of a specialist multidisciplinary team and after a very careful assessment of the individual. We keep a watching eye on these matters.
Oh, a Liberal Democrat competition. I call Jo Swinson.
Thank you, Mr Speaker A strong UK pharmaceuticals industry is important for ensuring that the NHS can access innovative treatments, but there is uncertainty over whether UK-qualified persons who certify medical products and devices as safe will be able to continue to do so for European countries post-Brexit. This is unwelcome, and risks countries choosing to relocate outside the UK. When will there be clarity about the future European relationships for medical device approval?
I can confirm to the hon. Lady that we have offered mutual recognition. She is right to raise this important subject because it is obviously vital that we maintain safety throughout the NHS, and access to pharmaceuticals is part of that.
10. What discussions he has had with local commissioners on changes to the cost of the contract for musculoskeletal services in Greenwich; and if he will make a statement.
Ministers have held no such discussions. The procurement of local health services by means of competitive tendering is a matter for the local clinical commissioning group, rather than for Ministers. Greenwich clinical commissioning group is an independent statutory organisation and is responsible for commissioning services for local people in order to ensure the best possible clinical outcomes at the best value to the taxpayers, who are the hon. Gentleman’s constituents.
That is an incredibly complacent response. The cost of the contract, which was allocated to a private provider, has gone up by 14% in six months. It claimed at the Greenwich Overview and Scrutiny Committee that that was due to a 14% increase in the tariff costs of health services, but my local health care trust says that that is about 0.6%. How does the Minister explain that increase and why is the Department not looking into these private companies, which are literally naming their price once they have won the contract?
It is not a complacent answer; it is a factual one. That is an important point to make. The Circle contract has been uplifted by approximately £10 million because of the increases in tariff costs, as the hon. Gentleman rightly says. That increase would have been applied to any provider, not just Circle. I am sorry that he does not support the new MS services across his constituency. My understanding is that, previously, those services were delivered by a number of different providers, with a wide variation in clinical outcomes for his constituents, in costs of care and in-patient experience. This is a step forward.
11. What progress he has made on the contaminated blood inquiry and on providing people affected with financial support.
After the Prime Minister announced an independent inquiry into infected blood, the Department of Health consulted on the form of that inquiry. The Cabinet Office updated the House on 3 November, stating that it would be a statutory inquiry under the Inquiries Act 2005, and that the Cabinet Office would be the sponsoring Department. The NHS Business Services Authority started administering the new English infected blood payments support scheme on 1 November.
From April next year, those affected by contaminated blood, including Michael in my constituency of Weaver Vale, could face considerable cuts in their discretionary support as the whole matter is currently under review by the Business Services Authority. Will the Minister give a clear-cut guarantee that absolutely nobody will be left worse off as part of that review?
I can absolutely give the hon. Gentleman that assurance, and that will form part of my statement on the response to the consultation, which we announced earlier. Those discretionary payments will be maintained.
The Minister will be aware that the integrity of blood products is underpinned by a common European agreement on standards. Can she reassure the House that she has spoken to other Ministers across Europe to ensure that, whether or not there is a deal, those standards will be fully maintained subsequent to Brexit?
I can confirm that that is very much part of our current discussions. In truth, those common standards are shared across Europe in any case, and we will continue to abide by them.
12. What the timetable is for the publication of the report of the expert working group on Primodos.
This is an incredibly sensitive subject. The report of the expert working group on hormone pregnancy tests will be published tomorrow. There will be a written ministerial statement with a copy of the report. This follows a rigorous review of all the available data on this subject by a panel with expertise in the relevant fields of science and healthcare.
I welcome the Minister’s statement, although there are some questions about the opaqueness of the inquiry and many other concerns. The lives of my constituents Wilma and Kirsteen Ord and many others have been blighted by the hormone pregnancy drug Primodos. Will he appear in front of the Health Committee, look at the way in which that inquiry was conducted and consider a public inquiry into Primodos so that the families can get truth and justice about how they have been affected by this drug?
I thank the hon. Lady for her question. I am open to offers from any Select Committee. It would be premature to consider issues of liability before considering the strength of the evidence and seeing the report, which we will study carefully. The report will conclude whether there is a causal association between the use of HPDs such as Primodos and adverse outcomes of pregnancy. We look forward to seeing its outcomes and its recommendations.
13. What the timetable is for sustainability and transformation partnerships to become accountable care systems.
There is no fixed timetable for sustainability and transformation partnerships to become accountable care systems. Evolution from an STP into one or more ACSs is dependent on an STP demonstrating that it is working in a locally integrated health system. Both commissioners and providers, in partnership with local authorities, will need to choose to assume collective responsibility for resource and public health, and the criteria for that were set out in NHS England’s next steps in the “Five Year Forward View”.
Last week, NHS doctors took out a judicial review against the Secretary of State’s plans to use secondary legislation to enable private companies to run big parts of the accountable care organisations. I think the Government understand that doctors, nurses, patients and the public want an NHS that is run for the public by the public using public funds. Ultimately, will the Minister ensure that we have time in this place for Members to discuss and scrutinise the ACOs, because they are a drastic change to our NHS?
I can honestly say that the best thing the hon. Gentleman can do to understand what STPs are really all about is talk to the recently appointed chair of the Norfolk and Waveney STP, which covers his local area. He will find that the former Labour Secretary of State, Patricia Hewitt, can give him very good advice.
14. What steps he is taking to tackle inequalities in the provision of dental health services.
NHS England has a duty to commission primary care dental services to meet local need, including for the most deprived groups. Nationally, access continues to grow with 1.9 million more patients seen between 2010 and 2016. The Starting Well programme, of which I am sure the hon. Lady is aware, will work to improve the oral health of children under the age of five in 13 high- needs areas. The dental contract reform programme is also working to improve access and oral health.
Seven people per day in my constituency are going into A&E because of toothache, and the poorest among us are twice as likely to be hospitalised for dental care. Yet there is no mention of dental care in the “Five Year Forward View”, and funding has fallen by 15% since 2010. Why is the Minister leaving my constituents in pain and overburdening A&E by neglecting dental care?
I am interested to hear the hon. Lady say that, because the January to March 2017 GP patient survey results, which were published in July, show that 97% of those trying to get an NHS dental appointment in the Newcastle Gateshead clinical commissioning group area were successful, compared with the 95% England average.
T1. If he will make a statement on his departmental responsibilities.
As well as congratulating the Minister for Public Health on being an excellent ambassador for the United Kingdom at the G7 health summit in Milan, I congratulate Colchester Hospital University NHS Foundation Trust on exiting special measures. It is the 21st trust to do so and was in special measures for longer than any other trust. The fact that it got a good rating for compassion, for the effectiveness of its care and for its leadership is a huge tribute to the hard work of staff.
Back in July, Ministers said that the goal was to ensure that patient access to innovative medicine is well protected “through the strongest regulatory framework and sharing of data.” Therefore, will the Secretary of State confirm that the UK will definitely be signing up to the new clinical trials regulation system, so that pharmaceutical companies do not have to move trials overseas?
That is absolutely our intention. We have signalled to the EU and to European countries that we want the closest possible relationship post-Brexit. We have made that big and generous offer, and we hope that they accept it.
T3. Thank you, Mr Officer Dibble Speaker. In my constituency we have the outstanding-rated Worthing Hospital and some outstanding GP practices, but we also have the Sussex and East Surrey sustainability and transformation plan, which has been rated in category 4 —“needs most improvement”. Part of the problem is that it is too big and does not follow a natural footprint. Will the Minister support local calls for it to be withdrawn, and help to make it fit for purpose and sustainable?
Sustainability and transformation plan footprints were determined as a result of discussions between local areas, NHS England and NHS Improvement. They reflect a number of factors including patient flow, the location of different organisations in the local health economy and natural geographies. We stated in the next steps of the “Five Year Forward View” that adjusting STP boundaries is open to discussions between us and NHS England when that is collectively requested by local organisations, and we mean that.
Last month, Lloyds announced the closure of 190 community pharmacies. The company’s managing director was very clear that this action was a result of recent cuts to pharmacy budgets. Does the Minister have any idea how many community pharmacies are at risk of closure as a result of Government cuts, and what assessment has he made of the likely impact of these closures directly on patients and the wider NHS? Will he join me in asking the Chancellor adequately to fund this vital service?
The hon. Lady will have to wait for the Budget like everybody else. We continue to monitor the market carefully in the community pharmacies sector. Access to pharmaceutical services is very good in England, with 88% of people falling within a 20-minute walk of a community pharmacy. For areas with fewer pharmacies, our access scheme continues to provide additional protection, and a growing number of internet pharmacies also support access, offering patients greater choice. Pharmacies are a critical part of the primary care infrastructure in this country.
T2. A few months ago, Medway hospital came out of special measures, with the improvement to patient safety being one of the most notable highlights in the report. Given the success in my local area, will my right hon. Friend inform the House what progress he is making to boost patient safety across the rest of the country?
I am happy to do that. I had a very good visit to Medway recently, and Lesley Dwyer and her team are doing a fantastic job there. They had real challenges to turn the trust around, but they succeeded, and the staff did amazingly well. However, the truth is that we still have far too high levels of avoidable harm across the NHS. I want us to be the safest in the world. That is why, in the next few months, we will see campaigns to improve maternity safety, to deal with medication error and to improve transparency when there are avoidable deaths.
T5. Could I raise the issue of mesh implants, which has been raised with me by constituents? A report in the United States indicates the associated pain—the headaches and the aches and pains in joints. Are Her Majesty’s Government looking at this issue? Rather than Ministers saying that this is merely a matter for the devolved Administrations, it would be instructive if they could give me an answer, because that would help inform the Scottish Government.
The hon. Gentleman raises an issue that is of concern to many women up and down the country, and no one can fail to be moved by some of the horrendous injuries they experience. We now have 18 centres of specialist care that can treat those women. However, the advice we still receive is that, in some very narrow cases of stress incontinence, mesh remains the best possible treatment. The issue will be kept under review, and my noble Friend Lord O'Shaughnessy is due to meet the all-party group on surgical mesh implants to consider it in greater detail.
T4. The James Paget Hospital at Gorleston, which is doing great work under great pressure, has highlighted the fact that it and the clinical commissioning group have two different regulators. Does my right hon. Friend agree that it would be sensible for one body to oversee both organisations, so as to avoid duplication and redirect funds to the front line?
My hon. Friend makes an important point. We have no plans for legislative changes, but we do want to see closer working between NHS Improvement and NHS England on the ground, so that people working in constituencies and areas such as his get only one set of instructions. We are making good progress.
T7. I have repeatedly asked the Secretary of State, and I ask him yet again, whether he will visit my area to see for himself the damaging impacts that the downgrades and closures of local hospital services in Dewsbury and Huddersfield will have on my constituents.
I am very happy to accept the hon. Lady’s invitation to visit her area, which I will do, but what I know I will see when I go there is that 8,300 more people are being treated within four hours at her local hospital, where there are 42 more doctors and 56 more nurses than in 2010.
T6. May I thank the Secretary of State for all the help he gave with Minehead hospital in my constituency? I am very grateful. However, one problem is that Somerset pays the lowest amount in the peninsula to keep people in homes, and that is putting more people into hospitals. Will the Secretary of State offer some advice on how we can get round this situation?
I am very happy to do that, and it is very straightforward. We listened hard when local authorities said they needed more support for the social care budget. We put an extra £2 billion into it in this year’s Budget. Spending is going up this year by 8.6%, so all local authorities are expected to play their part in reducing pressure on hospitals.
T8. If the Health Secretary does visit Huddersfield and Dewsbury, can I join the party? [Interruption.] I will not spoil his visit. I would like him to meet our local vice-chancellor, who would be very interested in having a teaching hospital in Huddersfield if the money were available to start one up. Will the Secretary of State meet my vice-chancellor when he comes to Dewsbury and Huddersfield?
I met the fellow on 24 June last year. He is a splendid chap.
In principle, I would be delighted to meet the hon. Gentleman’s local vice-chancellor, but I have to tell him that the decision about where the new medical schools will be based will be taken independently of me, because I have a constituency interest in the issue as well.
T9. Rural communities, and towns such as Newark without an A&E, desperately need a high-performing ambulance service, yet East Midlands ambulance service, and services across the country, are generally missing their targets. This is not a new problem—it began with Labour’s disastrous regionalisation of ambulance services—but it needs to end, and improvement is required. What strategy do the Government have to improve response times for ambulance services in the east midlands and across the country?
I am aware that the performance of the East Midlands ambulance service is not what local residents or we would like at present. The strategy that is being adopted is to introduce a new ambulance response programme, and EMAS has an ongoing consultation with staff on introducing new working models to bring that into effect.
The Minister has just said that pharmacies are a critical part of our primary care infrastructure. Does he therefore share my concern that Lloyds Pharmacy has announced 190 branch closures across England due to funding cuts exacerbated by rising drug costs and cash-flow problems? At least two of those are in Hull. Why can 30% of pharmacies in the Health Secretary’s constituency get remedial help under the pharmacy access scheme but only 1.3% of pharmacies in Hull get that help?
The simple answer is that it is because it is a rural constituency. On the Lloyds Pharmacy announcement, when I first heard that news my thought was not to play any politics with it but for the staff who will be affected by it. As I said at the all-party parliamentary group on pharmacy, chaired by the right hon. Member for Rother Valley (Sir Kevin Barron), Lloyds has made a commercial decision. We do not yet know which pharmacies within its portfolio will close, but we do know that 40% of pharmacies are within a 10-minute walk of two or more others.
T10. In December 2014, the Secretary of State said to the Health Select Committee: “There are GPs who prescribe homeopathy and GPs who prescribe acupuncture, but the system we have is that we allow GPs to decide whatever they think is in the clinical interests of their own patients.”Is that still the position? Is the Minister aware of the parliamentary petition in favour of homeopathy that has 22,000 signatures?
Consistency personified, Mr Speaker. It is the responsibility of local NHS organisations to make decisions on the commissioning and funding of any healthcare treatments for NHS patients, such as and including homoeopathy. Complementary and alternative medicine treatments can, in principle, feature in a range of services offered by local NHS organisations, including general practitioners.
What safeguards will the Secretary of State put in place to ensure that NHS trusts do not finance the lifting of the pay cap by making staff cuts, downgrading roles or reducing terms and conditions under the guise of reforms?
NHS trusts are under pressure to make very ambitious efficiency savings anyway. We have listened carefully to their case that they would not be able to make further efficiency savings to finance an increase in pay beyond the 1% cap.
Congratulations, Mr Speaker, on noticing that it is actually me behind this extremely impressive facial growth for Movember, which is a serious cause promoting men’s health, particularly this year with the addition of mental health. In 2015, three out of four suicides were young people, and suicide is still the biggest killer in men under 45. Will the Minister commit to renew this Government’s relentless pursuit of parity of esteem between mental health and physical health?
The Mercer moustache is impressive indeed. I am a big supporter of Movember, because it has a positive mindset—it is very honest. As Movember says on its website, one in eight men in the UK have experienced a mental health problem and, tragically, three out of four suicides are men. So we welcome this campaign this month, focusing as it does on raising awareness of prostate cancer and of testicular cancer—“Check your Nuts”, to stay on message. Movember has also built partnerships with mental health services in the NHS and across the charity sector. I wish my hon. Friend well with his growth.
Will the Department urgently review waiting times targets for children to access mental health services? Even if CAMHS—child and adolescent mental health services—in my constituency achieves its targets, on current referral rates more than 100 children will need to wait more than nine weeks for their first appointment.
The hon. Lady is absolutely right; that is totally unacceptable. Anyone who is a parent would say that it is far too long. That is why we decided to have a Green Paper on children’s and adolescents’ mental health, which we are hoping to publish very soon.
In its annual “State of Care” report, the Care Quality Commission has highlighted that there are 4,000 fewer nursing home beds in England than there were in April 2015. What plans does the Secretary of State have to address the workforce and funding issues that lie behind this? Will he meet me to discuss the situation in my constituency and nationally?
I congratulate my hon. Friend on becoming Chair of the Liaison Committee. Of course, I am always happy to meet her, and the issue that she has raised is very important. Our figures show that the number of nursing home beds, as distinct from the number of nursing homes, is broadly stable. There is real pressure in the market, however, and there are real issues about market failure in some parts of the country, so I am more than happy to talk to her about that.
The south Cumbria area is one of the few places in England where patients who need even the least complex radiotherapy treatment must travel for longer than the maximum 45 minutes recommended by the National Radiotherapy Advisory Group. In NHS England’s consultation, which will close on 18 December, will the Secretary of State make sure that access to radiotherapy within 45 minutes is a key criterion in allocating resources so that Westmorland general can be given its much-needed satellite radiotherapy unit?
I am grateful to the hon. Gentleman for raising that point. We are absolutely aware of the need to have more radiographers and sonographers available to support facilities around the country, and we have currently some 200 radiographers in training. I would like him to write to me so that we can follow up the specific point he makes about south Cumbria.
Local A&Es serving my constituents in Kent now have 24/7 mental health services, thanks to this Government’s determination to improve mental healthcare. Can my right hon. Friend assure me that the Government will fulfil their commitment to increase mental health spending by at least £1 billion by 2020?
We are absolutely committed to that. We are spending around £1.4 billion more than we were three years ago, and there is more that we need to invest. I am pleased that my hon. Friend mentioned crisis care, because for people who believe in parity of esteem, ensuring that people can get help in a mental health crisis as quickly as they could go to A&E for a physical health crisis is one of the big gaps that we have to fill.
I know that the Secretary of State will have been impressed by and enjoyed his visit to Whiston and St Helens hospitals. I am very proud of the collaboration between St Helens Council, the CCG and the hospitals, but additional resources are needed. The Secretary of State will see the good use that is made of those resources, but we cannot deliver everything that is required without that additional push of resources. Will he help us, please?
I recognise the picture that the hon. Lady paints. I did have an excellent visit to the hospitals, and they are doing some fantastic work on patient safety. Collaboration between the partners in the local health economy is much better than it has been, but there are financial pressures. We are going to have a million more over-75s in this country in 10 years’ time, and that is why we have committed to increasing the resources going into both the NHS and the social care system.
The NHS sustainability and transformation plan review in my region recently recommended that all acute services be maintained at North Devon District Hospital. That was a very welcome decision and a victory for the community. Will the Minister work with me and local NHS managers to ensure that the clinical need that has been identified can be fully met?
I share my hon. Friend’s ambition. I greatly enjoyed visiting his hospital in Barnstaple during the summer, and I have been impressed by the way in which the four trusts in Devon that provide acute services have decided to come together and provide a collaborative pool of, in particular, emergency department staff to ensure that each hospital is adequately covered and there is continuity of service. I think that is a model that we can adopt elsewhere.
The Health Committee heard that to obtain a diagnosis of autistic spectrum disorder, many struggling children and families face a postcode lottery. Will the Department seek to publish baseline data so that we know where trained clinicians are positioned across NHS England, to ensure that workforce planning is undertaken appropriately?
I give the hon. Lady an assurance that we will be publishing those data in the new year. It is important that we work hard to make sure that people with autism get a timely diagnosis. That means that we are working to get referrals seen more promptly, while recognising that to give a full diagnosis will take some time.
Recruitment and retention is just one reason why United Lincolnshire Hospitals Trust is currently going through the special measures process. Will the Secretary of State join me in paying tribute to the staff in Lincolnshire, and does he agree that part of the challenge that the trust faces on recruitment and retention will be solved by the establishment of a medical school in Lincolnshire?
If I may say so, that question was absolutely beautifully put. I do congratulate the staff. I have met the staff of Lincoln hospital, although I have not been to all the hospitals in the trust, and it is very nice to see the hon. Member for Lincoln (Ms Lee) in her place. Wherever the new medical schools eventually end up, one of the key priorities will be their ability to get more doctors from areas where we are struggling to recruit.
Order. We must now move on.
I beg to move, That leave be given to bring in a Bill to prohibit charging for car parking at NHS hospitals for patients, staff and visitors; and for connected purposes The Bill will give peace of mind to patients and visitors when they need it most and support our hard-working doctors, nurses and other NHS staff who are struggling with the cost of living. It is time to end the hospital car parking rip-off once and for all. These parking charges are the bane of people’s lives. No one goes to hospital out of choice; they go because they must. No one chooses to be ill, and we rely on our doctors and nurses to look after us The sick and vulnerable are disproportionately hit, particularly those with long-term and severe illnesses that require repeated and lengthy stays in hospital. Research has shown that cancer patients and parents of premature babies face the greatest financial consequences. CLIC Sargent, the UK’s leading cancer charity for children, has told me that some families are spending £50 a week when their child is having treatment. Bliss, the UK’s leading charity for babies born premature or sick, has also carried out research: while some babies stay in the neonatal unit for only a few days, some parents have to pay over £250 if their baby stays in the neonatal unit for eight weeks In addition, there is clear public support for the abolition of hospital car parking charges. Over the past few days, a Fair Fuel UK poll has received almost 9,000 responses. It finds that 95.5% of respondents want hospital parking charging scrapped or set at a maximum of £1; only 3.4% want them to remain as they are Much of the hospital workforce cannot rely on public transport to get to work, particularly if they are working shifts at unsociable hours. Many have no choice but to use hospital car parks. While all hospitals seem to offer a discounted parking scheme based on pay band or salary, or allocate a limited number of discounted staff places, doctors and nurses are charged to work unsociable hours at a time when everyone is facing economic difficulties The hon. Member for Kingston upon Hull West and Hessle (Emma Hardy), who is a sponsor of the Bill, was told by hospital staff that they cannot afford the charges for hospital car parks and are parking on unfit nearby streets, which leaves them vulnerable when leaving work late at night. If we value our hospital staff—the nurses, the porters, the cleaners, the occupational therapists, the doctors, the consultants—we should allow them free parking I started the campaign for free hospital parking in 2014, after finding out that hospitals in England were charging staff and visitors up to £500 a week to use onsite parking facilities. There was—sadly, there still is—a postcode lottery on car parking charges, with hospital trusts setting widely different fees. Given that Scottish hospitals offer free parking, these charges seem even more unreasonable. As a result of my campaign, the Government introduced guidance, for which I condemn—I should say, I commend —Health Ministers. The guidance urges hospitals to cut their parking fees. Among other recommendations, it suggests: “Concessions, including free or reduced charges or caps, should be available for” staff working unsociable shifts, blue badge holders and visitors of gravely ill relatives, but none of the guidance is mandatory. The guidance also says: “Charges should be reasonable for the area.” So patients and staff living in London and the south-east are charged the most, which encourages the postcode lottery Despite the Government’s efforts and that guidance, there has been little improvement. Since the guidance was introduced on 23 August 2014, weekly hospital car parking charges have fallen, but the average cost to park for a week at a hospital in England is still £53.41, and people pay, on average, £1.98 for a one-hour stay. In addition, 47% of hospitals in England have increased their charges per hour since the guidance was introduced. One hospital in Surrey, for example, charges £4 an hour for parking—the highest cost in England. The worst examples of high hospital car parking fees can be found in London and the south-east. The average one-hour cost in London is more than £2, and a trust with hospitals in central London charges more than £260 for a week of parking Almost half of hospitals offer no concessions for disabled drivers. Of those hospitals that do offer free parking for blue badge holders, about 40 do so with a condition attached. It may be limited to a number of bays or it may be time limited, as with Conquest Hospital in East Sussex, which offers up to three hours. Blue badge holders have no choice but to park nearby, and almost half of hospitals charge them to do so. The NHS is therefore not free of charge, and the previous guidance has clearly not worked. That is why I am promoting this Bill Some hospital trusts do provide free parking, including those in the Northamptonshire Healthcare NHS Foundation Trust and the Leicestershire Partnership NHS Trust, which proves that it is possible to deliver free parking for patients, visitors and staff The Government have previously stated: “Providing free car parking at NHS hospitals would result in some £200 million per year being taken from clinical care budgets to make up the shortfall.” On the assumption that free hospital car parking would cost £200 million a year, a number of funding options should be considered. Hospitals have immense purchasing power. Lord Carter has found that better procurement would bring in more than £1 billion. Hospitals across the country pay completely different prices for the same goods. The Department of Health financial accounts for 2016-17 show that it underspent its revenue budget last year by £560 million, which is about 0.5% of the total budget. Surely some of that money could go towards covering the parking costs for patients and staff, and better procurement could help raise the money to pay for the car parking charges. Hospital car parking charges are a stealth tax on the NHS. We cannot say in good faith that the NHS is free at the point of access, paid for by general taxation, if people with cars face extortionate and unfair parking fees to get to their hospital appointments, to go to work at our vital public services or to visit sick relatives. It is wrong to tell one group of people that they have to pay and that everyone else can have something for free. The charges penalise the most vulnerable in our society at a time when they most need support I am proud to say that this Bill is supported by Members on both sides of the House, including esteemed colleagues such as my hon. Friends the Members for Telford (Lucy Allan) and for Filton and Bradley Stoke (Jack Lopresti) and others who in 2015 promoted a Bill to abolish parking charges for carers. My Bill has their support because staff should not have to worry about excessive fees if their shift overruns or about the cost of living instead of concentrating on patient care. Visitors should not have to worry about topping up the meter, to stay at the bedside of sick relatives. Most importantly, patients should not have to pay to access the hospital treatment they need.
I rise in trepidation, because this is a popular and, certainly at a superficial level, well-thought-through Bill. However, if one considers it at a deeper level, one finds that it needs to be opposed. I say from the outset, given that we are going to be here until midnight anyway, that I do not think it would be beneficial for the House to divide on it I am concerned about the funding stream. My right hon. Friend the Member for Harlow (Robert Halfon) mentions £200 million—it is certainly more than the £162 million mentioned elsewhere—so that funding gap would need to be addressed. If we have £162 million or £200 million extra, we would be better spending it on hospital care rather than hospital parking I am concerned that capital expenditure will not be found to provide more parking spaces. There will be no capital expenditure because there is no revenue associated with it. I am concerned about transitional relationships. What happens in cases where existing car parks are being built and a revenue stream is anticipated? I am concerned that this will break the fundamental basic economics of supply and demand: as demand increases, there will be no market mechanism to enable more car parking spaces in the future. The Bill is a popular move—it would be popular with my constituents—but the responsible thing to do is to say, in this House, that the plan is flawed Question put and agreed to. Ordered, That Robert Halfon, Lucy Allan, Frank Field, Jeremy Lefroy, Martin Vickers, George Freeman, Jack Lopresti, Mrs Pauline Latham, Emma Hardy, Sir Mike Penning and Julie Cooper present the Bill Robert Halfon accordingly presented the Bill Bill read the First time; to be read a Second time on Friday 16 March 2018, and to be printed (Bill 125).
I beg to move, That this House has considered the systemic issues enabling tax avoidance and evasion uncovered by the Paradise Papers The actions and the culture of powerful large corporations and of the wealthiest in our society, as revealed in the Paradise papers, constitute a national and international disgrace. What we have learned is that tax avoidance is not just a trivial irritant practised by a small number of greedy individuals and global corporations; it is the widely accepted behaviour of too many of those who are rich and influential. It is clearly taking place on an industrial scale and it has become a scourge on our society. The Paradise papers reveal the enormity and scale of the problem and that is what makes this emergency debate on the issue so important Our debate is also urgent and timely because the Chancellor, who sadly is not in his place to hear the debate, is putting the finishing touches to his Budget. I hope that he will read very carefully the views expressed today by Members and reflect them in the proposals he brings to us next week.
There is no such thing as a magic money tree: that is what the Prime Minister told a nurse who had not had an increase in eight years. Does my right hon. Friend agree that there is, and that they grow on the Cayman Islands, in Bermuda and Jersey; and that were the ill-gotten gains salted away by tax dodging to be picked and put into our public services, police officers and teachers would not be facing the sack and we would not be facing a crisis in the health service?
I completely agree with my hon. Friend’s remarks, which are very pertinent to what we will be discussing in the debate Paying tax is an essential part of the social contract into which we all enter as members of a community. As members of society, we agree to abide by a set of rules and regulations that make all our lives better. One of those rules is that we agree to contribute through taxation into the common pot for the common good.
I would like to ask the right hon. Lady why her family firm, Stemcor, is famous for paying virtually no tax.
I am really pleased the hon. Gentleman has given me the opportunity to explain the circumstances to the House. My father and his cousins were refugees from Germany. My father was then a refugee from Egypt, so he was a double refugee. I remember as a child that he often said to me, “You will never feel safe in this country. Always have your suitcase ready.” He did keep money abroad. When we discovered that after he died, we closed those funds and put them into a charity The level of taxation and who pays is decided by us here in Parliament through our democratic processes. That is how we create a system that is democratic and trusted by all. When a minority choose to ignore and deliberately bypass our rules and regulations and get away with it, they undermine confidence in the fairness of the system. Some people and some Members claim that tax avoidance is okay because it is lawful. Indeed, one of the Government’s Ministers from the other place, the noble Lord Bates, said on Monday that tax avoidance “continues to be part of the international system and we recognise and value it.”—[Official Report, House of Lords, 13 November 2017; Vol. 785, c. 1611.] He and others are simply wrong, and they misunderstand the issues. Her Majesty’s Revenue and Customs’ own definition of tax avoidance is clear: “Tax avoidance involves bending the rules of the tax system to gain a tax advantage that Parliament never intended. It often involves operating within the letter, but not the spirit of the law.” Those are the words of HMRC. Even it says that tax avoidance is wrong.
Does the right hon. Lady agree that a feature of a strong tax system is having a proper network of HMRC offices, and that centralisation and the closure of offices such as the one in my constituency is a disgrace that will do nothing to help the situation?
I agree with the hon. Lady that resourcing HMRC is absolutely central to the fight against tax avoidance and evasion Tax avoidance is completely different from tax planning, whereby, for example, Parliament intended to encourage people to save for their pension by introducing ISAs with tax breaks. Tax avoiders, on the other hand, thwart the intention of Parliament. Their action means our collective will is ignored. We should not tolerate it and we must act urgently to eradicate it.
Does my right hon. Friend agree that one of the best ways of trying to deal with this increasingly serious issue is to have openness and transparency in all funds held offshore, so that those who are doing this have to face the legitimate scrutiny of taxpayers in this country?
My hon. Friend makes an absolutely central point to what we will be asking for today Not only does the behaviour of a few damage trust in the system as a whole, but it damages the public services our taxes are used to fund. At a time when the NHS is under such pressure, when public sector workers have had their wages held down for years and our schools are struggling to deliver the best start for all our children, for the super-rich and the powerful to think that they can opt out of their duty to contribute fairly through paying taxes is completely and utterly and totally immoral and wrong, and it is our responsibility to put an end to it.
I have been very helpfully provided with some facts that I think should be put to the House. I am told that since 2010 the Government have secured £160 billion from tackling avoidance, evasion and non-compliance and £2.8 billion from offshore tax evaders, and invested £1.8 billion in Her Majesty’s Revenue and Customs to tackle avoidance and evasion. I am very proud of this record. Does the right hon. Lady agree that it is an excellent record from a Conservative Government? How does it compare with the record of the Labour Government that she has always been so keen to support?
I hope that the right hon. Lady will listen to the whole of my speech. I think she will acknowledge, as we move forward, that a little progress has been made but not enough. I agree that the previous Labour Government’s record on tackling tax avoidance was not as good as I would have wanted, but the record and actions of this Government are inadequate and somewhat hypocritical. Their rhetoric is mostly fine, but the reality is badly wanting.
When ordinary people hear the Budget next week and have to think about their taxes against the background of inflation in food prices, will they not wonder why the Members opposite are hellbent on avoiding any inquiry into aggressive tax avoidance?
I agree entirely with my hon. Friend. Indeed, I was about to say that those who pay their taxes are completely fed up. By 8 o’clock this morning, nearly 156,000 people had signed a petition going to the Prime Minister. This is an issue that angers people across the country, men and women, supporters of all political parties, people of all ages and people in every income group.
Obviously the right hon. Lady is making a very good point—everybody wants tax evasion clamped down on—but I, too, have some statistics. The Government have invested £1.8 billion in HMRC to tackle tax avoidance and reduced the tax gap by 2% more than Labour did. We are on the right track.
If the hon. Lady looks at the HMRC figure on the tax gap, which is about £34 billion to £36 billion, and then at the figure that tax campaigners talk about, which is a gap of £120 billion, I think she will share my determination to see much more action to deal with this ill in our society.
I congratulate my right hon. Friend on securing this debate. Does she share my concern about the complacency being shown today? Cutting down on global tax abuse clearly requires international co-operation. As we exit the EU, does she share my concern that this ambition not be damaged by our exit but be strengthened by our actions domestically and internationally?
I completely concur with my hon. Friend’s important remarks It is our job, as the elected representatives of those who are angry, to do what we can to put a stop to tax injustice. Tax avoidance should be not an issue that divides us, but one on which we work together in the interests of all taxpayers and in order to protect our public services. The Paradise papers are the latest in a series of leaks unmasked by the international press. I salute the professional investigatory journalists involved in making sense of the millions of documents passed to them, especially those at The Guardian and on “Panorama”, who have been working on the papers for a year, and I salute the public-spirited courage of the whistleblower who first passed the papers to the German newspaper, the Süddeutsche Zeitung. The Paradise papers contain 13.4 million files from just two offshore providers of tax advice and the company registries of 19 tax havens. The scale of the data is what makes the leaks so important We have had the Panama papers, the Luxembourg leaks, the Falciani leaks, the so-called Russian and Azerbaijani laundromat revelations on money laundering, and now we have the Paradise papers. We will continue to see new leaks splashed over our papers and filling our television screens until the Government act firmly to clamp down on the avoidance that is so blatant and yet so wrong.
The right hon. Lady has said several things I agree with—for instance, that everybody should pay their fair share into the tax system, which helps fund our vital public services, and that everyone should work together on tax avoidance—but, given that, does she not feel ashamed at her party’s actions to block steps, before the election, that would have reduced tax avoidance?
I am trying not to make this overly partisan, but I feel more ashamed, as a Member of Parliament, at the hon. Lady’s party’s reluctance to adopt the clear and simple measures that could really tackle tax avoidance.
I want to make some progress, because a lot of people want to speak in what is a two-hour debate Last week, our papers were filled with scams and scandals concerning celebrities, from the self-appointed philanthropist Bono to the popular actors in “Mrs Brown’s Boys”: stories that tainted the reputation of our much-loved royal family; revelations about establishment figures in politics, such as Lord Ashcroft and Lord Sassoon; and further evidence that corporations such as Apple deliberately establish artificial financial structures that have no other purpose than to avoid tax. I want to focus, however, on the systemic issues that these stories illustrate. It is the systemic issues that we need to consider if we are to make progress I will start with two comments arising from what we have learnt from the Paradise papers—observations that help us to understand what is wrong with our system. Appleby, the firm of lawyers at the heart of the Paradise papers, is one of the few offshore law practices that belong to the “offshore magic circle” of service providers. Indeed, Appleby was named offshore firm of the year by “The Legal 500” in 2015. Yet the Paradise papers reveal that the firm was criticised no less than 12 times over a 10-year period in reports issued by regulators in UK tax havens: the British Virgin Islands, the Isle of Man, the Cayman Islands and Bermuda Appleby was criticised for its failure to comply with regulations designed to stop the funding of terrorism and prevent money laundering. The reports talked of “persistent failures and deficiencies”, “severe shortcomings” and “a highly significant weakness in the adequacy of the organisation’s systems and controls and a deficiency in meeting its regulatory requirements.” Further documents reveal that Appleby simply ignored these critical reports and failed to change its procedures, despite strong words from the regulatory bodies. Even the authorities on the British Virgin Islands found, after an inspection of Appleby, that the firm had “contravened financial services legislation…the anti-money-laundering code of practice 2008 and the anti-money-laundering regulations 2008” and had “severe shortcomings with a majority of the legislation, with prudential standards and good practice requirements not being met.” Our regulatory frameworks are so weak that law firms can ignore or break the law with complete impunity. It is hopeless having self-regulation, national and international codes of practice and regulatory bodies with legal powers, if in practice they fail to secure compliance and good behaviour. The lawyers clearly just did not give a damn, and nobody held them to account.
The title of this debate is “Tax Avoidance and Evasion”. I thought I understood the distinction between the two, but I feel the line is being blurred. How does the right hon. Lady understand the distinction between avoidance and evasion?
I agree that the line is extremely blurred. Schemes put forward as legitimate tax avoidance are frequently found to be unlawful when HMRC finally catches up with them. It is difficult to make distinctions Worse than that, Appleby helped to co-ordinate a well-funded and comprehensive lobby by the International Financial Centres Forum before a G8 summit that David Cameron chaired in 2013. The then Prime Minister had intended to insist that the UK’s tax havens publish public registers of beneficial ownership in their jurisdiction. Had David Cameron had his way, we might not be here today, but the IFCF lobbied fiercely to maintain secrecy. It lobbied the right hon. Member for South West Hertfordshire (Mr Gauke), the then Exchequer Secretary, it lobbied the permanent secretary at the Department for Business, Innovation and Skills, it lobbied the senior official who was then director of the UK’s G8 presidency unit, and it succeeded in weakening David Cameron’s commitment to transparency.
I thank my right hon. Friend and neighbour for giving way. Is not the fact that the vast majority of these tax havens are British overseas territories the key question, and is it not time that this Government—or any other Government in the country—took seriously the fact that those places are not doing what is in the interests of British people all over the world?
It is also not in the interests of the many developing countries that lose more tax through tax avoidance than we do in proportion to their budgets.
The right hon. Lady’s central contention is that those territories should publish open registers of beneficial ownership. First, does she acknowledge that the United Kingdom is now one of the only countries in the world to do so, as a result of action by this Government? That was a huge achievement on the UK’s part. Secondly, in an international context, virtually no other major developed country in the world has done it. The state of Delaware, in which 90% of US corporations are registered—
Order! When I say “order”, the hon. Gentleman must resume his seat. I do not wish to be unkind to him. He is always very fluent, but he usually takes too long, and that was not just too long; it was far too long.
I simply observe that the UK also has responsibility for the overseas territories and Crown dependencies, and I wish that its own tax code did not contain so many harmful elements that encourage tax avoidance Appleby’s lobbying illustrates another continuing problem. The Treasury, and other Ministers and Departments, listen only to a very small and exclusive group of tax professionals when making decisions on tax policy. It is one thing for the Government to consult stakeholders on issues, but it is quite another for the Government to be captured by the tax industry at the expense of the wider public interest. Tough and active regulation of the industry to ensure compliance with existing rules is therefore vital. Curtailing the influence of tax professionals on tax policy is essential, and making the advisers accountable for the schemes that they invent and market is central to the campaign to destroy tax avoidance The measures in the Finance Act 2017 represent one small step in the right direction of holding advisers to account, but the small print suggests that very few, if any, will be caught by the legislation. The definitions are too narrow, and the penalties too weak. Those measures have been introduced so that the Government can claim that they are acting, but until advisers are really called to account and properly punished for inventing schemes that are purely aimed at avoiding tax, the army of lawyers, accountants and bankers will continue to prosper. If the Government are serious about tackling tax avoidance, they must act strongly to deal with the illegitimate practices of those who make a huge living from peddling tax avoidance advice.
My right hon. Friend is making a powerful case. Does she agree that the approach of the prosecuting authorities in this country must also be improved? It is striking how seldom they proceed with the legislation that we introduce.
I entirely agree. I must now make progress, because otherwise I shall take up too much time More than half of the Appleby offices are located in British tax havens. More than half of the entities that were exposed in the Panama papers were incorporated in just one UK tax haven, the British Virgin Islands. Estimates of the wealth held in tax havens are by their nature difficult to verify, but they vary from $7.6 trillion to $32 trillion.
Will my hon. Friend give way?
I will, for the last time.
Does my right hon. Friend agree, in the light of what she has said, that Britain has a unique leadership role? Developing countries lose income amounting to between $100 billion and $160 billion a year. Imagine what we could do to tackle poverty if that money were available.
I completely agree with my hon. Friend’s very powerful point Unbelievably huge sums of money are hidden in these jurisdictions. It is impossible to measure accurately how much tax is lost through the presence of tax havens, but it runs into hundreds of millions of pounds every year. We do know that developing countries lose three times as much in tax avoidance as they gain from the global investment in international aid. Our tax havens, acting as secret, low or no-tax jurisdictions, are utterly central to much of the tax avoidance. We cannot continue to pretend that we are leading the international fight against tax avoidance and evasion when, by what we do and what we fail to do, we allow avoidance to prosper; and not just tax avoidance, but money-laundering, corruption, bribery and other financial crimes, which prosper through the secrecy that we allow to prevail. Our failure to tackle our tax havens, our weak regulatory regime and some of our tax rules means that we are now seen as the country of choice for kleptocrats and criminals as well as tax avoiders and evaders, as they seek to hide their money and minimise their tax bills We need our Government to hold to the commitments made by the Prime Minister and the Chancellor in 2013 and 2014. They understood that transparency was the key ask. We need public registers of beneficial ownership, showing who owns what and where. That, at a stroke, would undermine so much. Would Bono have invested in tax havens if he had thought that we would all know? Would Lewis Hamilton have created a complex structure of companies to avoid VAT? Would the actors in “Mrs Brown’s Boys” have hidden their earnings in artificial financial structures if they had thought that we would find out? The answer is no David Cameron understood that when he told the UK tax havens to rip aside “the cloak of secrecy” in 2013, when he urged them in 2014 to consult on a public register that was “vital to meeting the urgent challenges of illicit finance and tax evasion”, and when he proclaimed in 2015 that “if we want to break the business model of stealing money and hiding it in places where it can’t be seen: transparency is the answer.” However, in the last two years the Government have fundamentally watered down that commitment to public registers in British tax havens, and now we hear Ministers say that we must wait for other countries to go first. The proper call for international action on transparency has become the lame excuse for inaction in our own territories We should lead by example. We should demonstrate that transparency can and does change behaviour. We should compel our overseas territories and Crown dependencies to publish public registers. In the past, a Conservative Government used their powers to outlaw capital punishment in our Crown dependencies and overseas territories, and a Labour Government used the same powers to outlaw discrimination against gay people. Today we should work together to outlaw the secrecy of those jurisdictions, which leads to such massive tax injustices The Paradise papers show us that the problems created by secrecy are much bigger and more complex than we ever thought possible, and that is why we need to legislate for transparency in our tax havens. We should help them to transform their economies, so that they stop depending on hidden wealth, unsavoury people, and questionable financial practices. I cannot think of one good reason for us not to do that, and to do it now. Indeed, there is more that we can do, right now: it simply requires the Government to have the necessary political will. They will certainly have the support of the whole House, and the whole country, if they demonstrate by their actions, not their words, that they will work to stamp out tax avoidance We can and should now implement the legislation requiring multinational companies to report their activity and profits on a country-by-country basis—legislation successfully steered through Parliament by my right hon. Friend the Member for Don Valley (Caroline Flint). We can and should also introduce immediately the public register of property ownership that was enacted before the general election, promoted by Transparency International and Global Witness and supported by members of the all-party group on anti-corruption. Nobody knows why this legislation has not been implemented; it is a key element in the fight against corruption, avoidance and evasion. We can and should properly resource HMRC now so that it has the capability to pursue all who seek to avoid paying tax, not just the small businesses who form an easy target that can be hounded with little effort. Every £1 invested in HMRC enforcement yields £97 in additional tax revenues. It is a complete no-brainer that we should be strengthening HMRC and reversing some of the cuts The Paradise papers have helped place tax avoidance back at the heart of the political agenda and back at the top of the list of public concerns. The Government need to grasp this moment to act. They have an opportunity to do so in next week’s Budget. Britain will never get rich on dirty money, and our public services cannot function if the wealthiest individuals and the most powerful companies deliberately avoid paying their fair share towards the cost of those services. And this Government will not be forgiven if they fail to heed the lessons we can all learn from the Paradise papers. Proper transparency will come. The Government can choose whether they lead the changes needed or whether they want to be dragged kicking and screaming into implementing essential reforms. I hope they will listen, learn and act.
I congratulate the right hon. Member for Barking (Dame Margaret Hodge) on securing this important debate. She has been a vigorous campaigner on these issues over many years, and has certainly been very active in the last week; I responded to an urgent question and there was an Adjournment debate in respect of the Isle of Man last week, and now we have this debate as well. The right hon. Lady said that tax and tax avoidance was one of those matters that should not divide us. I agree, and it seems to me that in the various iterations of this debate that she and I have held across this Dispatch Box there is a great deal on which we can be united rather than divided; I am thinking not least of the shared view across this House—certainly on my side of the House—that aggressive tax avoidance and evasion are utterly wrong. They are wrong for the reasons that the right hon. Lady has given: those who pay their tax fairly should not be penalised by virtue of the fact that some do not pay their tax fairly We also know, as the right hon. Lady pointed out, that tax is necessary to fund our vital public services. It is therefore entirely wrong that those who aggressively evade or avoid tax put pressure on our public services—on our NHS, our doctors and our nurses.
Under the last Government, the former Prime Minister David Cameron appointed an anti-corruption tsar. Who is the anti-corruption tsar under the current Government?
I will get back to the hon. Lady on that We know that tax is important for our public services, and we know, as the right hon. Member for Barking rightly stressed, that it is important that the Government act, and be seen to act, when we come across aggressive tax avoidance and evasion. As my hon. Friends on this side of the House have eloquently pointed out, we have a very strong track record in that respect. We have raised £160 billion in additional revenues as a consequence of clamping down on tax avoidance, evasion and non-compliance since 2010. We have also brought in £2.8 billion by tracking down those who have sought to inappropriately hide their finances in overseas tax jurisdictions. We have brought in £28.9 billion in additional compliance yield in the last 12 months alone, too The right hon. Lady is rightly critical of the performance of the last Labour Government; she raised that this afternoon and raised the same point in last week’s Adjournment debate. The tax gap is the difference between what we could potentially bring in by way of tax and what we actually bring in, and it currently stands at 6%, which is a historical low—a world-beating figure. If the average tax gap today was the same as under the last Labour Government, there would be £45 billion less in our Exchequer—£45 billion not there for those vital public services that the right hon. Lady is keen to discuss.
On the Government’s record, can the Minister confirm that HMRC informed the Public and Commercial Services Union that in 2017 the equivalent of 17,000 years of staff experience is leaving the department? How will that help the Government’s record going forward in dealing with tax evasion and avoidance?
I am pleased that the hon. Gentleman has raised the issue of investment in HMRC, because we have a very good record in that respect. Some £1.8 billion of additional money has been invested in HMRC since 2010, of which £800 million will relate to the period after 2015, bringing in £7.2 billion by 2020-21. We will also be trebling the number of investigations of the wealthy to ensure they are paying their appropriate level of tax, as a direct consequence of all that additional investment.
Will the Minister please explain to the House why only 420 HMRC staff are engaged in chasing tax avoiders and evaders, yet 10 times that number of civil servants are engaged in addressing benefit fraud in the Department for Work and Pensions?
I challenge those figures: a far larger number than the hon. Gentleman suggests are engaged in clamping down on tax evasion and avoidance. About 50% of the 2,100 largest corporations in this country are under investigation at any one time—not necessarily because they have done anything wrong, but because they have complex tax affairs. So we are investing in that.
Can the Minister confirm to the House that he answered a question to me yesterday by saying that 522 employees were in the high net worth unit on 31 March 2017, and that that compares with 4,045 full-time equivalents in DWP chasing social security fraud?
This Government have an exemplary record on the tax take from the wealthiest in this country. The wealthiest 1% pay about 28% of all income tax. Under the last Labour Government that figure was below 24%, so I will not take any lectures from the Opposition parties on this.
The Minister is right to point out that HMRC does a very good job on the collection of tax in this country, but that does not mean it cannot do better. Does the Minister agree that the tax take is based on what we think should be paid in tax, and it does not deal with the Googles, Amazons, Starbucks and others who hide their tax away and are therefore not computed into the actual tax we should take and therefore the figures for a tax gap?
I am pleased that the right hon. Lady has raised this issue, because the robustness of this tax gap figure is extremely high. The International Monetary Fund says it sets one of the highest standards in the world. The figure is audited and agreed by the National Audit Office and is made public in HMRC’s annual report and accounts.
The Minister rightly talks about the need for the wealthiest to pay their fair share. Does he agree that one of the most obscene things under the last Labour Government was the fact that cleaners were having to pay more tax than the hedge-fund owners who employed them? It was a Conservative Government who closed that so-called Mayfair loophole.
My hon. Friend is entirely right. It is this Government, for example, who raised the personal allowance to £11,500, taking 3 million to 4 million of the lowest paid out of tax altogether. It is this Government who brought in the national living wage, and it is this Government who will go on ensuring that those who have the broadest shoulders pay their fair share of tax.
Does the Minister agree that HMRC would serve the Government and the people of the United Kingdom better by challenging those who bend the rules rather than by fining my law-abiding constituent, Sheila, £1,600 for a £135 yearly tax bill, when all that she had failed to do was to press “enter” at the end of the form?
The hon. Lady raises an important point There is an assumption on the Opposition Benches that nothing is being done about these various issues. The right hon. Member for Barking referred to an element of the “Panorama” programme on the Panama papers that described income that had been diverted overseas and then loaned back to individuals. That is known as disguised remuneration. She rightly asked what the Government were doing about such practices. Let me point her in the direction of the Finance Bill that has just gone through this House. On the matter of disguised remuneration, individuals will be given until 2019 to clear up those arrangements. Otherwise, they will pay a penalty. It is as simple as that.
Will the Minister give way?
I want to make just a little more progress, as I am conscious of the time and the shortness of the debate In fact, we have brought in 75 measures since 2010 to clamp down on these practices. A further 35 will come in from 2015, raising £18.5 billion by 2020-21. One of the problems is that we have been so active in bringing in so many measures that, unfortunately, not all of them have been noticed. In last week’s debate, the right hon. Member for Barking raised the issue of taking action against those who promote tax avoidance schemes. Once again, she needs only to look at the Finance Bill—all 777 pages of it; it is very technical, and it will probably put her to sleep at night—in which she will find measures to deal with precisely what she was urging us to take action on last week. We have already done it!
I congratulate the Government on the specific changes they have made, but does the Minister agree that the biggest change has been the general anti-abuse rule? That catches a number of these schemes and allows Governments to look not only at tax avoidance, through tax planning, but at what he describes as aggressive avoidance, which therefore becomes evasion, which is illegal.
My hon. Friend is absolutely right. The general anti-avoidance rule has had a significant impact. It was brought in under this Government and it has been very effective. The Opposition profess the importance of all these measures, some of which have already been brought into law while they are calling for them. There is a certain irony in the fact that, when it came to the Third Reading of the Finance Bill that brought these measures in, the Opposition voted against it.
The fact remains, though, that there is at least £30 billion of uncollected avoided or evaded tax; that figure could be as high as £120 billion, if we are to believe the Public and Commercial Services Union. Given that tax officers gain a significant tax return to the Treasury against their salaries, would it not be better to invest in tax officers rather than cutting their numbers, and to go after that multi-billion pound tax gap?
Going after the tax gap is exactly what this Government are doing, and we have an exemplary record. We have the lowest tax gap in the entire world. It is the lowest in history—far lower than it was under the last Labour Government. The hon. Gentleman asked a specific question about tax officers. We need to move towards an HMRC that is ready and equipped for the 21st century. That does not mean a large number of scattered offices; it means hub offices with the necessary staff and technical skills to facilitate the transfer of knowledge and understanding in order to move forward.
rose—
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I will now make some progress. I am aware that this is just a two-hour debate and that many Members wish to speak We have covered the various measures that we have taken, and we have covered the huge investment that we have made in HMRC. Perhaps I can now turn to the international aspects. We all agree that we need to look closely at what is happening in the international sphere. On that, this Government have a record of which we can be proud. Through the OECD, we have been in the vanguard of the base erosion and profit shifting project. We have worked closely with the Crown dependencies and overseas territories We have brought in a diverted profits tax, which will raise £1.3 billion by 2019, and common reporting standards to ensure that information is exchanged in relation to around 100 countries. We have introduced a directory of beneficial ownership that is accessible by HMRC, the authority that needs to have that information. All this has happened in the last couple of years, and it is a game changer. Many of the issues arising from the Paradise papers go back very many years, but these measures are in place right now I also want to make an important point on transparency. In last week’s debate, I asked the right hon. Member for Barking, in relation to the 13 million files held by the International Consortium of Investigative Journalists, whether she would join me in calling on the ICIJ to release that information to HMRC so that we could go after anyone who, as a consequence of that data release, was thought to be abusing our tax system. Will she support us in that endeavour?
The Minister did raise that point last week, and the House should know that it is not in the gift of either The Guardian or “Panorama” to release those papers. They are not able to do that.
What I actually asked was whether the right hon. Lady would join me in calling for the ICIJ to release that information. [Interruption.] That is a slightly different question, and I am happy to give way again if she will tell us, yes or no, whether she will do that. [Interruption.]
Order. Stop the clock. There is far too much noise in this Chamber. I say gently to the Parliamentary Private Secretary, the hon. Member for Croydon South (Chris Philp): don’t do it! You may think you are being clever, but it does not enhance your reputation as a parliamentarian in the end. Please don’t do it. It is juvenile, the public despise it and I have no patience for it.
I will certainly join the Minister in seeking any documentation that HMRC requires to pursue those who are guilty of avoidance or evasion. I would say to him, however, that when I have given papers to HMRC in the past—whether relating to Google or from other whistleblowers—they have just disappeared and no action ever appears to have been taken.
I am grateful to the right hon. Lady. I will take that as a yes—we can work together to try to ensure that that information is provided to HMRC. I see no reason why that should not happen.
I very much agree with what my right hon. Friend has said. Before he leaves the international dimension, will he confirm that in recent years—well after many of these papers came to light—the three Crown dependencies and the overseas territory of Gibraltar have fully co-operated with the UK in relation to all tax transparency and OECD measures, and that they have the same tax transparency ratings as the United States, Germany, ourselves and other western democracies?
I am grateful to my hon. Friend for that intervention. In relation to corruption inquiries, for example, we have automatic access to our Crown dependencies and overseas territories as a result of that co-operation I recognise how important this issue is to the public, and it is of critical importance to the Government as well. The UK’s tax authority now has more information and more power than ever before to clamp down on avoidance and evasion, because of the actions of this Government. The Government of which the right hon. Lady was a member failed to take those actions. I conclude with the words of the right hon. Lady in last week’s Adjournment debate, when she said “I have never defended the record of the Labour Government in this area”.—[Official Report, 7 November 2017; Vol. 630, c. 1442.] That speaks directly to the heart of this issue: an apparent legacy of tax abuses going back many years, framed by the inaction of the Labour party. It speaks to the core of Labour’s approach to the world that the opportunity always lies in criticism and derision, rather than in action and justice. This Government are acting and will continue to leave no stone unturned in the pursuit of those who seek to duck their responsibilities at the expense of us all. Whenever and wherever they are found, this Government will continue to bring the avoiders, the evaders and the non-compliant to book.
Order. Characteristically and courteously, both the right hon. Member for Barking (Dame Margaret Hodge) and the Financial Secretary to the Treasury gave way extensively. They are not being criticised for that, but I simply draw attention to the limited time remaining in the debate and ask those speaking from the Front Bench to be extremely sparing in their remarks. The first responsibility for brevity is that of the hon. Member for Bootle (Peter Dowd).
I will try to take that on board as a suggestion rather than a direction, Mr Speaker. The Minister identified what he thinks should be done, but I will tell him what should be done. In our “Tax Transparency and Enforcement Programme” document, Labour calls for an immediate public inquiry into avoidance, greater scrutiny of MPs, the creation of a specialist tax enforcement unit, and the public filing of large company tax returns and of the tax returns of wealthy individuals earning more than £1 million. We want no public contracts for tax avoiders, the repatriation of contracts parked in tax havens, public contract transparency, a register of beneficial ownership of companies and a register of trusts, and our programme would be enforced by working with the banking sector. We also call for a general anti-avoidance rule in principle, strict minimum standards for crown dependencies and overseas territories, the creation of an offshore companies levy and full country-by-country reporting. All that represents a comprehensive proposal from Labour.
Does my hon. Friend agree that there is an army of tax avoidance facilitators that includes, sadly, the four big accountancy firms, which are often based just down the road in the square mile?
My hon. Friend makes an important point. Transparency is at the heart of all this. I experienced a bizarre situation last week when I was on “Newsnight” with the chairman of the Cayman Islands stock exchange. What an insouciant attitude that man had to tax avoidance. He actually said that there had not been any wrongdoing—maybe not—and called for the journalists to be jailed. That is what he did, and that is the position in which we find ourselves.
Will the shadow Minister give way?
I am going to take Mr Speaker’s suggestion and push on, because it will become an admonition otherwise. I will then take some interventions I hope that Members across the House will join me in condemning the irresponsible and offensive comments of the chairman of the Cayman Islands stock exchange. All of us owe a debt of gratitude to the journalists involved for their hard work and diligence. They have demonstrated the importance of a free press in holding the wealthiest and most powerful individuals and multinationals to account To be clear, we are talking about tax avoidance that covers activities that are within the law but work against its effective application. Most of the people involved in the cases have not broken any laws or acted in a criminal way, but that does not make tax avoidance acceptable or justifiable in the 21st century. After all, as has been identified, tax avoidance costs us all. Every pound avoided is one pound taken away from our children’s education, from our armed forces—the very people who protect us—and from the elderly and disabled. The conservative—and Conservative—figures that the Government have published on tax avoidance show that HMRC recorded from 2010-2015 that £12.8 billion was lost to the Exchequer through tax avoidance. That is unacceptable People have a view about what the previous Labour Government did. They think that it was much better than the Tories overall, but I am not going to go there. The question arises—[Interruption.] I refer the hon. Member for Rochford and Southend East (James Duddridge) to the Financial Times. With the greatest of respect, I am not his researcher, and I am sure he is more than capable.
Does the hon. Gentleman accept that if the current tax gap was at the same level that it had been on average under Labour, our deficit would be £12 billion higher?
My hon. Friend the Member for St Helens South and Whiston (Ms Rimmer) says, “Move on.” and I think she is absolutely right. I will reaffirm the point that was made in Labour’s tax programme document: we have to push on with this debate. It does no good for the Government to talk about the past; we want to talk about the here and now and the future.
I will give way to the hon. Member for South Suffolk (James Cartlidge).
I had not expected—[Interruption.]
Order. There is no obligation on the hon. Gentleman to speak if he does not want to.
I will ask the shadow Minister a question. The tax gap is now 6%. It averaged 8% under Labour. Does he accept that if the tax gap was 8% now, the deficit would be £12 billion bigger?
The hon. Gentleman can extrapolate all he wants. I could extrapolate all sorts of figures, but I am not going to get into that. We will no doubt come back to the matter in due course at the Budget.
You are looking at me with those eyes and with a smile, Mr Speaker, so I will move on While tax avoidance is a global problem, it is also a UK problem. The UK accounts for 17% of the global market for offshore services. We are considered one of the biggest—if not the biggest—players in the global offshore system of tax havens. We account for some of the world’s key tax havens, including Jersey, Guernsey, Isle of Man, Bahamas, British Virgin Islands, Cayman Islands, Bermuda and the Turks and Caicos Islands, all of which are either Crown dependencies or British overseas territories and all of which are afforded the support and the protection of the British Government. Despite our prominence as a country at the heart of a network of offshore tax havens that aids and abets tax avoidance across the globe, the Government refuse to lead the way in global tax transparency. I keep on using that word “transparency” and I will keep on doing so.
Does my hon. Friend agree that the purchasing of a private jet at nearly £17 million and then setting up an offshore leasing company with the sole aim of saving £3 million in VAT is an affront to our public services?
My hon. Friend is quite right. That is shocking Government Members’ denial about their record on tax avoidance is not new. In 2013, while the G8 was pushing ahead with stricter rules that would clamp down on tax avoidance, the then Conservative Prime Minister, David Cameron, was busy undermining them, writing to the President of the European Council demanding that offshore trusts were excluded. The Government’s record on tackling tax avoidance is not all that they would like it to be.
The shadow Minister is being generous with his time. We all agree that this matter should be a priority, and the shadow Minister is focusing on our record, but why did the Labour party block the three measures that we brought forward in the wash-up that would have been worth £8.6 billion—vital for all the public services that he listed earlier? It is a joint priority, and we need both sides to work on this.
I am more than happy to give the hon. Gentleman the narrative of the wash-up proceedings. If he wants, I am happy to talk to him outside, because the information that he has been getting from his Front-Bench team is nonsense I am going to conclude to give others the opportunity to speak. First we had the Panama papers and now we have the Paradise papers; how many more tax avoidance leaks will there need to be before the Government act? It is clear that we desperately need a public inquiry into tax avoidance and the use of offshore trusts and tax havens. The Government should listen to the Opposition and, perhaps more importantly, to people outside the House and act by introducing a public register of offshore trusts and publishing the information already provided from overseas territories. They should also stop cuts to HMRC and ensure that HMRC has the staff and resources it needs to tackle tax avoidance at its core If the Government continue to ignore the problem and fail to act, I reassure the House that a Labour Government will act.
I draw the House’s attention to my entry in the Register of Members’ Financial Interests I congratulate the right hon. Member for Barking (Dame Margaret Hodge) on securing this debate. She brings great expertise and authority on these matters, not least from her time on the Public Accounts Committee. The most important point for the House to focus on this afternoon is that this is absolutely not a party political issue. Although the right hon. Lady raised some criticisms of this Government, she also raised criticisms of the Government of which she was a member. In my judgment, the only plausible criticism that can be made of the current Government is that they need to speed up some of the initiatives they have already implemented. They have not done so in respect of the overseas territories because, obviously, we would rather those havens took action themselves—to be fair, to some extent they have already started to do so On the actions taken by the Government, David Cameron and George Osborne led the international effort at the G8 to clamp down on such matters, particularly tax avoidance and evasion. The UK introduced publicly accessible registers of people with significant control, abolished bearer or anonymous shares and, importantly, introduced unexplained wealth orders. The anti-bribery law, work on which first started under John Major in Paris in 1995, was finally introduced in this country by David Cameron in 2011, after 13 years of Labour government On this Government’s record, let us be clear that they have been taking action and have raised an immense amount of extra tax as a result. However, the time has come—this is my third debate on this issue—to insist on the same levels of openness and transparency for the overseas territories as we have in this country. The territories gain hugely from their relationship with the United Kingdom and, as the Government made clear in 2012, “As a matter of constitutional law the UK Parliament has unlimited power to legislate for the Territories.”
The right hon. Gentleman will know from his considerable expertise on international development that the abuse of such offshore schemes not only harms British taxpayers but disadvantages some of the world’s poorest people. That is why the Government must act to introduce greater transparency in Crown dependencies and overseas territories.
I am coming on to precisely that point Like many Members, I have been visited by senior Ministers of almost all the overseas territories, and the position of the territories is best summed up by the prayer of St Augustine: “Oh Lord, make me chaste—but not yet.” The territories put two specific arguments. I call the first the Dutch Antilles argument, which is that if the territories have open registers, the hot money will head off to the Dutch Antilles. There is momentum around the world, thanks to David Cameron and George Osborne, to attack such ills and unfairnesses. Havens that embrace an open register will get an advantage from being at the front of opening up to billions of pounds of legitimate business The second argument—in a way, this is the one we have to address head-on—is that the territories’ private registers are already available to lawmakers and regulators, such as HMRC. The territories proudly say that they will turn round inquiries from HMRC within a matter of hours, which is good, but it completely misses the point, as the recent release of information shows. Registers must be open to the media, to journalists, to non-governmental organisations and to those who can join up the dots. The regulatory authorities, with the best will in the world, are not in that business. Narrow questions, drawn from regulatory authorities, simply do not begin to suffice.
I refer to my declaration in the Register of Members’ Financial Interests. My right hon. Friend makes a fair point. Does he also accept that it is fair that we should not lump all the overseas territories into one basket? Some are much more compliant than others, Gibraltar being one.
My hon. Friend makes a good point. I specifically exclude Gibraltar from what I am saying because it is not an example of what we are talking about Time is short. My final point is that the United Kingdom led on the 0.7% target. Around the world, the United Kingdom is looked to for leadership on international development. International development is part of this Parliament’s identity, it is who we are and it is part of global Britain. We have an obligation, not least to our own taxpayers, to champion transparency and openness and to have zero tolerance towards corruption When we first came into government in 2010, the Department for International Development led the way with its transparency guarantee. We openly published all expenditure above £500 on the internet. It may be a cliché, but sunlight really is the best disinfectant. That is at the heart of what we are talking about today.
I support what my right hon. Friend is saying. Does he agree that the future market for financial services is huge and that jurisdictions with that level of transparency will attract vast amounts of business precisely for that reason?
My hon. Friend is absolutely right. The first of my two points was about trying to tackle head-on the counter-arguments that are sometimes made by some territories On tackling and having zero tolerance towards corruption, in 2010, when I had responsibility for international development, we targeted funding specifically at the City of London police, which has expertise on pursuing and recovering stolen funds. We should do as much of that as possible.
I agree with a great deal of what my right hon. Friend says. Given that the majority of the economy of the British Virgin Islands, in particular, is in financial services and the islands have recently been completely devastated by hurricanes, is now the right time to be imposing on the islanders rather than working with them?
My hon. Friend makes a fair point in view of the humanitarian crisis that is afflicting the BVI, which are of course one of the most transparent of these havens. What I hope will be a temporary crisis in the BVI following the hurricane damage should not in any way detract from my argument that, in a defined, perhaps short, period of time, these open registers are essential.
Will the right hon. Gentleman correct the record? He said earlier that the UK led on the 0.7% target, but the UK was 40 or 45 years late. The 0.7% target was agreed in 1970, and the UK reached it decades behind the Scandinavians. I do not see that as leadership. Does he want to come back on that?
The hon. Gentleman cannot get away with such a narrow, partisan comment. Britain was the first G8 country to stand by its commitment to the poorest people in the world, and we are very proud that it was this Government who did it The highly respected Africa Progress Panel, in a recent study on the Democratic Republic of the Congo, made it clear that stolen funds and stolen taxes cost that country £1.5 billion, which is more than it spends on health and education. It is a deep irony that some of the world’s poorest people live on top of some of the richest real estate, as is clear in the DRC. Credible World Bank studies make it clear that the money stolen from the people of Africa through unpaid taxes or concealment dwarfs all the foreign direct investment and international development money that flows into Africa each year.
We know a lot of that money ends up not in the overseas territories but in places like Dubai. Does my right hon. Friend agree that we also need to engage with other partners around the world, particularly in places like Dubai, where a lot of this money is to be found?
My right hon. Friend makes a good point; the key point on all of this is transparency and openness. Let all these matters be published in the way they are published through the open register in Britain. That is the way in which we make progress We look to the Government to advance this agenda, probably in the Finance Bill. We hope that those on the Treasury Bench will hear clearly the will of the House on this matter today and that progress will indeed now be made.
I ask the SNP spokesperson not to exceed 10 minutes, in the interests of facilitating others, but we are in her hands.
Thank you, Mr Speaker. It is not common for me to exceed 10 minutes, so I will try to stick to that. Let me start by thanking you for granting this debate under Standing Order No. 24, as I very much appreciate that, and the right hon. Member for Barking (Dame Margaret Hodge) for securing it. I also wish to thank all the journalists who have done all the work on the Paradise papers. They have done a huge amount of work in investigating this, exposing the issues and bringing them to the attention of the international media as well as this House. They deserve to be thanked for that I normally have quite a lot of time for the Minister—I find him to be often wrong but generally reasonable—but the speech he made today was badly pitched. The one made by the right hon. Member for Sutton Coldfield (Mr Mitchell) was much better, in that he talked not only about resting on the laurels of all the great things the Government have done, but about what the Government were going to do and could to in the future. [Interruption.] And should do, absolutely. I hope the Minister listens to the voices from across the House and what they are calling for. As has been said, this is not a party political issue. I do not have a huge amount of respect for the actions of either the Labour Government or the Conservative Government on tax avoidance and evasion. I do not think either party has done a particularly good job on that. A huge amount more can be done, as Members from across the House would agree Transparency International looked into companies dodging tax and found 766 UK companies that were involved in corruption and money laundering, to the tune of £80 billion. A quarter of those companies that were investigated by Transparency International are still active—the UK Government could take action on those organisations. The UK Government are making a number of incredibly ill-advised and not great decisions at the moment, on things such as closing HMRC offices and their continued pursuance of austerity. The only reason the Government are tackling Scottish limited partnerships is the work done by a number of journalists, as well as colleagues from my side of the House. I appreciate that the Government have taken action on that, but it took a very long time for them to be convinced by MPs such as Roger Mullin to make any move on it As I said, not only this UK Government but previous ones have successively failed to crack down on this. The UK tax code is out of hand and requires simplification. The changes the UK Government are making, in conjunction with the Office of Tax Simplification, have not gone far enough. It still requires a van to carry the tax code; people can no longer carry it, because it is so significant. The potential for loopholes and for people to dodge things as a result of that incredibly complicated tax code is ridiculous. The hon. Member for Bootle (Peter Dowd), the shadow Minister, talked about the UK Government previously calling for the EU’s sanctions around tax dodging to be watered down. That was grim action for them to take, particularly in the wake of the Paradise papers, when this call came. The UK Government should be leading by example. They should not just be saying, “Oh, we’ve got the tax gap down to 6%.” They should be saying, “The tax gap is still 6%. We have a huge amount of work to do to crack down on that final 6%.” The UK has the opportunity to lead the world in this regard and it should do so.
Does the hon. Lady think the introduction of further tax bands and thus further complication by the SNP Administration in Edinburgh is an additional complication or a simplification of the UK tax code?
The hon. Gentleman is confusing income tax with a number of other types of tax. What has happened in Scotland in relation to the paper that has been produced, which sets out a number of options and their effects, and then consults on them, is way more transparent than any action that any UK Government take in advance of any Budget, where they pull rabbits out of hats. The Scottish Government have entered into dialogue with the other parties, which have the opportunity to take that chance to criticise or to praise. They should do that, as he should. The Scottish Government and the SNP have called for this area to be devolved to Scotland because we think we would do a better job As everyone knows, tax evasion is illegal, but the Paradise papers highlighted that tax avoidance is immoral.
On the Paradise papers, does my hon. Friend share my concern at seeing the Duchy of Lancaster’s investment in BrightHouse, a company that exploits constituents in vulnerable areas such as mine with extortionate annual percentage rates of 70%? Does she find that immoral as well?
I agree with my hon. Friend on that, as I, too, have constituents who are exploited by organisations such as BrightHouse. It is not a company that anyone reputable should be investing in It is not that difficult for people to pay the tax that they owe; it is not that difficult to say to a financial adviser—this is for those who have bags of cash—“I would like my money to grow, but I wouldn’t like it to grow by avoiding the tax that I owe.” It would be easy for people to say that. It is clear that some people lack a moral compass. Where they are taking decisions to engage in aggressive tax avoidance, the Government must legislate so that they can no longer do so—to provide that moral compass for people and make sure that the tax is paid when it is owed. We must have the best possible tax rules in place. We must simplify the tax code. We must crack down on evasion, and we must legislate to reduce avoidance. The Government are in an untenable position: they cannot continue to implement austerity while leaving a tax gap.
We note that many of the tax avoiders do not avoid using our roads, our schools and our hospitals, and they certainly do not avoid using the police to look after their lumps of money, here, there and everywhere.
I absolutely agree with my hon. Friend from the Western Isles. People, however much they are earning and however much tax they are paying, are using public services. Our party aspires to have brilliant public services. We aspire to have people working in our public services who are paid a reasonable amount and do not have to face a pay cap. The only way we can provide the public services and benefits system we want is by having a system where people pay the tax they owe. We continue to call for this to be devolved to Scotland because we think we would take better decisions. In the absence of devolution, we would like the UK Government to take actual action, rather than just saying, “Look how great we are.”
On account of the number of people wishing to contribute, there will be, with immediate effect, a six-minute limit on Back-Bench speeches. I call Mr David Morris.
Thank you very much, Mr Speaker. I did not expect to be called so early I am a little at a loss about what we are trying to achieve here: is this about tax evasion or is it about offshore companies? The reality is that offshore companies are legal entities, and a lot of them, especially across the Commonwealth countries and the overseas territories, have been set up using HMRC guidelines. That has to be clarified here and now: is this about tax avoidance per se or is it about overseas territories having tax advantages? What is it about? Yesterday, when the debate was being granted, I was standing to the side of you, Mr Speaker, and I was absolutely of the mind that this was about overseas territories or tax evasion under certain forms of tax advantages in certain countries. The UK can do its bit, as it is doing and as this Government have done The Labour Government did very little for 13 years, to be quite frank. Now, it is about the perception of who pays the taxes in this country. I can give the House a basic economic argument. It is like a piggy bank. Someone earns their money and puts it in an offshore piggy bank, and they pay tax on it at source and when they take it back into this country. So there is really no tax evasion there I can remember the Leader of the Opposition talking about the Isle of Man Government. I have lot of time for the Isle of Man Government and they have a lot of links to my constituency. The problem I have is that the Isle of Man is the most highly regulated offshore tax haven, if we want to call it that, in the whole world The Isle of Man Government told me: “Amongst other things, the Customs and Excise Agreement removes the need for customs barriers between the Isle of Man, the UK and the EU”— even the EU is loth to draft any legislation on this matter— “and makes the Island part of the European VAT territory. The Agreement also makes provision for the Revenue Sharing Agreement (RSA), the agreed formula by which VAT and most other indirect tax revenues are split between the UK and the Isle of Man.” On the subject of private jets, the Isle of Man Government told me: “Since 2011, Isle of Man Customs and Excise has raised more than 30 assessments for under-declared or over-claimed VAT against businesses in the aircraft leasing sector, protecting approximately £4.7million of VAT” for the Exchequer. So what are we arguing about? Are we arguing about reforming tax laws or reforming tax havens? I might add that most tax havens in overseas territories have been sorted out by this House I shall keep it short, Mr Speaker, but I think that this debate is a grand waste of time. More to the point, it is confusing to the public.
Having listened to the hon. Member for Morecambe and Lunesdale (David Morris), I am dismayed. What we are talking about is openness and transparency about tax. The right hon. Member for Sutton Coldfield (Mr Mitchell) set the tone for this debate, along with my right hon. Friend the Member for Barking (Dame Margaret Hodge). This is an important cross-party issue, and I agree with nearly every word—in fact, every word—that the right hon. Gentleman said. Tax avoidance and evasion harms countries around the world, including developing countries. It hits taxpayers in our constituencies because the wealthiest people and large corporations find ways to reduce their tax bills or to avoid paying tax completely.
Will the hon. Lady give way?
I wish to make some progress, please I congratulate my right hon. Friend the Member for Barking on securing this debate, and I congratulate the International Consortium of Investigative Journalists, “Panorama” and The Guardian for shining a light on what has come out of the Panama papers. The Public Accounts Committee has been shining a light on aggressive tax avoidance for some years. I pay tribute to my right hon. Friend, my predecessor as its Chair, for the work that she led us through when I served as a member of the Committee. It is thanks to the Committee’s work under my right hon. Friend that some of the worst excesses of avoidance came to light. International action—it has to be international—has led to real change at a faster pace than we have seen under any Government for many decades, by making public more information about corporations’ tax arrangements We continue to pursue this issue, and with political will, we can make progress. In December last year, the Public Accounts Committee held an international tax transparency conference. We had imagined, in our own humble way, that we might get people from some European Union countries to come along; we were amazed that representatives from countries around the world came. More than 20 of them signed up to our pledge on international tax transparency, to fight for our citizens and through our Parliaments to press our Governments to be bolder and faster, as the right hon. Member for Sutton Coldfield said. There are the beginnings of some political will, but we are not moving at the right pace The release of these papers and this information is staggering to our constituents, who just pay their taxes and have no idea how hard the wealthiest work to avoid paying tax that would help our country, particularly in this time of austerity and pay dampening. Public country-by-country reporting for large corporations is something that the Government could do right now. My right hon. Friend the Member for Don Valley (Caroline Flint) has been a champion on that issue and managed to work with the Government to change the law. The Paradise papers show that the tax arrangements we are discussing come to light only when the information is in the public domain. We need to see fast change. The establishment of offshore trusts that then buy homes, wine and cars for the beneficiary, without tax being paid, or the paying of money into offshore trusts that then make loans to individuals that are never repaid—these things cannot be right, and although they may be legal, I doubt whether they are in some cases The Panama papers were released in April 2016. According to the representatives from HMRC who appeared before the Select Committee last week, 66 criminal or civil investigations are currently under way, four people have been arrested and a further six have been interviewed under caution. Even with that haul, HMRC only expects an additional tax yield from the Panama papers of £100 million. That is not to be sniffed at, but it is small fry in relation to the official tax gap. That just demonstrates the lengths to which people will go to hide their money and the importance of making sure that HMRC has the resources required to pursue this matter We need public country-by-country reporting to be enacted. Yes, it needs to be done internationally, but if international players will not lead the way, let the UK Government take us forward. Let us be bold and brave and make sure that we set the tone and the standard for the world. The Select Committee has urged HMRC to consider a wealth tax for wealthy individuals, as they have in Japan and Australia, to make it easier to track down where people hold their wealth and where they are paying tax We need continued parliamentary and public pressure, so that businesses voluntarily move towards more openness. The fair tax mark has already been taken up by 30 companies, and we hope that it will be taken up by many more. I would like to see HMRC take forward more prosecutions to set an example to those who seek to avoid tax and to make sure that people question the highly paid tax advisers they recruit, because it is no longer good enough to say, “I didn’t know what was going on; I just paid someone else to do it.” Everyone needs to take responsibility for their actions, whether they are corporations or wealthy individuals As I said, we need to give HMRC the resources to tackle tax avoidance and evasion. As my right hon. Friend the Member for Barking said, there is a very high return rate for every pound of taxpayers’ money invested in HMRC’s investigatory arms. It is important that the Exchequer sees that benefit and ramps up the money that is available. An arbitrary target of 100 prosecutions annually has now been set. That seems an odd figure to have plucked out of a hat. We are pressing HMRC to explain where that figure has come from out of the blue. We need to make sure that the right number of prosecutions take place, not just set an arbitrary target My constituents pay their taxes and they deserve better. Tax is paid for the common good, and my Committee works hard to make sure that tax money is spent by the Government efficiently, effectively and economically. We need to speed up on the measures to crack down on aggressive tax avoidance and, obviously, tax evasion. We need to move towards a world in which the impact of someone not paying their fair share of taxes is recognised as something that is plainly wrong.
It is a pleasure to follow the hon. Member for Hackney South and Shoreditch (Meg Hillier), and I join in the congratulations to the right hon. Member for Barking (Dame Margaret Hodge) on her securing this important debate. I absolutely agree with the conclusions she came to, but I probably took a slightly different route to get to them I should start, though, by saying that I do not think it is fair to say that over the past 15 years or so, HMRC, the previous Labour Government and the current Conservative Government have not tried to tackle aggressive avoidance. Look at the number of measures that have been introduced, ranging from disclosure rules for artificial schemes through to more recent measures. Look at a Finance Bill and count up how many targeted anti-avoidance rules have now been added. We have been trying everything we possibly can to tackle the most outrageous behaviour. Many of the schemes that 15 years ago used to be possible or, indeed, quite widespread just cannot be done in the UK at all now.
Does the hon. Gentleman agree that there is a cultural issue and a whole machinery that enables and facilitates these sorts of arrangements, which the 99% of us have nothing to do with, and that we have to be very aggressive in tackling that 1%?
I agree with the hon. Lady exactly, but the point I was trying to make was that I do not think that the size of the tax gap is down to a lack of effort or attempts to introduce new rules or measures. The problem is that the avoiders and evaders are perhaps one step ahead and move on to different things. That is why the Panama papers and the Paradise papers show that people are now just going offshore, or finding artificial ways to go offshore, rather than trying to do artificial domestic planning to get around the rules.
Is it not the case that the problem lies in our tactics of applying these complicated rules and regulations and in the fact that expensive minds—the accountants—can devise a way around them? Should we not be looking at a general principle, because people cannot get around a principle?
I agree with that view. The Government did introduce the general anti-abuse rule. It was quite a large step for them to take, as it said that HMRC can effectively ignore what is written in the law and apply what should have been written in the law. There is scope to extend that and to improve behaviour. It is right that we now expect large businesses to publish their tax strategy. It means that we can get the board to say that it does not condone such behaviour, it does not engage with it and it does not want its tax advisers to do such a thing. That is the way that we change the behaviour and the culture. We have seen advisers changing their codes of conduct, which is welcome. Some now say that artificial and aggressive abuse will not be committed under their management, but, clearly, there is still a long way to go Before I talk about the various measures that we could take, I should be clear that we will not be able to close the whole of the tax gap by tackling aggressive avoidance by the rich and the large multinationals. Obviously, we should narrow the gap by as much as we can, but the fact is that it is the small and medium-sized enterprises that form the largest group of companies not paying tax. Of a tax gap of £38 billion, £15.5 billion can be attributed to SMEs. The single biggest reason for the tax gap is not aggressive avoidance, which accounts for only £3 billion, but failure to take reasonable care. Therefore we cannot look at the whole tax gap of £38 billion and say that that is all being lost to us because of the awful behaviour of large corporates. Sadly, it is much more to do with individuals in the UK who are working and not declaring VAT, or who are working in the hidden economy. It is not quite fair to say that this is not about ordinary people, because, sadly, quite a lot of it is. We need to find ways of tackling that issue as well What has been exposed by these papers is a crisis of confidence. We need our tax system to be fair and our financial system to be legally compliant and as clean as we can make it. There are some further measures that the Government can take to improve the reputation of our financial system and to increase the confidence of our constituents in the tax regime. The good news is that most of these issues are Government policy already. It is just a matter of bringing them forward and perhaps finding some implementation dates. Let us get country-by-country reporting by multinationals in the public domain so that we can all see how much profit they are making and in which territory and compare that information with their turnover there, how many employees they have and what assets they have. That is perfectly fair information. It is not greatly enhanced disclosure If we look at the accounts of large plcs, we will see that they are required to disclose segmental information and tax reconciliation from their profits down to what tax they are paying. We want that information made available in a meaningful and useful way, so that we can work out how they are not paying the right amount of tax. That measure is on the statute book. Let us have a date when we require that information to be put in the public domain. It does not have to be tomorrow, or even next year. Let us have a date in 2019 so that we can see that information The other issue of transparency is related to who is buying the very expensive properties in the UK. We need to know who they are and how they have raised the money to buy those properties. It cannot be right that someone can buy a property here for £15 million or £50 million and not live in it and we have no idea where they got the money from to do that. Let us go ahead with the promise we made to have a transparent register of overseas owners of very expensive property in the UK. That will help to show that we are not encouraging kleptocrats or Russian oligarchs or people who have stolen from developing countries to put their money here in a safe UK asset Let me turn now to the overseas territories. The papers revealed some really shocking behaviour. For example, when Apple, one of the world’s largest and most reputable companies, was being chased by the EU through Ireland, it chose to try to move its affairs to Jersey to avoid the tax we all think it owes. Again, that shows why we need to get transparency into those territories of ours so that we know who is operating there and where their money has actually come from. Those territories have a right to exist, a right to choose their own tax rates and a right to be competitive, but they do not have a right to hide money that has been stolen from elsewhere in the world or to move profits that are not being earned there and try to give them a beneficial rate If we get transparency in the territories and we show who is operating there and where the money is coming from, those territories can show how clean they are and whether their claims are true. They can then compete on their reputation. They do not need to compete on being closed and dirty. They all assure us that they are not after dirty, corrupt, illegal and laundered money but are after real business. If they go ahead with that transparency, they will get a competitive advantage. As a country with so many territories, we cannot say that we will follow the herd; we are the herd, so let us set an example.
It is a pleasure to follow the hon. Member for Amber Valley (Nigel Mills) and to congratulate him on securing a Westminster Hall debate next week on the subject of public country-by-country reporting. I hope that Members from all parts of the House will support that debate It was just over a year ago, in September 2016, when a non-Government amendment to the Finance Bill, which had cross-party support, was successfully passed. It gave the Government the power to require multinationals to publish tax information in all countries in which they operate, known as public country-by-country reporting. This is an important measure—not the only measure—on how we tackle some of the scandals that have emerged through the Panama papers and, more recently, the Paradise papers. Openness on this issue means that we can see where large companies pay their tax and discourage tax avoidance, which will help us all In the extractive and finance sectors, a form of public country-by-country reporting is already in place. Increasingly, investors want to see more of that. Why is that so? They are getting more and more worried by these public disclosures and by the reputational damage to them of putting money into good enterprises which, however, at the end of the day compromise their investment and their sense of the ethics behind the contribution they want to make towards creating wealth. We all want to create wealth, because that creates the opportunities to tax and provide for public services It is clear from the Panama papers, and now the Paradise papers, that companies with a mandate to deliver a return to shareholders and investors seem to be under huge pressure to find ways to cut their tax bills, despite the large profits they make. That is why Governments have a duty to ensure that their domestic tax laws are as watertight as possible. Importantly, we need to make sure that we provide even greater transparency We know, and we have always known, that big companies and very wealthy individuals can easily move their revenue around the world, out of the reach of Governments, and find whatever loophole they can to become richer. Corporate tax avoidance is not only unfair but damaging to economies and societies. At home and overseas, it means less money for stretched public services. Earlier, a colleague said that it is estimated that developing countries lose at least $100 billion every year. That would be enough to educate 12 million children, who are currently missing schooling, and to provide healthcare that could save the lives of 6 million children Paying tax responsibly is an issue of right and wrong. If those with accountants and lawyers seek to avoid paying tax, preferring instead a world of hidden havens and shell companies, trust breaks down and in the end we all lose out. Last year, the then Treasury Minister, now the Secretary of State for Work and Pensions, said that although the Government were keen on a multilateral deal on public country-by-country reporting, if we did not make progress in a year, we would have to revisit the issue. In fact, in answer to a question to the Prime Minister on this very subject, she admitted that little progress had been made. One year on, the EU proposal, which is flawed, has stalled The time has now come for the Government to have the courage of their convictions to introduce public reporting requirements and then seek to build a coalition of the willing. Transparency is one sure way to rebuild trust. I hope that the Minister will consider this and meet a cross-party delegation to discuss it further. I look forward to the debate secured by the hon. Member for Amber Valley in Westminster Hall next week, but I say to Members: rest assured; when it comes to the next Finance Bill, a cross-party group will seek to amend it to set a deadline for when the power to introduce public country-by-country reporting will become a reality.
I will speak relatively briefly. Slightly earlier, I had the pleasure of intervening on the shadow spokesman. In fact, I had a unique pleasure in that he allowed me a second intervention; I think it is called a BOGOF.
There is no obligation on the hon. Gentleman to speak any further if he does not feel inclined to do so. It will be difficult, but we will probably manage without him. If he does want to speak further, he may.
I was referring to my earlier intervention, when there was some confusion; the point of substance I was trying to get at was the difference in the tax gap. The precise figure for the tax gap is now 6%, and it was 8% under Labour. The difference in annual terms is £11.8 billion. That is incredibly important, as the newspapers are dominated by all the coverage of the Paradise papers, and the impression that gives the public is that multinational companies are running the rule over us and getting away without paying their fair share of tax, and that we are failing to deal with that. In fact, all the statistics show significant improvement under this Government in closing the tax gap and bringing forward measures to deal with avoidance and evasion As my hon. Friend the Member for Amber Valley (Nigel Mills) mentioned, one important issue is property. My experience, before I came to the House, was in property, as I ran a business helping first-time buyers. One of the great grievances felt by first-time buyers is the sheer quantity of money that has come into the property market, particularly in London. That money is driving up prices and making property less accessible to local people who want to get on the ladder. We should remember that we have brought in two important measures to deal with that. Until April 2015, foreign nationals did not pay capital gains tax when they sold a property in the UK. We closed that loophole in April 2015.
Is not one of the greatest problems of the housing crisis described by the hon. Gentleman the inequality in the UK, where the 100 richest individuals have the same wealth as the bottom 19 million? Indeed, globally, the 85 wealthiest people in the world have the same wealth as 3.5 billion people.
I do not want to go global in my answer as I am talking about the general position in the UK property market, but it is undoubtedly true that a sense of great unfairness now pertains. Prices have risen so sharply and beyond the means even of those on relatively high incomes—let alone modest ones—particularly in London. Young professionals can be on £100,000 and still struggle to get on the ladder in significant parts of the capital. But it is not just about London. My constituency of South Suffolk and those in the counties around London know that the ripple of high prices in expensive areas comes out many miles—[Interruption.] The hon. Member for Na h-Eileanan an Iar (Angus Brendan MacNeil) is shaking his head, but many people move to my constituency because of the sheer cost of living in London.
The hon. Gentleman is talking about property prices. He just mentioned the Government’s decision to close the loophole whereby foreign owners of residential properties were avoiding capital gains tax. Does he regret not joining with the Opposition to close the loophole regarding commercial properties? That is having exactly the same impact on the property market.
It has to be said that the commercial sector is one area that has been much weaker since the Brexit vote, but the main issue of fairness from the point of view of taxpayers and first-time buyers relates to residential property. Making changes to tax is about not just tax avoidance, but about provisions such as the higher stamp duty we now levy on second-home ownership and properties purchased to rent out. The key point is that those measures have had a huge impact in supporting first-time buyers.
My hon. Friend just asked about Labour’s plans for an offshore companies property levy. Does he agree with the Institute for Fiscal Studies that such a levy is likely to raise zero pounds?
I was not aware of that so I am grateful to my hon. Friend for bringing it to my attention The broad point—my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell) mentioned this earlier—is that we should look to have cross-party agreement on this. I think that we all agree on the simple point that taxpayers want a system where all companies, particularly the biggest, pay their fair share of tax. What concerns me about stories such as the Paradise papers is that there is a huge amount of associated hyperbole, giving the impression that the system is not bringing in as much tax as it could when, in fact, that is not the case Quite simply, I would like a system where we reward success. We must never have a system that discourages enterprise, as we need enterprising businesses to generate the wealth that funds public services. The Government are getting the balance right. We should not get the impression from this debate and from all the leaks in the papers that the Government are failing to get a grip on the issue.
I congratulate the right hon. Member for Barking (Dame Margaret Hodge) on introducing the debate, and I agree with very much of what she said. It will be useful to go over a little the chronology of how tax avoidance measures have evolved in recent years. If we go back to 2010, the main source of industrial-scale tax avoidance was not in the British Virgin Islands or the Cayman Islands. It was a few miles down the road in the City of London, where industrial-scale activity was taking place in the big banks such as Barclays. There was a man called Jenkins, who was the head of the tax department in Barclays and was paid £40 million in one year for his contribution to avoiding tax that should have gone to the Treasury. The agreement that the Government then had with the banks was so loose that they perpetuated it indefinitely until there was a change in Government. My Lib Dem colleagues and I pressed the then Chancellor very hard and such activity was made illegal and, as far as I am aware, has largely stopped The next big step was the introduction of the general anti-avoidance principle, which was important in clarifying the murky area between avoidance and evasion. It is now clear that if individuals or their advisers engage in activity that is specifically designed to circumvent the intentions of Parliament, they can be pursued. Many of us have constituents who are being pursued, rightly, by HMRC and who are in substantial arrears. I hope that one of the good things that comes out of the Paradise papers is that HMRC has a substantial list of names and can now investigate whether those names have subscribed to the law as it is now redefined. As I understand it, HMRC pursued 65 individuals for £100 million a year after the Panama papers. That is a positive step and something to build on The third step in the evolution of tax avoidance measures was the introduction of the open register of beneficial ownership, to which various Members have referred. I know a little bit about it, since I was the Secretary of State who brought it here and took it through Parliament, together with the abolition of bearer bonds. It is fair to say that David Cameron was supportive of that at the time, but that he was slightly less impressive when it came to standing up to lobbying from the Crown dependencies and overseas territories.
The right hon. Gentleman mentioned David Cameron. Does he agree that much was promised after the flourish of the anti-corruption summit in May 2016—how long ago it all feels—and none of it seems to have been delivered. The anti-corruption champion, Eric Pickles, stood down and it seems that the Government have completely forgotten that the post existed at all. We were promised a strategy in 2016, but we are now being told that that will be in 2018.
I think I was in political exile at that time so I cannot testify one way or the other, but I was in government when we introduced much stronger anti-corruption measures in 2011 As far as the register is concerned, the argument that the overseas territories and Crown dependencies advanced was that they had to keep information secret because of privacy concerns, but precisely those same privacy concerns applied to the UK. Where there was a genuine concern about privacy—for example, when people were worried about being pursued by animal rights terrorists—that has been protected, so that was a transparent and weak defence. Many things that the overseas territories do are, in fact, perfectly reasonable. There is no reason why people should pay double taxation, but serious anti-avoidance activity should be pursued I hope that the Government will now be much more aggressive in pursuing the issue of the open register. They could give the overseas territories a deadline for the introduction of an open register. If the overseas territories do not comply, a series of sanctions could be introduced—for example, initially stopping companies registered there bidding for public contracts. Of course, the ultimate sanction is what happened in the Turks and Caicos Islands in 2009, when there was direct rule. If overseas territories egregiously avoid taxation in a way that seriously damages the UK, that is the kind of measure that should be introduced Much of the discussion we have had—the right hon. Member for Barking said this in her introduction—is not about individuals but about companies, because the scale of avoidance is much greater.
Will the right hon. Gentleman give way?
I have limited time We are all familiar with the way in which some of the big internet platforms avoid large amounts of taxation simply by manipulating prices and by the way they account for intellectual property liabilities. The Government’s response has, frankly, been very weak, and it is significant, in the light of the current Brexit debate, that the one institution that is seriously going after those companies is the European Commission. Margrethe Vestager’s actions in the Competition Commission are highly competent and effective, and many of us worry that, if Brexit happens, all that energy will disappear I have one practical suggestion—a very simple thing the Government could do—to deal with corporate tax avoidance. It is a simple regulation that would require large companies registered here to declare, first, their total UK revenues and then their total UK expenses. It would then be immediately apparent whether there was a tax liability that had not been met, and a simple levy in lieu of tax payment would bring some of those companies to book in a reasonable way Let me make one final point. The reason there is so much indignation about this question is not simply that tax is being avoided, but that many of our constituents are being aggressively pursued for tax avoidance at a much pettier level. At present, a big crackdown is taking place on what are called IR35 companies. These are contractors for the health service, and they are often software specialists. There is undoubtedly a certain amount of tax avoidance in relation to national insurance, but these companies are being pursued in a highly aggressive way that the Government do not use in pursuing much bigger fish. We are now being told that the VAT tax threshold could be considerably lowered in the Budget to stop tax avoidance, but that would effectively draw a large number of small companies into the tax net. It is the pettiness of such measures, contrasted with what happens on large-scale avoidance, that attracts so much ire and anger from the public.
I am afraid there is a three-minute limit with immediate effect. I call Craig Mackinlay.
Thank you, Mr Speaker. I am glad to have caught your eye Much of this issue has an international dimension. We have done more than any previous Government on the annual tax on enveloped dwellings, creating capital gains tax for foreign ownership sales and ending non-dom status. We have opened up shared beneficial ownership information through the OECD and the base erosion and profit shifting initiative. We have introduced the diverted profits tax, so that when there is insufficient economic substance to transactions—particularly where intellectual property is held abroad—and undue payments are made to foreign jurisdictions, that can be stopped and taxed accordingly. We have stopped the shifting of debt interest to the UK to prevent artificial deductions in the UK However, there is one tax haven I am really rather proud of, and that is the one for the lower paid in this country. We have created a very low-tax environment for the very low paid. When we look at what Labour did between 1997 and 2010, we see there was a rather paltry increase in the personal allowance from just £4,045 to £6,475 over 13 years. In our seven years in government, we have increased that to £11,500. That is a serious tax cut for every low-paid person We are doing something similar with companies, and that, to me, is the key to this. I would like to encourage more companies back to the UK so that they can pay their fair share of tax, and that is being done. In 2010, the corporation tax take was £35 billion, but it is now up to £53 billion. Of course, the wealthy in the UK—the top 1%—pay 28% of all income tax, which is higher than at any time In this debate, we must not lose an understanding of what foreign jurisdictions and so-called tax havens are there for. They are actually essential in the mix of international trade. For instance, it is not uncommon for a French investing company to choose the Caymans or the British Virgin Islands as the place of contract for a deal to invest in, say, the Democratic Republic of the Congo. Though I have great respect for the legal system of the Democratic Republic of the Congo, the legal system and common law of the UK are what create legal certainty. These things are not always about saving tax or avoiding tax; they are about trying to make transactions in the right place So let us bear down on egregious tax planning. Let us continue the promotion of data sharing with our international partners. Let us make sure that global profits are taxed in the right place. And let us use our influence on our overseas territories. The Conservative party is doing those things more than the Labour party did in 13 years in government.
May I start by joining Members on both sides of the House who have congratulated my right hon. Friend the Member for Barking (Dame Margaret Hodge) on bringing this important debate? I also congratulate all the journalists involved in this investigation. In my short contribution, I hope I might elicit from the Minister a modicum of regret for some of his recent actions. What we need to talk about today is tax avoidance, and, if I can, I want to take on the challenge put forward by the hon. Member for Morecambe and Lunesdale (David Morris). What precisely is the issue with these offshore companies? More specifically, why would anybody hold UK property and UK entities overseas When we look at those questions, these papers raise two clear issues for us. First and foremost, there is the case for transparency, and I want to use the example of private finance initiative companies to show why that is a problem. Secondly, there is the case for addressing the loopholes that this evidence has highlighted for us, which the hon. Member for Amber Valley (Nigel Mills) set out.
Will the hon. Lady give way?
I will not give way at this point, because I have only two minutes left Nine offshore infrastructure companies own between 50% and 100% of the equity in 335 PFI companies, which account for 45% of all projects. Twelve companies have equity in 74% of all current projects. At this point, we do not know what tax is being held overseas as a result—tax that was part of the PFI value-for-money assessment. These papers reveal how that happens. Secondly, on avoidance of capital gains tax, these papers reveal that Blackstone avoided stamp duty and capital gains tax on UK commercial property to a value of around £66 billion These are all choices. At the end of the day, we know that the lawyers involved are like water moving towards the sea—they will follow the easiest route. The problem here is politicians, not lawyers.
Does my hon. Friend support country-by-country reporting, which will help some of the most deprived parts of the world?
Absolutely, and I concur with all those who have raised that We can take action in this House. Specifically, new clause 2 to the Finance Bill—as my right hon. Friend the Member for Don Valley (Caroline Flint) said, many of us brought forward proposals—looked at the tax loophole relating to capital gains tax on commercial property. I will take no lectures from Conservative Members about how wonderfully this Government are doing on tax avoidance, when, just two weeks ago, they voted down a measure that would have brought in £6 billion a year to our Exchequer and given British businesses a level playing field. The Paradise papers show exactly why there is a problem, and I have mentioned £66 billion of capital gains tax and stamp duty that we are not getting because companies are registered overseas Nor will I take lectures from the Minister about loans, given that he passed in the Finance Bill a measure to reduce the share relief that PFI companies can claim on their loans. Those companies own millions of pounds’-worth of our public sector, and are able to trade off the interest that they pay on those loans in overseas companies, but the Minister has just passed an amendment that will make sure they do not even have to pay any tax on that. Those companies can comfortably be held overseas so that we will not even see what is happening In the minute I have left, therefore, I want to make some simple proposals. As my hon. Friend the Member for Enfield, Southgate (Bambos Charalambous) said, we absolutely need a public register. However, we also need a moratorium on all public investment in these companies until we know precisely what tax we are missing, and until we can be confident that these offshore companies are not milking the British taxpayer twice—by not paying their taxes and by getting us to pay them through PFI and public infrastructure investments. We must also close the loophole on capital gains tax on commercial properties as a matter of urgency. Nobody who faces cuts in their public services can allow that to continue for a second longer Finally, we need to rethink the decision to give PFI companies the tax relief that the Government have just given them. I hope the Minister regrets his actions, because, frankly, this is not about the Paradise papers; it is about parasites bleeding money from our public sector.
I am grateful to you, Mr Speaker, for allowing this debate, and to all Members who have participated, particularly those who looked beyond narrow political party interest and more at the public interest We cannot allow the serious issues raised by the Paradise papers today simply to become the fish and chips wrappers of tomorrow. It is our responsibility as lawmakers to do all that we can, in the UK and with our international partners, to stamp out an injustice that is both unfair and offensive. The Government can take action that will make a difference, and it simply needs a strong political will to make that happen. I urge the Government to act in next week’s Budget Question put and agreed to. Resolved, That this House has considered the systemic issues enabling tax avoidance and evasion uncovered by the Paradise Papers.
On a point of order, Mr Speaker. Have you heard from the Foreign Office of an intention for a Minister to come to the House to make a statement on what appears to be an ongoing coup in Zimbabwe?
The short answer to the hon. Gentleman is that I have received no indication from any Minister from the Foreign Office or any other Department of an intention to make a statement on that matter. However, what the hon. Gentleman has said will have been of great interest to Members in all parts of the House, and, importantly, his remarks will have been heard by those on the Treasury Bench. Knowing him as I do, with his interest in and experience of this subject, I have a feeling that we will hear more about the matter before very long. Meanwhile, he has put his point very firmly on the record.
I beg to move, That the clause be read a Second time.
With this it will be convenient to discuss amendment 79, in clause 1, page 1, line 3, at end insert— “(2) Regulations under section 19(2) bringing into force subsection (1) may not be made until the Prime Minister is satisfied that resolutions have been passed by the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly signifying consent to the commencement of subsection (1).” This amendment would make the repeal of the European Communities Act 1972 on exit day conditional on the Prime Minister gaining consent from the devolved legislatures. Clause 1 stand part Government amendments 383 and 381 Amendment 386, in clause 14, page 10, line 25, leave out from “means” to “(and” in line 26 and insert “the time specified by an Act of Parliament approving the final terms of withdrawal of the United Kingdom from the EU” This amendment would require ‘exit day’ to be specified, for all purposes, in a separate bill seeking approval for the final terms of the withdrawal of the UK from the EU. It would therefore have the effect of requiring a statute on the withdrawal terms - whatever they might be - to be passed by Parliament before ‘exit day’. Amendment 43, page 10, line 25, leave out “a Minister of the Crown may by regulations” and insert “Parliament may by a majority approval in both Houses” This amendment together with Amendments 44 and 45 would empower Parliament to control the length and basic terms of transitional arrangements, and would allow Parliament to start the clock on the sunset clauses within the Bill. Amendment 6, page 10, line 26, at end insert “but exit day must be the same day for the purposes of every provision of this Act.” To prevent the creation of different exit days for different parts of the Act by SI. Government amendment 382 Amendment 387, page 11, line 24, leave out from “Act” to end of line 32 and insert “references to before, after or on exit day, or to beginning with exit day, are to be read as references to before, after or at the time specified by an Act of Parliament approving the final terms of withdrawal of the United Kingdom from the EU” This amendment is consequential on Amendment 386 and ensures that references to exit day in the Bill and other legislation operate correctly in relation to the time as well as the date of the United Kingdom’s withdrawal from the EU. Amendment 44, page 11, line 25, leave out “a Minister of the Crown” and insert “Parliament” This amendment together with Amendments 43 and 45 would empower Parliament to control the length and basic terms of transitional arrangements, and would allow Parliament to start the clock on the sunset clauses within the Bill. Amendment 45, page 11, line 30, leave out “a Minister of the Crown” and insert “Parliament” This amendment together with Amendments 43 and 44 would empower Parliament to control the length and basic terms of transitional arrangements, and would allow Parliament to start the clock on the sunset clauses within the Bill. Amendment 81, in clause 19, page 14, line 32, at end insert— “(a) section 1(2);” This amendment is a consequential amendment resulting from Amendments 78, 79 and 80 to Clause 1 requiring the Prime Minister to reach an agreement on EEA and Customs Union membership, to gain the consent of the devolved legislatures and to report on the effect leaving the EU will have on the block grant before implementing section 1 of this Act.
May I first draw the attention of the Committee to a mistake on page 1 of the amendment paper? The name of the hon. Member for Keighley (John Grogan) should not have appeared as a supporter of new clause 49.
I rise to speak to the new clause in my name and all the other names that still remain on the amendment paper. Although I am limited to speaking to new clause 49, it is linked to new clauses 50, 51 and 52, for reasons that I will develop I wish to begin by declaring my sentiments in tabling this new clause and supporting the new clauses that are umbilically attached to it. I am a reluctant Brexiteer. I am too old to feel that I was born to bring us out of Europe, and I have not had one of those evangelical revivals in thinking that somehow life began again once we entered the Common Market and that my aim, purpose, being, and everything I breathed was towards getting us out of that organisation. That is not so In my own constituency and in the small amount of work I did nationally, I stressed that things were on a balance: we had to make a decision about Europe. We did not need more facts about Europe, but had to draw on our very natures—all that we had been taught in our culture and where, in our very being, we felt we stood in this country—to make the decision about whether we wished to leave or not.
On a point of order, Mr Hoyle. In this new clause we are debating an exit date of 30 March 2019, yet grouped with it there are Government amendments to be voted on at a later date that put the exit date at 11 pm on 29 March 2019. There is a difference of an hour, and as far as I am aware the clocks only go forward on Sunday 31 March. Could you give some guidance to the movers of these amendments so that the arch-Brexiteers on both sides get their clocks and house in order?
Let us not worry too much about time because we are eating away at it at the moment. It is a matter to be decided in the debate, not for me to decide. When we get there, we will know better. Let us not take up more time now.
That was a good intervention. My new clause decides on British time when to leave, whereas the Government’s amendments are at the beckoning of Europeans. We have a very clear choice. I will willingly take interventions that are trying to trip me up in making this short contribution I fought the referendum campaign, as much as I could, as a reluctant Brexiteer. On balance, I thought that our country’s future would increasingly thrive outside rather than inside the European Union. I have always wanted to make a deal, although it is immensely sensible, in any negotiations, to make sure that the other side knows that one may be banking on and planning for no deal The next factor—I will touch on this again when we think of what the House of Lords might do to a Bill of this size—is that it has been very difficult for most of us to come to terms with what our role has been as MPs in a representative democracy, and with how we digest the fact that a referendum has taken place and the British people have spoken. How do we react in those circumstances, which I believe are unique and in no way comparable with any other parliamentary procedure that we deal with in this House As I said at the beginning, before I was helpfully interrupted, this new clause stands with three other new clauses. Together they present the Government with a clean, small, slimline Brexit Bill. By the time we get to the end of this process, they will thank the Lord that this life raft is in the Bill and they are able to get on it. In the new clause, we decide on the date—by British time, not European time—when we actually leave. That is our choice. It is about the beginnings of the freedom that we hope will flow—with difficulties, of course—from setting us on the course of leaving the European Union The second new clause simply ensures that all the laws and regulations come on to our statute book at that point in time—British time, not European time.
Will my right hon. Friend give way?
Can I just finish this point, and then I will willingly give way The third new clause is on how Parliament reviews those laws—those we wish to keep fully, those we wish to amend, those we wish to add to, and those we wish to kick out. It says that this House will decide how that process is done. I am sure that before we have finished our debate on this Bill in Committee, the Government will be agreeing with me on that. The Henry VIII stuff is an absurd way of going about this business, although as we get down to the mega-task of reviewing this, we may beg the Government for a touch of Henry VIII to get through a task of the size that will be before us Finally, given that we have real difficulties in completing a negotiation—
Will my right hon. Friend give way?
I said that I would give way as soon as I had finished explaining the new clause and the three new clauses attached to it. Finally, we need a safe haven. Speaking of which, I give way to my hon. Friend.
Will my right hon. Friend not concede that an arbitrary date for Brexit could risk damaging the British economy if clear evidence emerges, as it already is, that hurrying Brexit may badly damage our manufacturing sector, our agricultural sector and our financial services sector?
I am supported by people whose constituents largely agree with my views, not theirs. How they deal with that is not my problem. I agree that it is a difficult problem, but that does not mean to say that one should have any particular solution to it. Generally speaking, the larger the majority, the more clearly Labour voters spoke about Brexit. [Interruption.] No, that is absolutely true. I will deal with my hon. Friend’s point in a moment, but it comes down to who we think we are dealing with. Are we playing a game of cricket, or have we got people who are trying—
It is not a game!
I am just saying that—I am saying that we will be fighting for our lives, as I will set out if I ever get on to explaining the new clause fully.
My hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty) wants to intervene.
I am confused by my right hon. Friend’s suggestion that all Labour voters supported his position, because the majority of them did not. The majority of Labour Members do not support his position either. That is an important point, so will he correct the record?
I happily add to the record. It makes some people’s circumstances more difficult, but I said that generally speaking, the larger the Labour majority in the general election and the bigger the turnout in the last general election, the one before that and the one before that, the more likely constituents were to vote leave.
Order. We do not need everybody standing up at the same time. I am sure that if the right hon. Gentleman is going to give way, as he has already done, he will say so. Please, do not all keep standing up at the same time.
I would also say—
Will my right hon. Friend give way?
That includes Mr Farrelly, who has already had a good start to the day. Let us not continue in the same way.
I would also say, to qualify that general statement, that areas that I would love to represent—not my own constituency, but others—voted to remain, against the trend of Labour support, in the referendum.
My right hon. Friend is making a case that I do not agree with, but he is doing so with his usual reasonable approach. I think he is probably right that at the moment, most people have not changed their minds. The reasons why they voted to leave are still, as far as they are concerned, unresolved, and they think that those things will be resolved by leaving. Suppose, however, that it emerges in the next 12 months that all the reasons why they voted as they did will not be realised, and that, on top of that, the economic consequences will be disastrous—what then?
I have only four small sheets of paper, and it has taken me all this time to get this far. I have an answer for my right hon. Friend—[Interruption.] Indeed, it seems to me that the Labour side needs educating about where Labour voters are. If my right hon. Friend can contain himself, I will take account of that. I emphasise his wisdom in saying that we do not know where these negotiations will end up. They are fraught, particularly because we are negotiating with a group of people who do not want us to succeed because they fear what will happen in their own countries if we do.
Did the right hon. Gentleman receive a pamphlet—paid for by the taxpayer—from the Government during the referendum, on the back of which they stated that they would carry out the wishes of the people via the vote in the referendum? Does he believe that by having a fixed date, which everybody knows, we will deliver what the people voted for?
I have to confess to receiving the pamphlet and throwing it in the bin immediately. I never believed that the sort of campaign we fought, with false truths on both sides, enhanced our standing as a political class. Neither did it address the very serious issues of what people thought about their own identity, their community’s identity, their country’s identity and their country’s position in the world, on which we all know that people take different views. The idea that a Government pamphlet was going to help us—dear God!
I note that my right hon. Friend qualified his earlier statement, but does he accept that at the last general election, more than 85% of Liverpool, Riverside constituents voted for the Labour candidate, and that 73% of them voted to remain? Does he accept that the people of Liverpool, Riverside have great wisdom, and that that ought to be followed?
If I did, it would mean that the voters of Birkenhead did not have wisdom, which is the very opposite of my hon. Friend’s point. I am not going to put my head in that noose.
Will my right hon. Friend give way?
No, I have given way once. This is a serious debate and, if I can make progress, I will willingly bring people in as we go along I wish to express disappointment with the Government’s strategy and their handling of the situation. I do not think it has the sense of importance, drive or coherence that the issue merits. I have argued, publicly and privately, that anyone who seriously compares this historic event to our fight for survival in world war two would follow the move that Churchill made on taking over from Chamberlain, when he established a war Cabinet in place of the existing ramshackle institutions. As I will explain in a moment, the new clause represents the beginning of a new negotiating hand, and I think we need a Brexit Cabinet. It should be small, and the Opposition should be offered places in it. The Opposition were offered places in the war Cabinet, and Mr Attlee and Mr Greenwood accepted those places. We should try to act in the national interest—[Laughter.] Hon. Members may laugh—
Clearly, my suggestion is proving shocking to my right hon. and hon. Friends, but it will be a test of whether we are intent on the best possible terms, whether we have a clear position and whether we are putting our country first.
I thank my right hon. Friend and neighbour for giving way. Does he agree that the reason why we ought to have such cross-party co-operation is that this issue is not funny or a joke; it is about the future of our country? That is why we should listen to everyone in this place, and not just act in the narrow interests of the Tory party.
I think my hon. Friend ended her sentence rather early. I think she meant to say that we should try, difficult as it is, to put aside partial affections and concentrate on the national issue.
I can hardly finish a sentence. To those to whom I have given way, I will not give way again until much later in my speech.
My right hon. Friend has not given way to me.
I did give way to my hon. Friend.
It was a point of order.
Well, try another point of order and see if it works I have a sense of disappointment. We have ceased the aerial bombardment of this Bill, and we are now engaged in hand-to-hand fighting over the nature of our leaving. The sentiments of my hon. Friend the Member for Wirral South (Alison McGovern), my constituency neighbour, about our trying to steer this debate in the national interest are crucial.
No, I will not give way. I want other people to be able to contribute to the debate The second reason why I feel disappointment at the Government’s stance is that they are misreading the other side with whom we are negotiating. A British assumption is always to allow give and take, but we now have the Barnier rule of all take and no give. I will in a moment comment on how we should respond to that. Anybody who is serious, as all of us in the Committee have been, about wishing to award equal status and citizenship to EU citizens in this country know that those negotiations could have been over in half an hour. It was never ever the intention but for the other side to tick that off and say it was very good. Millions of people could have been put at their ease about their lives—both Britons living in the European Union and European citizens, as they will become, living in Britain—and we should consider that very carefully in our negotiations from now on The third disappointment is that the Government have produced such a Bill. When we were campaigning to leave, I thought we would have a Bill with two, three or four clauses to get us out. I know that the Government have been beguiled by its first title—the great repeal Bill—with some group of clever people thinking it can be great only if it is large, rather than aiming to be effective. I do not believe that a Bill of this size, timetabled as it will be to deliver it for the Government, actually stands much chance of getting through the House of Lords. Hence, my emphasis on the rescue launch waiting in the form of my four new clauses, including this new clause, which I have had such pleasure in moving.
Does the right hon. Gentleman accept that the House of Lords, which is of course unelected and which itself decided to pass the European Union Referendum Act 2015, really has no justification whatsoever for attempting to obstruct, delay or undermine this Bill?
A very important lesson needs to be learned by some of those in the House of Lords who think they can wreck the Bill and wear us down so that Brexit never takes place. There is a very important convention—the Salisbury convention—and there is a very important difference between a referendum and a party’s manifesto. The Salisbury convention allows us to give and take on the important parts of a manifesto—the parts to which Governments rightly feel committed, and which they wish to pursue in Parliament so that when they stand for re-election they can say they have done the job they promised to do This is a different ball game. As I tried to say at the beginning, it is difficult for us all to come to terms with the role we have as MPs and the role we have in a post-referendum debate. I think their lordships should know that if they try to wreck the Bill, many of us will push the nuclear button. Labour wants to see the House of Lords go—I am surprised there was not a cheer at that point—but their lordships will sound their own death knell. Not one of them is elected, and none of them has any standing whatsoever in preventing the Government from inviting the House of Commons to implement the referendum decision, as we are doing today.
I am following the right hon. Gentleman’s argument with close attention. Part of the leave argument was to take back control—not just to the House of Commons, but to the country and Parliament as a whole. Is he now trying to undermine the bicameral system?
No, not at all. We will be going late on days such as this, so if the hon. Gentleman would like to read my website, he will see I have outlined my views on House of Lords reform. They are different from those of most others. They are about its being elective, but through electing the great powers in this country—influences such as trade unions and so on—and certainly not through decisions by the party Whips. However, I dare not go down that path because it would take me away from the my new clause.
Will my right hon. Friend give way?
No, my hon. Friend has had one intervention via a point of order, and I think that is it for him.
I doubt it.
So do I I think new clause 49 should be the start of a new negotiating position. Mr Barnier has told us that we have to put our money on the table and get serious within two weeks, and I think we should jump at this opportunity. In two weeks’ time, the Government should lay the outline of our agreement. I believe they should say over which decades they are prepared to meet our commitments, and at the end of the two weeks, we should say that at that point we will cease to pay any contributions to the European Union. I want the balance of power to move swiftly from their boot to our boot. From that date, two weeks hence, at the invitation of Mr Barnier, we should say, “Fine. Here’s the outline of the agreement. Here’s the beginning of the money settlement”—paid over a period of time, because there are pensions contributions and so on—“but from this day, until you start seriously negotiating with us”, which they have not, “there will in fact be no more money.” It is wrong to think that all the £17 billion a year will be coming back to us. The £5 billion that Mrs Thatcher negotiated from the unfair formula is already coming back to us. That was watered down—by whom I will not say, but there is only so much one can say from the Labour Benches—but, nevertheless, £5 billion is coming back. There is also £4 billion coming back to promote anti-poverty programmes in this country. I wish to tell the Committee that I applied for money from those funds to feed people who are hungry and may be starving, but what did Mr Barnier and his group do? Nothing. We supposedly have huge sums of money coming back—spent at their direction—but that does not actually feed people who are hungry I want to end by saying that I shall push the new clause to a Division for a number of reasons. One is that it always seems to me better to gain an advantage when one can, rather than later: a bird in the hand is worth two in the bush. The Government are introducing their own timetable, as set by the European bureaucrats— whoever they are—instructing us when we might take leave of them, but I think we should decide today to leave on our terms and at a time of our choosing As I have said, the new clause should not be read in isolation, because it and the other three new clauses provide us with an alternative way of exiting without all the claptrap the Government have put in the Bill. I believe that, before the end of the negotiations, something like such a four-clause Bill will be adopted On the first and civilised intervention—the point of order—about timing, it is perhaps a fallacy to think of terms for oneself applying to terms for the nation, but I have never bought a house without having in the contract the date when it will be mine and on which I can actually move in. When I was elected to the House of Commons I knew that I would have a contract of up to five years, and I have never had a job without being given a starting date.
My right hon. Friend’s analogy about buying a house falls down at the first hurdle, because nobody commits to a date to buy a house before they know what it is they are buying. My substantive point, however, is about the fatal weakness of his proposal, even though, as always, I respect the way in which he argues his case. When the Secretary of State appeared before the Select Committee, he told us that it is possible that the negotiations may go to the 59th minute of the 11th hour. That is undoubtedly possible. In those circumstances, does it really make sense to bind the hands of the country and those who are negotiating on its behalf to get the best possible deal, which is also the weakness of the Government’s own amendment 381?
As my right hon. Friend was kind to me about the house analogy, I say that I have always bought my houses, never inherited them. [Interruption.]
I bought mine too!
I have been corrected and I withdraw my comment, but the idea that the biggest decisions of our lives, such as that to buy a house, are the ones that we take the most time over is not borne out by any research whatsoever. I do seriously apologise to my right hon. Friend.
The right hon. Gentleman has been a political ally of mine in previous cross-party arrangements, but not on this occasion. He has dodged answering the perfectly serious point that the right hon. Member for Leeds Central (Hilary Benn) just put to him. As things stand, article 50 will take effect in March 2019 and we will leave. Anything in the Bill is superfluous to that. A problem could arise only if—and this is possible—28 member states all agree that they are near to a conclusion but that they require a few more days or weeks to settle it. Once we are going they will not want us to stay in much longer, because they will not want us around for the European Parliament elections. However, it would be utterly foolish if 28 Governments all agreed to extend the process and the British representative had to say, “But we’ve put into British law a timing that says, to the second, when we are actually leaving.” That seems to me a rather serious flaw in the proposed new clause.
The right hon. and learned Gentleman is such a good lawyer, but I wish he had read my new clause, because it notes the day rather than the minute that we will leave. Despite all the encouragement from Members behind me, I was so anxious to withdraw what I said about my right hon. Friend the Member for Leeds Central (Hilary Benn) that I forgot to address his substantive point, and the right hon. and learned Gentleman has reminded me to do so. If we look over our whole history in Europe, we will see that the idea that we finish any negotiations other than at the very last minute is almost unheard of. By including the time, we will be saying, “You will have to begin your shenanigans the month before rather than the month after.” In conclusion, I am grateful for being allowed to move the second reading of this new clause, to remind people that it is part of a short exit Bill.
I am grateful to the right hon. Gentleman for giving way, because I know he is concluding. I want to make a simple point. The whole argument about having flexibility falls when we look at article 50 itself. It was very specific for a very simple reason, which is that the timescale determines that those who are negotiating must reach, or agree not to reach, an agreement. Simply changing the timescale will not allow them to reach an agreement; they have the time to do it. That is the whole point about compression—to get an agreement. That is why the date was prompted by article 50.
I have one last point to make. I thought that my proposed new clause merely implemented article 50, which we all voted for, to tell our constituents that we had—[Interruption.] Well, apart from one Member who voted against triggering article 50. [Interruption.] Apart from two or three—[Interruption.] Were there any more than four? Perhaps there were five, six, seven or eight I thought that what I had to say was so uncontentious that my speech would last only five minutes. I apologise to the Committee for the time I have taken. All the proposed new clause does is put on the statute book the actual timing of article 50, which we voted for in overwhelming numbers almost a year ago. I move the new clause in my name and the names of those on the amendment paper.
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.
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.
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.
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.
Does the Minister agree that this simple crucial clause is the way in which our democracy is completely restored and that once it has gone through and been implemented any matter that worries the British people can properly be the subject of parliamentary debate and decisions, no laws and treaties withstanding?
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.
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.
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.
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?
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.
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?
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.
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?
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.
Will my hon. Friend give way?
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.
On our time.
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.
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?
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.
Will the Minister give way?
I will give way once more, and then I will make some progress.
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?
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.
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.
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?
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.
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?
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.
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.
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.
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.
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.
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.
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.
I will get on with my speech now.
Will my hon. Friend give way on that very point?
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.
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.
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.
I shall give way twice more and then conclude my remarks.
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?
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.
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.
Could the hon. Gentleman define the Labour party’s idea of leaving the European Union?
I am surprised that such an ardent Brexiteer as the right hon. Gentleman does not understand what leaving the European Union involves. We do Until last Thursday, the debate on clause 1 looked fairly straightforward. The article 50 notification made our exit from the European Union in March 2019 a legal certainty, so, for the purposes of the Bill, exit day could be left in the hands of Parliament. But then the Government did something needless: they tabled amendments 381 and 382, putting a specified exit date—and, indeed, a specified exit time: 11 pm, or midnight Brussels time—into the Bill. Their consequential amendment 383 seems to contradict the other amendments in some regards, which underlines the chaotic way in which the Government have approached the Bill, but taken together, the intention of the three amendments is clear.
The rather mysterious explanation that the hon. Gentleman gave to my right hon. Friend the Member for North Shropshire (Mr Paterson) needs some elucidation. Would he be good enough to explain whether leaving the European Union means repealing the European Communities Act 1972, and why Labour voted against the Bill on Second Reading?
I would have thought that it would be as clear to the hon. Gentleman as it is to me that leaving the European Union does involve revoking the European Communities Act. I will go on to explain why we have concerns about the Government’s amendments and the different decisions within them.
Did the hon. Gentleman understand, as I did, when the vote on article 50 took place, that the provisions outlined in article 50 would apply, including the ability of 28 nations to agree to extend the negotiating process?
I did indeed, and I will come to that point later in my remarks I said that the intention of the three amendments is clear despite the confusion caused by amendment 383. It is clear, but it is needless because article 50, triggered on 29 March 2017, provides for a two-year exit timetable.
Will the hon. Gentleman give way?
No, I will make some progress There is therefore no question about whether the UK will leave the EU at the end of that period in accordance with the article 50 notification. So what is the purpose of the Government’s three amendments? Is it simply to appease extreme elements within the Conservative party, not thinking of the consequences for the country, or is it a deliberate decision to unpick the Florence speech, demonstrating that the freelancers in the Prime Minister’s Cabinet are actually in charge of policy?
I suspect that it may be the latter. Given the chaos that the negotiations are in, the public will be wondering about the lack of progress. When the Government suddenly want to impose a guillotine, rather than use the article 50 process, the public may have good reason to be suspicious.
I thank my hon. Friend for his intervention. The public have reason to be suspicious and worried.
Will the hon. Gentleman give way?
No, I will not. I want to make some progress, but I am sure that I will give the hon. Gentleman the opportunity to intervene later Whatever the reason for the Government’s decision, it is reckless and represents an extraordinary U-turn. The Minister said a few moments ago that it was important to give clarity on the issue of departure and that it was the Government’s fixed view, but that is not the view they held before last Thursday. In fact, for the past four months their position was represented by clause 14(1)—page 10, lines 25 and 26—which says that “‘exit day’ means such day as a Minister of the Crown may by regulations appoint” and by clause 19(1)—page 14, lines 41 to 42—which states that “different days may be appointed for different purposes.” Now, the Opposition thought that that was a sensible principle. We wanted Parliament, not Ministers, to agree the dates, which is why we have tabled amendments 43, 44 and 45. That principle makes sense, and I will outline why. As I have said, our departure from the European Union is a settled matter. However, the Bill deals with three different issues: the date that the 1972 Act will cease to have effect; the cut-off point for the use of delegated powers; and the ending of the jurisdiction of the Court of Justice of the European Union. On that last point, there is a fundamental impact on the transitional arrangements. Labour has been clear about the need for a transitional period in order to prevent a cliff edge and to ensure that businesses do not have to adapt to two new customs and regulatory arrangements in quick succession. We need a transitional period on the same basic terms that we currently have in the single market and in the customs union Businesses and trade unions support that transitional period, and we were pleased when the Government caught up with us on that in September. In her Florence speech, the Prime Minister finally recognised its importance and said that “people and businesses—both in the UK and in the EU—would benefit from a period to adjust to the new arrangements in a smooth and orderly way.” She went on to say: “Clearly people, businesses and public services should only have to plan for one set of changes in the relationship between the UK and the EU. So during the implementation period access to one another’s markets should continue on current terms and Britain also should continue to take part in existing security measures. And I know businesses, in particular, would welcome the certainty this would provide.” Her spokesperson reiterated just yesterday that she gave businesses reassurance on agreeing a time-limited transitional or, as she prefers to describe it, implementation period as soon as possible. However, amendment 383 blows the prospect of a transitional deal on current terms out of the water. Put simply, if there is no role for the Court of Justice of the European Union, we will not be operating on current terms and the Prime Minister will be unable to secure an agreement with the EU27 for the transitional arrangements that she set out in her Florence speech.
Is not the difference between an implementation and a transition the whole point? If it is an implementation, we are implementing the consequences of having left; if it is a transition, we are transitioning from being inside the European Union to being, at the end of the process, outside. Therefore in the transition we would be de facto members of the European Union, on the basis that the hon. Gentleman is setting out, defeating the whole purpose of this Bill.
Clearly, the transitional period is a bridge between where we are now and where we will be once we have left the European Union. The hon. Gentleman’s point is not relevant to the point I am seeking to make.
I wanted to make this intervention on my right hon. Friend the Member for Birkenhead (Frank Field), but he would not take it I commend the speech of my hon. Friend the Member for Sheffield Central (Paul Blomfield), and I seek his opinion on new clause 49. The new clause is linked to other new clauses, but if it is agreed there is no guarantee that the other new clauses will be agreed. Passing new clause 49 would therefore do a grave disservice to this country. Will he make clear the Opposition Front Bench’s position on new clause 49?
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.
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.
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.
The hon. Gentleman is making a powerful point, and I wonder whether I might help. I asked the Prime Minister what she thought the legal basis of any transitional deal will be, and she said that the EU takes the view that it will be article 50. When I was in Brussels with the Exiting the European Union Committee last week, I raised this issue at the highest level of the EU and was told that, yes, it is envisaged that during the transitional deal Britain will stay in the single market, in the customs union, within EU law, within the acquis and under the jurisdiction of the Court of Justice of the European Union.
I agree with the hon. and learned Lady. In fact, the Brexit Secretary talked about the Court in those terms yesterday.
I am listening carefully to the hon. Gentleman. Is not part of the difficulty that there is a sense of people being disingenuous about the reality of the process of Brexit? Of course it is possible that, at the end of this, despite how we pass this legislation, the Government will come back with a withdrawal agreement Bill—the statute they have promised us—that does the very thing they will not admit at the moment: keep us within the jurisdiction of the Court of Justice of the European Union during a transitional period. Would it not be better, and would it not help us in our debates on this Bill, if we had a bit of honesty and clarity from all sides about the implications of withdrawal, about how we have to go about it and about the options—sometimes the lack of options—that may be open to us?
I very much agree with the right hon. and learned Gentleman. Otherwise, we will face the nonsense of the Government introducing new legislation effectively repealing the repeal Bill, or a key part of it.
Further to the point of my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) on the difference between transition and implementation, we know for sure that it will be an implementation period because we will have to implement the withdrawal agreement. We do not yet know whether it will be a transitional period because we do not know, and will not know at the point of Brexit, whether we will have any final deal to implement.
The hon. Gentleman makes a fair point, and I will now make some progress I was at the point of talking about why closing down the opportunity for effective transitional arrangements would be deeply self-harming. As the director general of the CBI, Carolyn Fairbairn, said just last week, “The message from us, from business, is more certainty quickly particularly around transition, particularly in the next four weeks” The Government amendments undermine the prospect of a transitional deal and create more uncertainty. The CBI, the British Chambers of Commerce, the EEF, the Institute of Directors and the Federation of Small Businesses came together to call for a transitional deal, saying: “We need agreement of transitional arrangements as soon as possible, as without urgent agreement many companies have serious decisions about investment and contingency plans to take at the start of 2018” They continued: “Failure to agree a transition period of at least two years could have wide-reaching and damaging consequences for investment and trade” It will also mean lorries backing up at Dover, because the adjustments necessary to avoid that cannot be physically put in place within 15 months, as I am sure everyone would agree. For the same reason, it will mean a hard border in Northern Ireland, with all the problems that that would create The Government’s approach is simply not in the national interest, and it closes down the flexibility that we might need. If negotiations go to the wire, both we and the EU 27 might recognise the need for an extra week, an extra day, an extra hour, an extra minute or even an extra second, as the right hon. and learned Member for Rushcliffe (Mr Clarke) pointed out, in order to secure a final deal. But that agreement would be thwarted by the Government’s having made it unlawful for themselves to do what they would want to do at that point The Prime Minister has consistently talked about parties working together in the national interest, and we are up for that—we have tried to be constructive; we have scrutinised and identified gaps; we have offered solutions; and on this crucial issue we seem to be in the same place as at least some members of the Government on the need for an effective transitional period. So let me make an offer to the Government. If they withdraw amendments 381, 382 and 383, and work with us on an alternative that affirms a departure date in line with the article 50 process but without destroying the chances of transitional arrangements, we are happy to look at that and work with them on it. If they do not—
Does my hon. Friend agree that the real way in which the Prime Minister could reach out is by making it clear that she accepts the jurisdiction of the ECJ for the implementation period? That would resolve a lot of her problems.
My hon. Friend is absolutely right. The reckless ideological red line on the ECJ has got us into many problems—not only on this, but on the membership of Euratom and in many other ways If the Government cannot withdraw their amendments and engage in that process with us we cannot support them, because of the impact on the economy, jobs and livelihoods, as we would plunge over the cliff edge. I should also say that we cannot support amendment 79. We believe the Bill should operate on the presumption of devolution. My hon. Friend the Member for Darlington (Jenny Chapman) will set out our position in greater detail in subsequent days The Government have had months to repair this deeply flawed Bill. They could have come forward with amendments on workers’ rights, environmental protection, the charter of fundamental rights and limiting the scope of delegated powers, but instead they have chosen to come to this House with a gimmick on the departure date. This gimmick is about the Prime Minister negotiating with her own party, rather than trying to get a Brexit deal that prioritises jobs, the economy and the livelihoods of our people. The Government’s amendments are a product of the divisions at the heart of this Government on their approach to Brexit—divisions that are causing chaos, and this chaos is threatening our economy. We have a Prime Minister so weak that she is trying to tie her own hands behind her back to appease the extremists within her party.
Will my hon. Friend give way?
No, I will not Rather, I should say that the Prime Minister is letting the Foreign Secretary and the Environment Secretary tie her hands for her. She is putting internal party management before the national interest. This country deserves better, and we are offering it.
I abstained on Second Reading and I voted against the timetable motion. I felt it was not possible to vote against Second Reading because a technical Bill of this kind is certainly required for when we leave the European Union, to avoid the legal hiatus and total uncertainty that would otherwise occur about what law actually applies in this country. I abstained rather than supported the Bill because I feel that, for many reasons that will become clear in the days of debate to come, the Bill goes far beyond its original purpose and is drafted in such a way as to try to deprive Parliament of a proper vote and say on perfectly important features. I hope that all that will be corrected by a Government who we have been assured—I accept this—are going to listen to the debate and see what is required and what is not I wish to touch briefly on two features of this debate, the first of which is the repeal of the European Communities Act 1972. There are only two Members left in the House of Commons who were here when the European Communities Act was passed, and I am glad to say that we are both consistent. The hon. Member for Bolsover (Mr Skinner) and I continue to vote against each other on all matters European, and we always have done. I always assure the Conservative Whips that they can look forward to the hon. Gentleman supporting them on most of the issues on which I vote against them, and I am sure that that will continue to be case. On a serious note, the European Communities Act was passed on a bipartisan basis, which I helped to negotiate as a Government Whip—that is, Labour rebels supported the majority of the Conservative party to get us in. Before everyone deplores it, let me say that I do not think it has turned out to be a harmful piece of legislation at all. Apart from the predictable people—my right hon. and hon. Friends on the Back Benches—no one has ever sought to repeal it. The idea, which is very popularly put forward by the UK Independence party and others, that the Act has led faceless grey Eurocrats to produce vast quantities of awful legislation and red tape, is one of the biggest myths of our time. I pay tribute to Nigel Farage’s campaigning abilities. There is absolutely no doubt that he is the most successful politician of my generation, because he has persuaded a high proportion of the population that that is exactly how it runs. No doubt they are all looking forward to having bent bananas again once we have repealed all these pieces of legislation. I once fought an election in which quite a lot of my constituents had been persuaded that the Eurocrats were about to abolish double-decker buses. It took some considerable time to try to refute that rather worrying belief.
My right hon. and learned Friend’s stand on this issue has been completely consistent for decades, but can he stand up before the Committee and justify staying within the common fisheries policy on ecological, environmental, economic or social grounds?
I look forward to seeing what a British fisheries policy is going to comprise. This is outside the scope of the debate, so I shall be as brief as I can be, but the average fisherman I meet seems to believe that if we exclude foreign ships from our waters, we can give up all this scientific stuff about conserving stocks and there will no longer be any quotas. That is the usual argument put to me. Of course, most British fish is sold in the European Union—it is a very important market for us—and it is of course inconceivable that EU countries could be so vicious as to react to our throwing their ships out by not buying the fish that we catch. No doubt in due course a more rational British fisheries policy will emerge, and no doubt we will debate it in a more comfortable context.
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If there is anybody in this House who knows each of the 1,600 regulations in meticulous detail, it is my hon. Friend the Member for Stone (Sir William Cash).
Indeed. I wish to challenge my right hon. and learned Friend on his assertion that the manner in which the Council of Ministers has been operating has been adequately democratic and transparent. Can he please explain to us, from his own extensive experience, how it works and will he deny that, for the most part, it is done behind closed doors and that it is done by consensus, so nobody knows who decides what, how and when?
Under the Major Government, we introduced a process whereby parts of the European Council meetings were held in public. The Council of Ministers do hold public sessions, and an attempt was made to reach decisions in public sessions. It probably still goes on. [Interruption.] It does not amount to very much.
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No, let me finish my answer. We did try to tackle this criticism. What happened was that each of the 28 Ministers gave little speeches entirely designed for their national newspapers and television, and negotiations and discussion did not make much practical progress. When the public sessions were over, the Ministers went into private session to negotiate and reach agreement. I used to find that the best business at the European Council was usually done over lunch. I have attended more European Council meetings than most people have had hot dinners. The dinners and the lunches tended to be where reasonable understandings were made. There were very few votes, but Governments made it clear when they opposed anything. When the council was over, everyone gave a press conference. It was a slightly distressing habit, because some of the accounts of Ministers for the assembled national press did not bear a close resemblance to what they had been saying inside the Council. I regret to say that some British Ministers fell into that trap. British Ministers and Ministers of other nationalities who had fiercely advocated regulating inside the Council would hold a press conference describing their valiant efforts to block what had now come in, which confirms some of my hon. Friend’s criticisms. The fact is that most British Governments made it clear what they opposed and what they did not. If a regulation was passed in their presence, they had to come back here to explain why they had gone along with it. Now, that is enough on the European Communities Act.
Does my right hon. and learned Friend agree that, notwithstanding what happened in the past, the reality is that we have had the referendum and 52% have voted to leave, so it is now imperative that we all come together as much as we can to get this right? We need to get the best deal and the best legislation to deliver that deal. Most importantly, we must return sovereignty to this Parliament, which should have its proper meaningful vote and say—deal or no deal.
My right hon. Friend leads me back to the serious core of this debate. It will be disastrous if we do not get it right on this important matter—the question how precisely the Bill sets out the timing of the departure that is going to take place.
Will the right hon. and learned Gentleman give way?
I will in a second. I can assure the hon. Gentleman that I am trying to be brief I made this point once in an intervention, but it is an extremely serious matter. When the Government produced this technical Bill to stop the legal hiatus, they saw no reason to put any reference in it to our departure date from the Union. They had reason: there was no reason to put it in. Article 50, supported—despite my vote against—by a large majority of the House of Commons, sets the date of 29 March 2019, and the whole Bill proceeded on that basis. But in the past few days, partly in response to the new clause of the right hon. Member for Birkenhead (Frank Field), the Government have suddenly produced the most precise amendments, tying down our departure to the second With great respect to the right hon. Gentleman, his new clause could easily have been defeated: the Labour party would have voted against it; I would have voted against it, for what it is worth; and the Scot nats and the Liberals would have voted against it. Even the Government trying to apply their Whips to get it carried—if they had been foolish enough to do so—would have had a job getting a majority for his new clause. So I do not think that it was fear of the right hon. Gentleman, despite his formidable oratory, that caused the Government to table their amendments. What has happened is that they tried to make a concession to the pro-Europeans—the more moderate Government Back Benchers—by conceding the obvious common sense that, when we get there, we will have to have a meaningful, lawful vote on whatever deal is produced and that we will have to have legislation to move to the final period. It is not a great concession With great respect, the Government have not quite got it right yet, as we discovered the other day. All these great processes could take place after we have already left, particularly if the Government’s amendments are passed, which increase that risk. But they made what might have been seen by some as a dreadful concession to—of all people—my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for Broxtowe (Anna Soubry). Shock! Horror! What kind of press would that produce; what kind of reaction from the fourth row below the Gangway behind me? So somebody was urged to bring something that could be thrown as a sop to the Foreign Secretary and the Environment Secretary, and produced this ridiculous Government amendment. But it is not just ridiculous and unnecessary; it could be positively harmful to the national interest.
Despite what the right hon. and learned Gentleman just said, is not it fortunate that the Government have time to rethink this? It has already been made clear that the Government and the Opposition will oppose the new clause of my right hon. Friend the Member for Birkenhead (Frank Field). The Government amendment on the matter will not be considered until the eighth day in Committee. Therefore, is not there ample time for the Government—without losing face—to listen to the right hon. and learned Gentleman’s good sense and withdraw their amendment before that time?
I will not try to emulate the hon. Gentleman’s eminently sensible advice. By the time the Government have to concede this point, which I trust they will, we will all have forgotten the slightly odd circumstances in which this amendment was produced. He sums up the situation It is quite unnecessary to close down our options as severely as we are with this amendment, when we do not know yet what will happen. It is perfectly possible, on all precedents, that there is a mutually beneficial European and British need to keep the negotiations going for a time longer to get them settled and not to fall into the problems this Bill was designed to address.
Will my right hon. and learned Friend give way?
I am going to conclude now. I apologise to my hon. Friend Other things that have come up in this debate are extremely important and need to be returned to—and will be returned to—many times in the Bill’s Committee stage. The whole question of the obvious need for a transition stage, and the obvious need for a transition stage to continue with our relationship on its present terms, until the new terms have been clarified and so business can run smoothly, must be reflected in every word of this Bill, and we must not seek to put obstacles in the way The Florence speech was a most significant step forward—indeed, it was the only significant step forward that the British have so far taken in the whole negotiating process. I do not know—I suspect, but I do not know—whether there are amendments to the Bill whose main efforts are devoted to trying to step back again from the Florence speech, but just in case, I hope that the Government will welcome all efforts to put the spirit of the Florence speech, and indeed its content, into the Bill I hope that we will not have these necessary and detailed discussions, of which this debate is just our first, somehow interfered with or shot down when the criticisms get difficult by people saying, “Oh, you’re remoaners. You’re trying to reverse democracy. You have been instructed by the people to leave Euratom. You have been instructed by the people to reject the European Court of Justice.” The referendum—I have no time for referendums personally—certainly settled that the majority wanted to leave the European Union. It settled nothing else. As nobody expected leave to win—including the leave campaigners, who would have taken no notice of the referendum had they lost it—nobody paid any attention to what leaving actually meant in practical, legal, economic policy and business terms, which it is the duty of this House to debate. We had no instructions When anybody mentioned problems of trade, investment and jobs, which are only part of the problem, although a hugely important part, they were waved away by leave campaigners, including the leading leave campaigners. The present Foreign Secretary dismissed all that—it was the politics of fear. Trade would carry on just as before. Investment would flow just as before. That was what the public were assured and what most of them believed, whichever way they eventually voted Well, even the Foreign Secretary is going to have to read his brief and study the basis upon which international trade is conducted in the modern, globalised economy. We are going to have to avoid a House of Commons, which universally expresses a belief in free trade, quite needlessly putting protectionist barriers, by way of tariffs, customs procedures and regulatory conditions, between ourselves and our biggest and most important market in the world I look forward to hearing my hon. Friend the Member for Stone as the debate continues. I have listened to him, and greatly enjoyed listening to him and debating with him, for many years on this subject. He now represents orthodoxy and party loyalty. He now argues there is too much parliamentary debate and that we should not have votes on this—it has all been settled by the voice of people. I am the rebel. I espoused the policies that the Conservative party has followed for the 50 years of my membership of it until we had a referendum 18 months ago, and I regret that I have not yet seen the light. He and I, like the hon. Member for Bolsover, remain consistent; we are probably each of us wrong. In the course of this, there are some very, very serious issues to be settled in this Bill. I ask the Government to reconsider silly amendments that were thrown out because they got a good article in The Daily Telegraph but might eventually actually do harm. [Applause.]
It is an absolute privilege to follow the right hon. and learned Member for Rushcliffe (Mr Clarke). I welcome the applause from those on the Labour Benches. [Interruption.] Yes, some of them Over the weekend, we passed the halfway mark between the EU referendum and actually leaving the European Union. It is difficult to argue that over those 500-plus days we have spent that time well, that the Government have a clearer idea of where we are, or that the promises made by the Minister and his colleagues in Vote Leave have come to pass or are any closer to reality than they were when they made them. We are certainly no closer to the post-Brexit utopia that we have been promised Those looking back on these debates in years to come will, as well as admiring the speech by the right hon. and learned Member for Rushcliffe, do so with a sense of bewilderment. Not only is this Parliament set to approve a Bill, if it goes through, that most Members seem to think is a bad idea—most Members think that leaving the EU is a bad idea—but we are being asked to make significant changes with an extraordinary paucity of information. No other piece of legislation may have been forced through on the basis of such a small amount of information. It is astonishing that 500 days on the Government remain clueless about the impact of their plans. We have still not seen the impact assessments that this Parliament voted for and that we were promised. That would have been quite useful ahead of this debate, had this Government been listening to Parliament All this is coming from Conservative Members who wanted to bring back decision making, power and so-called sovereignty to the House of Commons. Clearly, after all this time, either the impact assessments are being hurriedly rushed together right now or the Government are too feart to share them—that means too scared to share them, for the benefit of those on the Front Bench. Last night’s botched efforts to try to win support illustrate the desperate situation in which the Government—and, frankly, this Parliament—find themselves. We have been given a choice between approving a really bad deal or a really, really bad deal. That is no choice at all and one that we should avoid at all costs The right hon. and learned Member for Rushcliffe raised an important point about promises that were made. There is a point here about accountability. Good governance in any Parliament—any legislature—relies on being accountable. The whole idea of why those of us from Scotland travel down here while those from elsewhere have to make their way here every single week is to hold the Government to account. One of the principles laid out in the Parliamentary Control of the Executive Bill brought forward in 1999 by the Secretary of State for Leaving the EU, who is not in his place at the moment, was that Government could not sideline this place. I wonder whether this Government would be in their current pickle had the Secretary of State’s Bill been passed in 1999. Accountability is sadly lacking. Parliamentary control should go deeper than even beyond June 2016. All of us here should be accountable for the commitments that we make ahead of any election or any referendum. All of us should do our best to implement the manifesto on which we were elected. Regardless of how much we may disagree with each other, we have a responsibility to our electorates and we are accountable to them I am left in a quandary. I will happily take an intervention from a Government Member if they can tell me this: if this place is accountable—if only!—who is accountable for providing £350 million a week to the NHS? The Government deny that they are. Who is accountable for giving Scotland lots of new powers, including powers over immigration? And who is accountable for the full access to the single market that many in Vote Leave promised? If only the EU had been successful in getting rid of double-decker buses, it would not have been so easy to splash promises across the sides of them. I would happily take an intervention about accountability for those things.
Would the hon. Gentleman like to add to his list the comments of those such as Dan Hannan, who argued for leave? He said, “Don’t worry, you can vote to leave because we will stay in the single market and the customs union.”
The hon. Lady makes an excellent and principled intervention. To double down on that, I will quote the leader of the Scottish Conservatives. The problem is that I cannot quote her directly; I will have to paraphrase what she said, because if I read out the quote, I would be held to be out of order in this place. She called into question the veracity of claims on costs in terms of the EU, and the veracity of claims made by people who are in government about Turkey’s EU membership and an EU army. I am sorry that I cannot quote her directly, but I would find myself in a bit of bother if I did.
Is the hon. Gentleman aware of the work done by Economists for Free Trade, which states that the £350 million promised to the NHS is fundable? Is he aware of the agreement yesterday at the European Union on a European army? Both those things can easily be answered.
If only the Government had seen the hon. Gentleman’s talents, he could have been in government implementing these changes. When it comes to increasing funding for the NHS, I look forward very much to the conversations that he and I will have as we pass through the same Lobby in an effort to get the health funding that was promised by people who are now in government.
Is the hon. Gentleman aware that, as we have seen today, the hon. Member for North East Somerset (Mr Rees-Mogg) has his supporters in the Cabinet? The Department for International Trade was gleefully retweeting—until it deleted the tweet—the speech that he made earlier, which called for a race-to-the-bottom, low-regulation Britain.
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.
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I will give way to the hon. Lady, and then to the Minister.
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.
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.
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.
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.
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I will not give way at the moment; I will make some progress, as I promised I would. This is the question: in any future referendum on any issue, are we all free to say whatever we like, because nobody will be held to account for what has been said?
Will the hon. Gentleman give way?
Not at the moment, because I made a promise. Surely Members from all parts of the House must recognise the damage that has been done to politics as a whole by the empty promises that were made by Vote Leave. Frankly, that is one of the many reasons why this Bill deserves to fall The right hon. Member for Birkenhead (Frank Field) made a good point about compromise. In a Parliament of minorities, we need to have compromise. It is almost a year since the Scottish Government published their compromise, under which we would have remained part of the single market—the single market was mentioned by the hon. Member for Eddisbury (Antoinette Sandbach). Leaving the European Union is not something I want or wanted, and it is not something for which my constituents or my nation voted, but the nature of compromise is one of give and take Remaining part of the single market is a compromise suggested not just by the SNP but by experts—on these Benches, we still listen to experts—and by members of other political parties, and it was pushed for by the Secretary of State for Scotland and the leader of the Scottish Conservatives as well. I urge Members to look at that suggested deal. Under our amendment 69, instead of our crashing out of the European Union, we would retain membership of the EU until we can sort this out. We will also be backing amendment 79, from our Plaid Cymru colleagues, because it is important that democracy does not begin and end in this place, and the devolved Administrations should have a key role as we go through this process. We are now in the situation where no deal is becoming more and more of a reality, as I will mention in my concluding remarks.
The hon. Gentleman will remember that the former Chancellor said during the referendum campaign that should we leave the European Union, we would be leaving the single market. That was made absolutely explicit. The hon. Gentleman has spoken about future referendums, and he wants a second referendum in Scotland. Should the Scottish people vote in such a referendum by 52% to 48% to leave the United Kingdom, will he, after much discussion, argue for a third referendum?
This is extraordinary, isn’t it? Something the Scottish Government had the decency to do before the independence referendum was to produce a 670-page White Paper. There are Members in the Chamber—I am looking at the hon. Member for Edinburgh West (Christine Jardine)—who did not agree with it. She campaigned for a no vote, and I respect her for doing so, but we had the courage of our convictions and laid out what we stood for. The mess we are in today is because the Conservatives did not have the courage of their convictions and did not lay out what voting to leave the European Union would mean A no deal would mean 80,000 jobs gone in Scotland. A city such as Aberdeen would lose £3.8 billion, and Edinburgh would lose £5.5 million, while there would also be an impact on rural areas. I welcome what the Prime Minister has said on security issues—that we should pull together—but with no deal we would lose access to EU security databases in combating cross-border crime, which would be grossly irresponsible.
May I just say that from the perspective of Northern Ireland, no deal would be absolutely disastrous? It would inevitably mean a hard border. As one of those who grew up in Northern Ireland through 32 years of violence, killing and mayhem, I am not prepared to sit in this Chamber and allow the House to go down a no deal route, which would endanger people, UK border officials and Police Service of Northern Ireland officials along the border. It is imperative that we have a deal.
I thank the hon. Lady for her intervention. Hon. Members on both sides of the House would do well to listen carefully to her words. Northern Ireland has been vastly overlooked and it continues to be overlooked, and the hon. Lady makes an excellent point. One thing that concerns me and should concern Members on both sides of the House is that we have a no deal scenario, with Ministers playing Russian roulette with our futures—the futures of people in Northern Ireland and across the United Kingdom—as well as a slash-and-burn approach to politics that will profit absolutely nobody whatsoever I will conclude by saying that we may disagree on many issues, but we come to this place hoping—I respect Members as they do this—that we will leave our constituencies, our respective nations and the UK a little bit better off. By backing the Bill with such a lack of preparedness, we will be doing no such thing: we will not be leaving future generations better off. So weak are the arguments of those who back leaving the EU—I have heard this not so much from SNP Members, because Scotland voted to remain, but from Labour, Conservative and other colleagues—that they question why we are tabling amendments rather than challenge us on their substance. We will seek to amend this Bill as it goes through the House and to find common cause with colleagues from across the House. However, we know that what we are trying to achieve, even if we do get common ground, is to make this situation not better, but less bad. That is not a situation in which any Member should ever find themselves in this House I urge Members to reconsider and I urge the Government to press the reset button. There is far more at stake than the future of this Government or, indeed, that of any Member of this House.
I want to start by simply outlining that, contrary to what the hon. Member for North East Fife (Stephen Gethins) has just suggested about there being weak arguments for why we should leave the EU and repeal the European Communities Act 1972, it is absolutely essential that we do so if we are going to have a self-respecting, self-governing democratic country. The Bill and this whole issue are about one main question, namely democracy, which is what everything else necessarily flows from. All the economic arguments and questions relating to trade and other matters are ultimately dependent on the question of whether we have the right to govern ourselves in this sacred House of Commons. That is the basis on which the people of this country make decisions, of their own free choice, in general elections—whether it is to vote for the Labour party, the Liberal Democrats, the SNP or the Conservative party—and then a decision is made in this House as to how they will be governed I repeat what I have said: we have just had Remembrance Day. I simply want people to reflect for one moment on the fact that those millions of people who died in both world wars died for a reason. It was to do with sustaining the freedom and democracy of this House.
Does not democracy presume that a Government would listen to the will of the House of Commons, whose Members are individually elected by their constituencies? Would it not be slightly odd, therefore, to proceed with the Bill without taking out the Henry VIII powers?
Put simply, on the European Union Referendum Act 2015, which was a sovereign Act of this House—the point that the hon. Gentleman has just made—the House of Commons agreed, by six to one, that it would deliberately transfer to the people the decision whether to leave or remain in the European Union. Unless that Act is repealed, I do not believe that that decision should be returned to by the House.
The hon. Gentleman has referred to the millions of people who died in two world wars. Those two world wars took place before the existence of the European Union and we in Europe, including this country, Germany and France, have lived in peace for decades. Is not it the case that France, Germany and other countries will now never, ever go to war because of the European Union?
The answer to the hon. Gentleman’s question is that no two democracies have ever gone to war with one another. I declare a personal interest in this issue because my father was killed in Normandy, fighting for this country, and I am proud that he got the Military Cross for that reason. This is something that many people in this country really understand and believe. It is not easy to explain, but it is to do with the fact that people understand the real reasons that self-government is so important The proposal in the European Communities Act 1972, which we are now repealing, was the greatest power grab since Oliver Cromwell. It was done in 1972 with good intentions. I voted yes in 1975 and I did it for the reason the hon. Gentleman mentions: I believed it would create stability in Europe. The problem is that it has done exactly the opposite. Look, throughout the countries of the European Union, at the grassroots movements and the rise of the far right, which I deeply abhor and have opposed ever since I set about the Maastricht rebellion in 1990. I set out then why I was so opposed to the Maastricht treaty: it was creating European Government and making this country ever more subservient to the rulemaking of the European Union. As I said in response to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), that has been conducted behind closed doors. We have been shackled by European laws. He asked at one point if we could give one example. The ports regulation is a very good example. We fought that in the European Scrutiny Committee and in the House of Commons, but we were not allowed to make any difference to it. It was opposed by the Government, it was opposed by the Opposition, it was opposed by all the port employers and it was opposed by the trade unions. What could we do about it? Absolutely nothing!
Does my hon. Friend agree that once Parliament has passed the repeal of the 1972 Act, Ministers will only be able to do things that this Parliament permits them to do? Today, Ministers have to do many things that the European Union insists on, which this Parliament cannot discuss or overturn.
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.
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.
I am sorry to disillusion the hon. Lady. I have been in this House for 33 years and I have been on the European Scrutiny Committee for 32 of them. I can absolutely assure her that what she says is simply not reflected by the practice of the European Union: the system is essentially undemocratic.
Does my hon. Friend not feel that it is ironic that all 12,000 EU regulations will be imported into UK law under a process that will not have the detailed scrutiny of the House, because Henry VIII powers will be used to do it?
My hon. Friend might just reflect on the fact that there is no other way of transposing the legislation. I drafted the original repeal Bill, so I understand it very well. I did so before the referendum, in fact, because—I say this to my right hon. and learned Friend the Member for Rushcliffe—I believed we would win. In reality, once we have brought this into UK law, we will be able to have our own Bills—on agriculture, fisheries, customs, immigration, and various other parts of our constitutional arrangements—that can be properly discussed and amended.
Does my hon. Friend agree that every single one of the regulations coming into UK law is already abided by in this country and in this Parliament and are to its satisfaction at the moment?
Yes, the reality is that the Bill, if and when it goes through—and I believe it will—will incorporate into UK law EU legislation already consented to in the way that my hon. Friend mentions. We have agreed to them, but unfortunately they have not had the democratic legitimacy that will be conferred upon them when the Bill goes through I proceed now to the important question of the European Court of Justice. I made this point to the Prime Minister about 10 days ago and again to the Brexit Secretary last week. I wish to mention three pieces of case law that we inherited when the treaties that had accumulated after 1956 came upon us through section 2 of the 1972 Act. The first two are Van Gend en Loos in 1963 and Costa v. ENEL in 1964. In its judgment in the first case, the European Court asserted that “the Community constitutes a new legal order in international law for whose benefit the states have limited their sovereign rights” In Costa v. ENEL, the Court ruled: “The transfer by the States from their domestic legal system to the Community legal system of rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights” In 1970, in the Handelsgesellschaft case, the Court said that community law should take precedence even over the constitutional laws of member states, including basic entrenched laws relating to fundamental rights. It does not get more profound than that. Those decisions are mere assertions by the Court, yet under section 3 of the 1972 Act, we agree to abide by them.
Will my hon. Friend agree that all treaties involve a pooling of sovereignty? We gave up immense sovereignty when we joined the United Nations and NATO, membership of which we would never dream of renouncing. The European Court exists to enforce treaty rights, including obligations on members. Does he recall probably the most important case there of modern times, when the British Government took the European Central Bank there to assert our treaty rights so that the City of London and our financial services industry could have a passport to financial services in the eurozone? It was worth thousands of jobs and showed the benefit of the Court in upholding treaty rights, including the most important treaty rights of the UK.
I also remember the case of Factortame, when Lord Bridge made it clear that by Parliament’s voluntary consent, given by virtue of the 1972 Act, an Act of Parliament—namely, the Merchant Shipping Act 1988—could be struck down. I am not trying to be disingenuous. The fact is that the 1972 Act empowers the European Court to strike down UK Acts of Parliament. That is what sovereignty is all about.
The hon. Gentleman talks about sovereignty and the pooling of sovereignty. Building on the point from the right hon. and learned Member for Rushcliffe (Mr Clarke), how does the hon. Gentleman think we will achieve new trade deals without ceding sovereignty, given that all trade deals—like EU membership, as the right hon. and learned Gentleman just pointed out—require the ceding of sovereignty?
I must say to the hon. Gentleman, and to my right hon. and learned Friend the Member for Rushcliffe, that there is a world of difference between that and having agreements by virtue of treaties in international law, which are actually matters on which it is possible to make decisions without being absorbed into and entangled in a legal order. That is the difference. It is the acquis communautaire and its principles that completely undermine the sovereignty of this House. I am prepared to concede that some people—
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I am sure that my hon. Friend will be making this point, but I will try to anticipate it. There are circumstances in which the pooling of sovereignty by virtue of, for example, NATO is claimed to be a genuine pooling, but it is not, because it is possible to withdraw from it. The whole point about the European Communities Act is that it is not possible to withdraw from it except by repealing it in this manner. That is what we are doing now.
My hon. Friend has strongly emphasised the importance of the sovereignty of the House, and I agree with him. Is it not all the more important that, as we leave, this sovereign House should have a meaningful vote on the terms on which we leave, rather than there being a “take it or leave it” vote at the end of the process? Is that not the ultimate expression of sovereignty, and will my hon. Friend therefore support it?
The answer is that I am supporting the outcome of the referendum, which, by virtue of our sovereign Acts of Parliament, we decided that we would pass over—
On a point of order, Dame Rosie. Delightful though it is to sit listening to the hon. Gentleman expatiate on all manner of things, I am struggling to discover what this can possibly have to do with new clause 49—or, for that matter, any of the amendments and new clauses linked to it.
I thank the right hon. Gentleman for his point of order. We are also debating clause 1, which is fairly wide-ranging, so the hon. Member for Stone (Sir William Cash) is in order.
I had actually spotted that, Dame Rosie, and I am most grateful to you for confirming that I am in order Let me now touch on some of the issues that arise from this continuous emphasis on the virtues of the European Court of Justice. There is the constitutional principle, which I have already explained, and there is the case law, which I have also already explained. But it goes further than that. The very great Lord Justice Bingham, in chapter 12 of his book “The Rule of Law”, describes the relationship between the courts and Parliament. He comes down unequivocally in favour of Parliament. He makes it clear that when Parliament passes a Bill such as the one that we are to enact, it will override all the laws in the European system that have shackled us so far, and also all the Court judgments, save only that we have agreed, by virtue of the retained law, to transpose some aspects of the process to which we have become used, and which we can decide what to do with at a future date.
Will my hon. Friend give way?
I certainly will; I should be only too delighted. I have been waiting to hear from my right hon. and learned Friend, whom I happen to know very well, and for whom I have great respect. I shall listen to him with interest.
I do not think my hon. Friend can have it both ways. A moment ago, he was talking about direct effect. There is no doubt that if we leave the European Union, direct effect will cease on the day we go; but, as I am sure he knows, we are signed up to about 800 treaties with arbitral mechanisms that can lead to judgments affecting the United Kingdom, which we then undertake to implement, sometimes by changing our own laws. I do not quite understand why my hon. Friend has such an obsession with the Court of Justice of the European Union if its direct effect will be removed, although we will have to be subject to it during the transitional period as we are leaving.
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—
Will the hon. Gentleman give way?
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.
If the hon. Gentleman is so opposed to the European Court of Justice, what is his dispute resolution mechanism going to be? Independent states need a dispute resolution mechanism where they cede sovereignty; they give some of their sovereignty and get some of somebody else’s sovereignty. What is that going to be?
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Order. I been generous in allowing the hon. Gentleman to range over a number of subjects, but I gently remind him that there are a lot of speakers in this debate, so I am sure his list about the European Court of Justice is now a little shorter than it was before.
I shall conclude my remarks on this point. The European Court is seriously deficient in a whole range of matters. On the question put by the hon. Member for Na h-Eileanan an Iar (Angus Brendan MacNeil), the idea has been put forward by Martin Howe QC, and I have put it forward myself in the House, of a system of jurisdiction that would be more in the nature of an arbitration, where there might be, for example, retired European Court judges or whoever, who would adjudicate—but on a bilateral basis, not on the basis of a decision taken by the European Court. It is possible to come up with a solution, therefore, but I do recognise the problem We are now embarked upon a massive restoration of self-government in this country. This Bill is essential to achieve that, and should be passed without any of the obstacles and frustrating tactics being put in its way.
I rise to speak to amendment 386, which has cross-party support and which I tabled late last night. The Minister said that it was somehow introducing “chaos” into this process. With the greatest respect, after a fortnight in which we have seen the Foreign Secretary, the International Development Secretary, the former Defence Secretary, the current Defence Secretary and the Cabinet Secretary all subsumed in controversies, I think the Government are doing quite well on the chaos front without any help from me. Also, the idea that taking the exit date out and putting it into a different Bill would create chaos when, just five days ago, Ministers did not want it in any Bill at all, makes the Government’s argument look rather silly The amendment would require Parliament to vote on the terms of withdrawal through primary legislation before Brexit day. That would mean that exit day would be set in UK law not in this Bill but in a future Bill, either in the withdrawal agreement and implementation Bill that the Government announced yesterday or, if there is no deal at all, through an alternative Bill setting out the terms of departure and presumably whatever implementation plan would be needed in those circumstances The purpose of the amendment is not to dispute the Government’s intentions about the timing of exit day; it is simply to ensure that there is a proper parliamentary and democratic process before we get to that date. The central focus is not the date itself but a requirement on the Government to do as they have promised and set out a meaningful vote for Parliament in advance of that date. The amendment would also ensure that Parliament could properly respond, whatever the outcome of the Government’s negotiations, rather than being inadvertently timed out if things were to go badly wrong Yesterday, we learned from the Government that there would be a second Bill to implement the withdrawal agreement, and that is welcome. That was the subject of other amendments that the right hon. and learned Member for Beaconsfield (Mr Grieve) and I had tabled because we were concerned that Parliament should not give the Executive a blank cheque through this Bill on the implementation of a withdrawal Bill that had not yet happened. Rather less welcome was the Government’s admission that the legislation might not actually happen before Brexit day. Even less welcome was the Brexit Secretary’s admission that the vote on the withdrawal agreement would simply be a take-it-or-leave-it vote, and that therefore if the Government negotiate a bad deal, if they have no implementation plan in place or if other things go wrong along the way, Parliament would simply have to accept that or choose to have no deal at all Under the Government’s proposals, Brexit day would be embedded in primary legislation through this Bill, and it would therefore become legally and constitutionally possible for Ministers simply to let us drift towards exit day without Parliament being able to insist on any kind of implementation preparations or any kind of plan at all. Such a concentration of power in the hands of the Executive would be unacceptable. No legislature should ever accept that: certainly not this legislature right now when we were given a hung Parliament by the electorate less than six months ago; and certainly not our Parliament, whose sovereignty has been such a key issue throughout the debates on the referendum. The amendment would strengthen the democratic process around Brexit and ensure that Parliament could vote on the terms of withdrawal, whether there was a deal or not, before exit day. It would implement the Government’s commitment to a meaningful parliamentary vote. If everything goes according to the Government’s plans and promises, if they get the timetable they want for the transition agreements being agreed in the early part of next year and the withdrawal plans agreed by the autumn, and if we get the kind of deal that the Government have promised, with all the benefits that it will bring, all that the amendment would do would hold the Government to that by implementing their intentions and their timetable. It would hold the Government to what the Brexit Secretary said yesterday was his primary plan for the timetable. It would hold Ministers to that plan on the face of the Bill. It would also prevent the Government from delaying the withdrawal agreement legislation beyond the withdrawal date. It links the timing of exit to the terms of exit in the parliamentary process. It would prevent Parliament from being timed out because it would give Parliament the final say. If the Government’s plans go wrong—I hope they will not—it also gives Parliament a say in how the country should respond. For example, if we end up with no deal at all, if we run out of time—I hope that will not happen—or if the whole thing goes belly up, it gives Parliament a role. It allows for a debate on whether the Government should go back to the negotiating table or just walk away. It allows for a debate about the timing of Brexit day. It allows Parliament to debate and decide, rather than just throwing up our hands and leaving it to Ministers—rather than just drifting along.
My right hon. Friend is making an important point. This morning, she and I both heard the Mayor of London clearly set out the implications of not having a security treaty for the safety of London, let alone the rest of the country, so I wholeheartedly agree with her points.
My hon. Friend is right. That was the evidence we heard. Parliament has a responsibility to have a contingency plan. Whatever it is that we hope might happen over the course of the next 12 months, we have a duty to ensure that we have plans in place for every eventuality and that Parliament itself can take some responsibility Right now, with the Government’s amendments made and without my amendment, it would theoretically be possible for us to just drift towards exit day without any substantive opportunity for Parliament to step in perhaps to amend the withdrawal terms in the Bill or maybe to require the Government to change their plan or to go back and negotiate some more. That would be up to us in Parliament to decide, but we will not get the chance to decide under the Government’s current plans.
Has the right hon. Lady noted the sensible comments of the chairman of the Policy and Resources Committee of the City of London corporation? While an orderly Brexit might not be the desired outcome for the right hon. Lady and I, an orderly Brexit with a proper transition and with this House having a proper say is manageable for our financial services sector. However, a disorderly Brexit that was the result of our inability to extend negotiations for a short period if need be, for example, would be a disaster for this country and is regarded by some firms as being on the same level as the threat to cyber-security. On that basis, is it not foolish for the Government or the right hon. Member for Birkenhead (Frank Field) to try to put a leaving date on the face of the Bill?
I share the hon. Gentleman’s concerns. As Select Committee Chairs, he and I have both heard evidence about security and wider issues, and I also share with him my personal views about the importance of having a transition period and a smooth process. To be honest, whatever people’s views on whether there should be a transition and on how we should respond to different negotiating outcomes, it should still be for Parliament to debate and to decide before exit day, not after. That is what Parliament should be for. Frankly, the Government would be irresponsible not to give Parliament the opportunity to debate and take a view on the terms and on the timing once they have been agreed There is a con in what the Minister said earlier, because the Government actually do recognise that there may be circumstances in which exit day has to be changed. The Minister said that clause 17 will not apply and that somehow it will not allow the Government to change the exit day through regulations after it has been agreed in the Bill, but that is not the advice I have had—it is not the advice the House of Commons Library gave me this afternoon, for example. In fact, the combination of clause 9 and amendment 383 will still allow Ministers to change exit day, if they so choose and if they think it appropriate. That is the impact of the Henry VIII powers throughout the Bill We understand why Ministers might want a provision to be able to come back and say that exit day needs to change because we have reached the 11th hour, because the negotiations need to be extended by an extra month or because the process needs to be changed. Ministers have kept that power in the Bill for themselves, but why should the power be reserved just for Ministers? Why cannot Parliament have that power, too? That is the flaw at the heart of the Bill. If in unforeseen or difficult circumstances Ministers need to change the timetable, they can, but Parliament will have no choice, no say and no ability to do so.
Does the right hon. Lady agree that, if Parliament did have that opportunity, it would be taking back control and sovereignty would be returned not to the Executive but to this House?
The hon. Lady is right. We had all those debates about taking back control and parliamentary sovereignty, yet somehow the Minister seems to want to rip it all up. The Government are trying to concentrate huge amounts of power in the hands of Ministers, rather than giving the whole of Parliament a say Ministers have to stop infantilising Parliament and treating Parliament as if it is the enemy. The truth is that the sky did not fall in because Parliament had a vote on article 50. The Government told us that it would, and they told us that the whole process would be stopped, but it was not stopped because each and every one of us understands that we have obligations and responsibilities towards the referendum result, just as we have obligations and responsibilities towards the negotiation process that the Government have to conduct on our behalf, and that we cannot directly conduct for them. We know that we have those different responsibilities, and we know that we have to take mature and responsible decisions given the complexity of the situation that faces every single one of us. We just do not think that those decisions should be entirely in the hands of Ministers; we think that the whole of Parliament should have a say on something so important.
My right hon. Friend is making an incredibly powerful speech and argument. Does she agree that having the vote and support of Parliament behind the Government and the action they take would strengthen the Government’s hand in the negotiations with the European Union?
I agree with my hon. Friend, because this should be about the whole of Parliament, just as when we had the responsible debate on article 50. We know it is complex. It is our job and our responsibility in a democracy to deal with that complexity, and not just to abdicate our responsibility and hand it over to Ministers because, somehow, it is too difficult for us in Parliament to deal with. Of course it is not too difficult, and of course we are capable of dealing with the complex situation we face.
Does the right hon. Lady agree that we simply have not had the debates? That, of course, is not lost on the European Union, and it is also not lost on the people of this country. If we had those debates and if we had a real say on what Brexit will look like, we would begin to form a consensus and we would begin to bring people together across the United Kingdom in getting that good deal, reuniting so many divided communities, families and even friends.
I agree with the right hon. Lady. The truth is that the plans for our Brexit future have to be sustainable and have to command consent. The plans will have implications for many decades to come. They have to give us the chance to heal the Brexit divide across the country from the referendum, and they have to give Parliament the chance to debate the details and to have a proper, honest debate about what it will mean across the country.
Does my right hon. Friend agree that had things gone differently in last week’s debate and had the information been laid before the House, emotions might not be running so high?
Clearly, we need more transparency I want to draw my remarks to a close. My amendment gives Parliament the opportunity to indeed take back control. The hon. Member for Stone (Sir William Cash) said he wants us to debate in this House how we are governed. Well, then he should vote for my amendment, rather than concentrate power in the hands of Ministers. At a time when we have seen democratic values and democratic institutions undermined and under threat right across the world, we have an even greater responsibility to ensure that there is a proper democratic process and that we follow our obligations that come with the parliamentary Oath we took. So much of the debate we had during the referendum was about parliamentary sovereignty. What my amendment does is make that real.
It is a great pleasure to follow the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) in this debate, particularly as the matters on which I wish to touch very much concern her amendment and some of the others we have had I hope that the House will forgive me if I start by dealing briefly with the opening remarks of the right hon. Member for Birkenhead (Frank Field). I am sorry he is not in his place, but I hope that he will forgive me if I say that the words he articulated were ones that I could fully understand and appreciate—heaven knows I have heard them often enough from constituents and from right-thinking people who want the best for our country—but that contained simplicities. Those simplicities simply do not match the problems this House faces in disentangling us from our relationship with the European Union. This issue has bedevilled the entire debate on Brexit and remain, and it is one reason why we find ourselves where we are today I happen to believe that what we did last year was a great and historic error. I cannot help it, and nothing that has happened since is going to alter my view. I recognise my responsibility as a Member of Parliament to try to give effect to what the public asked for in their response to that referendum. But in doing so, I am certainly not willing to suspend my own judgment, particularly when I have to witness what I see as an extraordinarily painful process of national self-mutilation, which I am required to facilitate. I cannot escape that; that is what I feel, and I am not going to abandon it because I am ordered to do so by anybody else With that in mind, I have to say what the right hon. Gentleman is asking for is the desire perhaps of many people in this country, which is to go to bed at night and wake up to find that the whole thing is over and done with. Unfortunately, it is not going to be over and done with for a very long time. The problem we have in this Bill, and on which we have to focus, is how we try to take this risky, dangerous—for our economy, our national security and our national wellbeing—and difficult process to a reasonable outcome. That is the challenge we have got. In doing that, Parliament cannot simply abdicate its responsibility to the Executive. Of course the Executive have to get on with the business of the complex negotiations, but Parliament is entitled to take a check on this at every conceivable stage I have to say to my colleagues on the Treasury Bench that the problem is that as the difficulties have piled up—in my view, they were inevitable, predictable and predicted—the tendency has been for everybody to get more and more brittle, more and more unwilling to listen, and more and more persuaded that every suggestion that is being made is in some way a form of treason. I have to say, with the deepest regret, that this culminated last Friday with a mad amendment, which I shall come back to in a moment. It was tabled, I believe, without any collective decision making in government at all and it was accompanied by bloodcurdling threats that anybody who might stand in its way was in some way betraying the country’s destiny and mission. I am afraid that I am just not prepared to go along with that.
I welcome the amendment tabled by the right hon. and learned Gentleman that would remove the Alice “Through the Looking-Glass” absurdity of there being different exit days for different purposes. I was an early signatory to all his amendments because they are eminently sensible. The right hon. and learned Member for Rushcliffe (Mr Clarke) described entertainingly the reasons for the remarkable metamorphosis of the Bill, from one that allowed Ministers to name an exit day or different days by regulations into one that names a day and a specific time. It was a sop to the denizens of what he called the fourth row below the Gangway. Has the right hon. and learned Member for Beaconsfield reflected on what such a fundamental change signals to our partners in the European Union about how serious we are and how carefully we have thought through this crucial process?
There is no doubt that some of the problems we have are not going to be helpful in our negotiation. Equally, it is right to say that the more we can have mature, considered and sensible debate in this House, the more we improve our ability to negotiate with our EU partners I have tabled a number of amendments. As with all amendments, some are multiple choice—we have to do this in this House, because it is how we go about looking at and examining legislation—and some are probing amendments. Some are, in my view, more important than others. I tabled the one that hon. Gentleman highlights because the Government did not really explain that they wanted multiple exit dates. I wanted to tease out why and to suggest that one exit date might be better because of the consequences for the use of Henry VIII powers thereafter, but there might actually be a justification for what the Government are doing. All that needs to be worked through in the legislation, and that is what I have sought to do I say to my right hon. and hon. Friends on the Treasury Bench that over past weeks we have had some really sensible, constructive discussions on some of the areas covered by the amendments that I have tabled. I hope very much indeed that we can achieve some degree of consensus, in which case some of the amendments, whether on triage or the way we treat retained EU law, might not be required. I do not wish to get diverted into all that; I shall come back to it in later debates. The trouble is—I repeat this—that it all gets marred by events such as those last Friday, when extraordinary amendments are suddenly magicked out of the blue that simply do not make any sense at all When I read the amendments and those consequential on them, which I must say I saw only this morning, I saw another problem: as has already been highlighted, one of the consequentials seemed to me to totally undermine the purpose of the main amendment, to the point where the conspiracy theorist in me made me think it was a sort of double deceit or double bluff—that it was intended in some way to give the impression to some of my right hon. and hon. Friends who really worry about this that they were being offered this tablet of stone on our departure, but it was in fact teasingly capable of being shifted. My hon. and learned Friend the Solicitor General sent me a text earlier that said that I was mistaken and that that was not the intention—that it was the very reverse I am not a parliamentary draftsman, and I know that there are always different ways in which an amendment to a statute can be read. I remain of the view, though, that the wording is very peculiar indeed if the intention is to exclude the possibility of playing around with the exit date, which is being offered as a talisman. I must say to my hon. and learned Friend the Solicitor General that I did naughtily begin to wonder whether in fact the parliamentary draftsman was so appalled at the folly of what the Government were doing that he had sneakily altered amendment 383 to try to offer them a lifeline in case they came to regret what they had done. I am sure that that is being very unfair to the parliamentary draftsman, whom I know always does what is requested of him or her.
The tendency of any Government, especially when they have such a major project on their hands, is always to try to manage the project and to manage Parliament. Has the right hon. and learned Gentleman discovered over recent weeks that the sad truth of the matter is that there is a consensus in the House that embraces all those on the Opposition Benches and a significant number of Government Back Benchers? It actually embraces half the Government—I can see at least three, possibly four, Ministers sitting on the Front Bench who would sign up to his amendment. Would not it be far more rational for the Government simply to calm down about this process and try to establish a consensus that can carry the country forward?
I endorse what the hon. Gentleman says. That is precisely what I wanted to start suggesting to Ministers. There are a number of key areas in this debate this afternoon. The first is the recognition, belated but nevertheless I am grateful for it, that leaving the EU requires statutory authority from this House to make it part of the rule of the law of our land. It is a very important principle. Indeed, I detect that the Government also recognise that if, at some point in the future, we get beyond transition we will probably need another statute to alter the law of our land for any final agreement that we have with our EU partners. We will have to take it in a measured way, and the Government will have to accept that Parliament, being sovereign, must, at the end of the day, have the ability to support or reject this. There is no way around that Of course there are the hypothetical questions, such as “Well, there might be nothing to reject because we might be falling out of the European Union with no agreement.” Indeed, yes, but we will discover that when the time comes. In the meantime, the Government must get on with their negotiation, and we can carry on scrutinising them on that. At the end, we want a statute. That statute—I think that this has been acknowledged by the Secretary of State—has got to come before we leave That then brings us to a critical issue in this debate. The best point made by my right hon. Friend the Secretary of State yesterday was that, whereas moving into transition is a qualified majority decision, getting an extension to article 50 requires unanimity. Therefore, the Government may be living with legitimate anxiety that there could be circumstances in which, running up to the wire, there could be difficulty implementing the whole thing by statute. I personally think that that seems inherently improbable, because, on the face of it, if our partners agree a deal with us, why would they then decide to pull the rug from under our feet in such an extraordinary fashion—I know that they talk about “perfidious Albion”, and we probably think that they are all garlic eaters—to tell us that we cannot have an extension to article 50 for the necessary two or three months to take through our statutory processes while they have to take their processes through the EU Parliament?
Was the right hon. and learned Gentleman alarmed, as I was yesterday, when, after mentioning to the Secretary of State that the Prime Minister had asked in September for a two-year extension—six months after she had triggered article 50 —he did not seem to have a clue when the EU 27 might possibly agree to it? Some of the media think that that extension will automatically happen, but, as we speak, there is absolutely no guarantee that we will get it. Is he alarmed that the UK might indeed find itself out because of its own actions in March?
There are massive uncertainties in all this, and I do not want to pile the gloom on the Treasury Bench. All I will say is that there are great risks. I do understand that the Government have an important point on this, but if that is the case, the proper dialogue that should be taking place between those on the Treasury Bench and the House is how we craft and alter this legislation both to emphasise the statutory process to be followed and to make sure that the only circumstances in which it is not followed—clause 9 has to be used as an example—is where it would be impossible to get an article 50 extension to enable the statutory process to take place before we go. If we do that, we will start talking sense in this House, rather than the polemical nonsense that we have been talking over the past few days.
When Czechoslovakia decided to form two countries with two Governments—a very complicated task—it took six months planning and was implemented over a weekend. Why does my right hon. and learned Friend think that the 16 months remaining is not enough time in which to reach an agreement or to reach the sad conclusion that an agreement is not possible in the mutual interests of both sides, and to do all that in an orderly way? Surely 16 months is more than enough time to sort this out.
I cannot help it that the reality is that we entered into a partnership that now includes 27 other member states. We cannot just magic that away; they all have their interests, and they will all have to be taken into consideration at the end. As we have seen with trade agreements that are reached with the EU and other states, they take time. Indeed, my right hon. Friend and some of my other hon. Friends are, frankly, delusional in their belief of the speed with which these wonderful new trade agreements with third countries will be concluded once we leave the EU. My main anxiety on that topic is that there are 759 external treaties that come through our membership of the EU and that we are in danger of losing with amendment 381, tabled by the Government, in respect of putting a writ-in-stone date on when we have to leave. That should worry us just as much as any other aspect of leaving the EU.
Is not the real ludicrousness of amendment 381 that it is unenforceable and there is no punishment if that law is broken? As a former Attorney General, will the right hon. and learned Gentleman tell us the point of having a law for which—if the date is extended and the law broken—there is absolutely no consequence? The Minister will not be sent to prison for breaking it. It is a worthless political gesture.
I hope that the hon. Gentleman will forgive me, but I do not entirely agree with him. If the measure stays on the statute book, the consequence would be that at 11 pm on 29 March 2019—even if the agreements, transitional arrangements and everything else have not been worked out—we will drop out of the EU, potentially into the void that so much of this legislation is apparently designed to prevent. All the possible benefits of continuing in transition would not be available, so this actually matters very much indeed. That brings me—although I do not want to take up the Committee’s time—to the infamous amendment 381 Amendment 381 was sprung on the House, sprung on the Conservative party and certainly sprung on me—after weeks of talking gently to my ministerial colleagues and trying to find a sensible way through, which I continue to want to do—and suddenly landed on us as a diktat. It is quite simply unacceptable because it fetters the Government’s ability to carry out this negotiation, which makes me seriously question their competence, and it disenfranchises the House from properly exercising its scrutiny role, with the potential that, in fact, is almost an invitation to running into the buffers. Although I do not happen to believe that this is what the Government want to do, it certainly appears to play into the hands of those who seem to be so eager that we should leave the EU with absolutely no agreement whatever I seriously worry that I go to audiences of the kind that seem to extol the virtues of some of my colleagues on this side of the House, and I am told that only a departure from the EU without any agreement at all can detoxify us of the taint of our participation. Those were the very words used to me at the Conservative party conference. All I can say is that the individuals who are saying these things are utterly misguided, do not understand how a parliamentary democracy works and do not understand how an international community operates. But, whatever their grievances may be, they are the people to whom we have to sensibly articulate an alternative approach I am really pleased that amendment 381 cannot be put to the vote this afternoon, because I have to say to my right hon. and hon. Friends that I will vote against it. There are absolutely no ifs, no buts and no maybes about this—no arm-twisting and nothing that can be done to me in the intervening period. It is unacceptable and I will not vote for it. I will not vote for it if I am the only person to go through the Lobby to vote against it. The sensible thing for Ministers to do is to go away, have several cups of tea, think again, continue talking to me about all the other sensible things we have been talking about and on which we are likely to reach agreement, and just focus for a moment on where there is unanimity in this House about how we should proceed.
Order. I remind the House of what Dame Rosie said earlier: there is a long list of colleagues still waiting to speak, so unless we have brief contributions, many colleagues will be disappointed, because the first votes come at 6.51 pm.
I rise to speak to Plaid Cymru’s amendment 79, standing in my name and those of hon. Friends from several parties. This amendment to clause 1 would require the UK Government to gain the consent of the devolved Parliaments and Assemblies before they repealed the European Communities Act 1972. It would require proper consideration, consistent with the constitutional settlement within these islands, for the Prime Minister to have all four parts of the UK in agreement before the European Union (Withdrawal) Bill could come into force While in each of the devolution statutes the UK Parliament retains the power to legislate in relation to devolved matters, the Sewel convention requires that it should not normally do so without the consent of the relevant devolved legislature. The Supreme Court, in the Miller case on triggering article 50, found that the Sewel convention is no more than that—just a political convention without legal standing. However, to proceed without the available agreement of at least two parts of the UK—Scotland and Wales—and with the agreement of the other parts ascertained only in ways that are obscure to me, and even in ways that are not normal, as the Government appear to intend, would be foolhardy and, indeed, outrageous As far as I can see—I hope the Minister can correct me—the Government have launched into this process without properly considering how the views of the four parts of the UK could be ascertained; without proper consideration of the views of the Scottish and Welsh Governments; with the means of ascertaining the views of Northern Ireland unavailable; and with the elephant in the room, of course, being the need to explain precisely who speaks for England—something that is always unconsidered or unspoken in this place What we do know, however, following the publication of the EU withdrawal Bill, is that the Scottish SNP and Welsh Labour Governments issued a joint statement calling it “a naked power-grab”. They have since made it clear that the Bill as it stands would be rejected by the respective devolved Governments. Given the continued lack of an elected Assembly in Northern Ireland, given that the Government here in Westminster are being compelled unwillingly to take powers to themselves, and given that the dispute between the parties in Northern Ireland appears to be no closer to resolution, it is also unclear how opinion in Northern Ireland is to be gauged.
The hon. Gentleman’s amendment refers specifically to a resolution of the Northern Ireland Assembly. There is not a Northern Ireland Assembly in place to grant such a resolution. While we hope there will be one soon, we surely have to countenance the possibility that we could get through to March 2019 still without one, so how would his amendment enable the European Communities Act to be repealed if there is no Northern Ireland Assembly to pass a resolution?
As I said, it is unclear to me what the situation is in Northern Ireland. I have heard the rumours, one way or another, that they are extremely close to a resolution other than on the Irish language—[Interruption.] It is being motioned behind me that perhaps that is not the case. However, anything could happen The principle of our amendments is that the democratically elected Assemblies in Wales and Northern Ireland and the Parliament in Scotland should have their say.
It is a constitutional convention of the utmost importance that legislative consent is given by all the devolved institutions, particularly on such a major constitutional change. The fact is that we have no Northern Ireland Assembly and no expectation of having one in the near future. However, even if I were to be surprised by the fact that the main parties—the DUP and Sinn Féin—could agree in an Assembly, the figures are such that the majority of the 90 MLAs are anti-Brexit and will not give legislative consent to this Bill. The Government’s Bill is going nowhere without the legislative consent of Northern Ireland, and that will not be forthcoming.
I thank the hon. Lady for making that point. I am loth to stray into Northern Ireland politics for extremely clear reasons.
I would avoid it.
I take that advice. I say only that it has been suggested that some in Northern Ireland would surely see the Government’s taking this decision with no Assembly in place as being the diktat of a governor general, or at the very least unwise as a basis on which to proceed As I said, the elephant in the room is the question of who speaks for England. This is the last constitutional conundrum—the constitutional exceptionalism that successive Governments have failed to address in this place. Who speaks for England? Clearly on this matter, it appears that this Conservative Government do so. Are the Labour Opposition sanguine about that? I hope to press this amendment to a vote. I do not know how Labour will vote on it, but I remind them that their Labour colleagues in Cardiff are certainly not sanguine The Minister may point to the resurrected Joint Ministerial Committee as a cover for—
Members will no doubt be aware that the Joint Ministerial Committee on EU Negotiations has met only twice in the past year. Does my hon. Friend agree that that Committee fails to afford the devolved Administrations a real voice in these negotiations and that in its current form it is wholly inadequate for the purpose of facilitating discussion and agreement?
I thank my hon. Friend for making that point. I was obviously about to come on to that matter The Government might wish to use the Joint Ministerial Committee as a cover for proceeding with this matter, but so far that Committee has not proved itself to be a substitute for proper agreement obtained directly with the Welsh Assembly and the Scottish Parliament. The JMC—as obscure to many Members in this place as it is to the press and the population at large—met in February and did not meet again until October, during which period the most important and momentous events were taking place and fundamental decisions being taken. Following the October meeting, the Government sought to gloss over the real concerns of the Scottish and Welsh Governments, but as I said earlier, these have now been made clear In the Brexit Committee on 25 October, I asked the Brexit Secretary what the formal relationship was between himself and the First Secretary of State, who is handling the JMC. I asked: “What is the formal relationship between your Department and his on this specific issue?” He replied, “there is none at all. He is one of my oldest friends”, to which I replied: “He is a very fine man, I am sure.” I have been in this place for long enough—though not in government—to know the ways of Whitehall working. There are two conditions: where there is a formal relationship between Departments and there is accountability, and where there is no formal relationship and there is no accountability. In the case of the JMC, there is no formal reporting back but perhaps a chat between old friends. I have a large number of old friends—fine people whom I respect—but I certainly would not base my decision about the future of my children and my grandchildren on an informal fireside chat.
Does the hon. Gentleman agree that the crucial issue is not the one he deals with in amendment 79, but whether the Government respond to the cross-party amendments about the Scotland and Wales Acts and other important matters, in line with what the Scottish and Welsh Governments have said? Responding to those amendments in a positive way would show true respect for the constitutional settlement, which the Government have yet to show.
I am arguing in favour of my own amendment, but I accept the force of the hon. Gentleman’s words. As he knows, we have supported several Labour amendments Plaid Cymru has warned of the problems for quite some time. We wrote to the Welsh Secretary over the summer outlining our opposition to the withdrawal Bill and asking for answers about what would happen if the Welsh Assembly withheld consent. The response that we received in September was an aspiration, and it was wholly inadequate. It merely replayed the mantra: “We want all parts of the UK to back the Bill.” It was no response at all We raised the matter during a general debate on Brexit and foreign affairs on 26 June, during Brexit ministerial drop-in sessions on 19 July, during the debate on the Queen’s Speech on 26 July, in Welsh questions on 6 September, on Second Reading of this Bill on 11 September and during oral evidence sessions in the Brexit Committee on 17 October. Not once has a Minister told us how the Government plan to proceed if the devolved legislatures do not support the Bill. The only conclusion that we can draw, therefore, is that the Government will press ahead regardless. It is, after all, their legal right to do so, for the time being.
It would be absolutely fascinating if the Government pressed ahead regardless, against the backdrop of three out of the four Assemblies or Parliaments of the United Kingdom opposing such pressing ahead. That would really show that we were not in a union but in an absolute superstate, which is what many Members say they are trying to get away from.
Amendment 79 might elucidate that point, which the hon. Gentleman put well. The final step of trying to prise an answer out of the UK Government about how they will react if the devolved Parliaments reject this Bill is to gauge their reaction to the amendment, which calls for the Sewel convention to be legally binding in relation to the Bill. That is why, with permission, I will press the amendment to a vote. It already has the support of the SNP, the Liberal Democrats, the Green party and, I understand, at least one Labour MP. In my view, it would be unthinkable for Labour, which is the largest party in Wales, to oppose Wales having a say, contrary to the stance of their colleagues in Cardiff. If the UK Government are deadly serious about having all four nations on board, and if they are determined to respect the Respect agenda, they will accept the amendment. If not, we must assume that the Prime Minister intends to ignore the clearly expressed will of the National Assembly for Wales and the Scottish Parliament, breaking her promise of working closely with the devolved Administrations to deliver an approach that works for the whole UK. I urge everyone in this House to support amendment 79.
Clause 1 of this historic Bill is the most important constitutional matter to come before the House of Commons since the 1972 Act. I have read some of the debates that Parliament conducted at the time, and we could indeed say that the repeal is more significant than the House believed the original Act to be. When the original Act was passed, the Government reassured the House that it was no surrender of sovereignty to a supranational body and no major transfer of power. They told the House that it was, instead, a major development of a common market; that the areas in which the European Economic Community would have competence would be very narrow and limited; and that the UK would preserve a veto so that if the EEC proposed anything the UK did not like, the UK would be able to exercise its veto and show that Parliament was still sovereign That was a long time ago. Over the years, what appeared to be a modest measure to form a common market has transformed itself into a mighty set of treaties and become, through endless amendment and new treaty provision, a very large and complex legal machine that is the true sovereign of our country. It has exercised its sovereignty through the European Court of Justice, the one supreme body in our country during all the time we have remained in the EEC and, now, the EU. We have seen how that body can now strike down Acts of Parliament, prevent Ministers from taking the action they wish to take and prevent this Parliament from expressing a view and turning it into action.
Will the right hon. Gentleman give way?
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.
Will the right hon. Gentleman give way?
No. I have already explained that I am conscious that many colleagues wish to join in the debate I just hope that right hon. and hon. Members on the Opposition Benches will recognise that, far from this being a denial of democracy as some fear—they seem to think it is some kind of ministerial power grab—this legislation will be the complete opposite. Once it has gone through, no Minister of the Crown, however grand, will be able to use the excuse that they had to do something to satisfy the European Court of Justice or the European Union. They will have to answer to this House of Commons, and if they cannot command a majority for what they wish to do, it will be changed. That is the system that I and many Opposition Members believe in, and that is the system we are seeking to reintroduce into our country, after many years’ absence, by the passage of this legislation There are concerns about whether the date of exit should be included in the Bill. I think it is good parliamentary practice to put something of such importance on the face of the Bill, and to allow us extensive debate—as we are having today, and doubtless will have more of before the completion of the passage of the legislation through both Houses—so that the public can see that we have considered it fully and come to a view I listened carefully to the right hon. Member for Birkenhead (Frank Field) and I have a lot of sympathy with what he was trying to do, but I will take the advice of Ministers and support their particular version of the amendment. I will do so for the reasons that were set out very well by the Minister: we need complete certainty, and that requires a precise time of transfer. People need to know which law they are obeying and to which court they are ultimately answerable, minute by minute, as they approach the transfer of power on the day in question, and that is a very important part of the process. I hope those who have genuine fears that we will not have enough time to negotiate are wrong. I think 16 months is a very long time to allow us to see whether we can reach a really good agreement. Of course, we all hope that we can reach a good agreement. Some of us know that if there is no agreement, it will be fine. We can trade under World Trade Organisation terms and put in place, over the next 16 months, all the things we need to do, on a contingency basis, to make sure that if we just leave without an agreement, things will work I appeal to all Members to understand that, although most of them may not want that contingency, it is a possible outcome. We cannot make the EU offer a sensible agreement that is in our mutual interests, so surely this House has a duty to the public to plan intelligently and to scrutinise Ministers as they go about putting in place the necessary devices to ensure that it all works The Chair of the Home Affairs Committee should relax. She is talented and quite capable of leading her Committee, and I am sure that it can make a valuable contribution. Nobody is stopping her or her Committee scrutinising, asking questions, producing ideas or helping the Government make sure that there is a smooth transition. She and I both believe in parliamentary democracy. She has an important position in this House and I wish her every success in pursuing it, in the national interest, so that Ministers can be held to account The task before us should be one that brings Parliament together. We should not still be disputing whether or not we are leaving. We let the British people decide that and then this House voted overwhelmingly to send in our notice. I explained at the time that that would be the decision point—most Members took it relatively willingly, others very willingly—and we now need to make sure that it works in the best interests of the British people I urge the House to come together to work on all those details, to make sure that we can have a successful Brexit, even if a really good agreement is not on offer after a suitable time for negotiation; and I urge the European Union to understand that it is greatly in its interests to discuss as soon as possible a future relationship. If it does not do so soon, we will simply have to plan for no agreement, because it is our duty to make sure that everything works very smoothly at the end of March 2019.
It is, I think, a pleasure to follow the right hon. Member for Wokingham (John Redwood), who invited the House to come together and sort these problems out. The problem with his invitation, however, was exposed by the rest of his speech, in which he argued that if we do come together, it has to be on his terms. There is no scope for those of us who believe that there is a different way of doing this; we can only do it in the way in which he and those who have agreed with him over many years think it can be done. That is an invitation that I am more than prepared to resist I rise to speak in favour of the helpful amendment tabled by my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) and that tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve), to which I am also a signatory Before I move on to those amendments, I would like to say a word about the speech by my right hon. Friend the Member for Birkenhead (Frank Field). He is a good friend of mine: I have known him for many years and have always respected him. He compared this process to that of buying a house. That is a seductive way of looking at it, but he neglected to mention that the process of buying a house includes something called sold subject to contract. Article 50 might represent “sold subject to contract”, but we have yet to see what the contract is. My right hon. Friend’s analogy is perhaps more apposite than he realised, because perhaps we are in such a process but at a completely different stage from that which he suggested I will return directly to the argument by the right hon. Member for Wokingham about why the House should come together. Many of us believe that while that might be possible at some point, we are not at that point yet. I have two yardsticks to apply before I decide—if I am given the opportunity, provided by the two amendments I referred to—whether it is the right thing to do Everybody has rightly said that the people voted to leave. That is true. They did so by a smallish margin, but they did. In my constituency, they voted in exactly the same way as the national result. There is an obligation on us to recognise, acknowledge and deal with the implications of the referendum vote. What the people did not vote for, however, was an agreement the dimensions of which we do not even understand. That is where we are at the moment The first yardstick I will use to judge the question is the points my constituents raised with me on the doorstep. First, they said they would vote to leave because they did not like the amount of immigration. I argued with them, but that was the point they put to me. Secondly, they argued for parliamentary sovereignty. I tried to explore that more fully, but it did not often end up in a productive conversation. Thirdly, they argued for greater economic freedom. Other arguments were made and will no doubt be debated, but they were the three main issues raised with me on the doorstep I come back directly to the question put by the right hon. Member for Wokingham. What are we as a House supposed to unite on? At this stage, I do not know whether any of the reasons for my constituents to vote the way they did will be addressed—they certainly will not be addressed by the Bill—by the Government’s final deal. I do not know, the Government do not know, my constituents do not know and the House does not know, yet we are somehow being asked to take it on trust that at some point all will be revealed and there will be nothing to worry about. Forgive me, but I have been in this House for a number of years, in opposition and in government, and I know there is always something to worry about, particularly when the Government do not even know what the end of the process is likely to bring.
Will the right hon. Gentleman give way?
I will give way, but only this once because I want to conclude.
Is the right hon. Gentleman’s implication that unless he is satisfied with an agreement he will not allow us to leave the European Union?
I will answer precisely that point before I conclude, but if the right hon. Gentleman will forgive me I will do so in my own particular way. The second test to apply is fairly straightforward: are we heading into economic disaster? At this stage, we are unable to say. We do not know what the trade terms will be and we do not know how they will affect businesses and workforces. All of that is to be negotiated. If, at the end of the process, all those questions have been answered to my satisfaction and that of my constituents, I could vote, provided I am given the opportunity, to leave the European Union. At this stage, however, there is such a lack of clarity about where we stand and where we will get to that I am not prepared to give that commitment. I cannot say to my constituents that everything they voted for will not happen, on top of which it will be economically disastrous for us I say to the Government: get on with the negotiations, but we want the opportunity to say this is not right for our constituents. I will vote for the amendments tabled by the right hon. and learned Member for Beaconsfield and my right hon. Friend the Member for Normanton, Pontefract and Castleford to make sure that we have exactly that opportunity.
I have often taken part in such debates as these and felt rather in the minority in opposing a new European treaty, and I wonder whether I am still in a minority in the House today, as it probably has more remainers than leavers in it, which rather colours the judgment of those taking part in the debate.
Oh move on, for God’s sake!
I just put that forward as a problem. I believe as passionately in my case as my right hon. Friend does in hers. I sympathise and understand, but we have to accept that the country voted to leave. The one thing we know about how people voted—whether it was for this deal or that deal, whether they believed or disbelieved this or that piece of propaganda—is that they voted to leave the EU. That is the one thing it said on the ballot paper. I cannot understand how anyone can come to the House and say, “Well, there might be circumstances in which I will not respect that decision”, as the right hon. Member for Knowsley (Mr Howarth) just did. That is what it amounts to.
Sir Winston Churchill said that the role of an MP was to put country first, constituency second and party third. Does the hon. Gentleman accept that, if the Government come back with a bad deal, allowing it to go forward would put none of those three first?
That brings me to my next point. This debate is rerunning many of the arguments during the referendum campaign. The remain case was premised on the idea that it is a horrible, cruel world out there, that we cannot survive outside the EU, that it will be completely disastrous and that unless the EU give us permission and lots of help and support and agree to a whole lot of stuff we would like, we will be on our own in the cold. You know what? It is not true. Most countries are not in the EU and they are fine. This debate sometimes loses sight of that I wish to speak in favour of clause 1 standing part of the Bill. I agree so much with my right hon. Friend the Member for Wokingham (John Redwood). This is the most important Bill since we joined—more important, in fact, because after 45 years of membership it is so much more significant than it was. The principle of democracy is that Parliament legislates and Ministers obey and implement the law. The problem with the EU is that it turned our Ministers into legislators. They go to Brussels, sit in council, legislate and then bring back fait accompli legislation that is then imposed on this House. The 1972 Act is the greatest Henry VIII clause that has ever existed, and there is something a bit inconsistent —I understand why they are saying it—in complaining about Parliament not being treated properly, given that the whole principle of our membership of the EU requires the removal of the House’s right to make the laws of this country.
I note that the hon. Gentleman just said that it was wholly inappropriate for Ministers to go to Brussels and bring back a fait accompli. In relation to the EU negotiations, would it not be wholly inappropriate, therefore, for Ministers to go to Brussels, bring back a fait accompli and not give Parliament a proper opportunity to say, “You know what? You’ve got this wrong. You’ve got to renegotiate.”?
I completely agree with the hon. Gentleman. The House should have the right to accept or reject the deal, and it will—it will have the right to reject or accept the withdrawal agreement and implementation Bill; but that will not change the decision to leave the EU. That decision has been taken I turn to the date of our exit. The referendum said leave. We were all told that we had to use article 50. Article 50 says on the tin that it takes two years maximum. The date is already fixed. There is no choice about the date. The date has to be in the Bill, otherwise we will weaken our negotiating position.
I will make my point and then give way The point is that we cannot go into the negotiations saying, “We have signed up to article 50, but we do not accept that we might have to leave after two years. We might come to you begging for a bit more time.” That will not put us in a very strong negotiating position.
I should preface my question to my hon. Friend by saying that, in my view, there is no evidence at the moment that public opinion on this issue has shifted at all since the referendum. But let us just suppose, as a hypothesis, that by the end of next year it becomes clear from opinion polls that 90% of the population believe that a mistake was made in the triggering of article 50. Does my hon. Friend seriously believe that we as a House should entirely ignore that evidence, if it were presented to us repeatedly?
My right hon. and learned Friend is a very able barrister, and he presents his case extremely well, but we really are into hypotheticals now. [Interruption.] It was my right hon. and learned Friend who used the word “hypothesis” The fact is that article 50 was passed by an Act of Parliament, the European Union (Notification of Withdrawal) Act 2017, by 498 votes to 114 on Second Reading of the Bill that became that Act. All that these three amendments do is align this Bill with what the House voted for so overwhelmingly.
Will my hon. Friend give way?
I will, but I have been told to take very little time.
I am very interested in my hon. Friend’s point about the fact that the date should have been in the Bill. It was an important point, so will he tell us why he did not table an amendment to insert the date?
Would I be telling tales out of school if I said that I had thought about it, and discussed it? In fact, there was plenty of friendly discussion about it, but in the end the Government decided the matter for themselves, and I support the Government. I think that, given that we are in a slight minority in this Parliament and we have to deliver a very difficult Brexit and take part in difficult negotiations, it is incumbent on all Conservative Members to support the Government whenever we can.
I completely agree with a vast amount of what my hon. Friend has said. Article 50 sets the date, but it also sets the process, and the last part of the process is a vote in the European Parliament. As I recall from my time in the European Parliament, it often asks for a little bit extra at the last minute. My concern about hard-wiring the date is that it makes it more difficult for our Government and the other 27 national Governments to give that little bit of extra time should it be needed. It loses our flexibility rather than giving us more. That is my only concern.
Unfortunately, even the European Parliament cannot change the exit date. It would have to be agreed by all the other member states. To predicate our negotiating position on our ability to persuade the 27 member states—and the Commission and the negotiating team in Brussels—to extend the date would be completely wrong Any Members who intend to vote against this date must be really confident that they can change a date that has already been set by the European Union treaties. The whole point about the deal/no deal scenario is that—as I have already said to the right hon. Member for Knowsley—either we accept the deal, and the House votes on it, or there is no deal. That is the choice that is available to the House. The House cannot veto Brexit—[Interruption.] I wish to conclude my speech Any Members who voted for the European Union (Notification of Withdrawal) Bill are obliged to support the amendment, because that is the date for which they implicitly voted when they voted for the Bill, and for a two-year period. Any Members who voted for article 50 but now do not wish to fix the date are open to the charge that they do not actually want us to leave the European Union—[Interruption.] Let me say this to my right hon. and learned Friend the Member for Beaconsfield. He has suggested that if we do not have a deal we will be jumping into “a void”, and that fixing the date will constrain our negotiations and disenfranchise Parliament. I respect the sincerity of my right hon. and learned Friend’s passion, but he calls the cut-off date barmy when he voted for that date by voting for the article 50 Bill. This amendment rumbles those who have not really accepted that we are leaving the EU.
My hon. Friend knows that I share his fundamental beliefs about the need for us to leave the European Union, but is there not merit in the suggestion of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) that we need not have a fixed date? After all, our own negotiators might wish to have an extension; this is curtailing the flexibility and room for manoeuvre of our own negotiators. My right hon. and learned Friend has proposed an ingenious and commendable solution: that we write into the Bill the date, but we create exceptions for circumstances in which the negotiators might need it. I urge my hon. Friend, and all my hon. Friends who share my view on the EU, to reflect carefully on the suggestion made by my right hon. and learned Friend; it is a commendable one and it requires careful reflection.
I am still seized of the truth that if we beg the EU to extend the time because it has run us up against the timetable—after all, it is the EU that is refusing to negotiate on the substantive issues at the moment, not us—that is the position and responsibility it must face. We should be clear and strong that if the EU does not reach an agreement with us by a certain date, we are leaving without a deal. That would put us in a stronger negotiating position than ever.
I am very pleased to start by saying that, irrespective of what might or might not be in this Bill, I would, of course, not want us to leave the EU. I must say that there have been some rational speeches from the Conservative Benches, in particular those of the right hon. and learned Members for Rushcliffe (Mr Clarke) and for Beaconsfield (Mr Grieve). I also saw a significant and rational nodding of heads on the Government Benches during their speeches; I hope that as this debate develops many more of those rational Conservatives will be willing to speak out. I think that, like me, they believed before the EU referendum that leaving the EU would cause us significant damage and that they continue to do so to this day. As they have seen the Brexit negotiations proceeding, I suspect their view has been reinforced. I hope we will hear many more outspoken speeches from Conservatives The debate has inevitably been peppered from the Government Benches—the fourth row, referred to frequently—with the usual clichés from the usual suspects about the impact of the European Union: comments about EU bureaucrats plundering our fish and the secrecy that applies. The hon. Member for Stone (Sir William Cash) is no longer in his place; I do not know whether he has ever participated in a Cabinet committee meeting, but if he is worried about secrecy, he could, perhaps, do so—he will then see how clear that decision-making process is There have also been many references to the importance of the sovereignty of this Parliament, which is of course important, and unfavourable comparisons have been drawn with the EU, along with a complete disregard of how that body conducts itself through the Council of Ministers and the role of Members of the European Parliament. The only thing that has been missing from the debate has been a reference to the EU stopping children from blowing up balloons. No doubt if the Foreign Secretary had been here, he would have been able to add to that list of clichés about the impact of the EU, and it is a shame that he is not here to reheat that particular canard I make no apologies for seeking to amend the Bill and supporting a large number of amendments tabled by Members on both sides of the House, although I do not have much confidence that the Bill can be knocked into shape.
Will the right hon. Gentleman give way?
I will give way later, perhaps to people who have not had an opportunity to intervene. I want to make a bit more progress I do not know whether the new clause tabled by the right hon. Member for Birkenhead (Frank Field) was politically inspired, but it is clear that the amendment tabled by the Secretary of State, which we have heard a lot about over the past 72 hours, was very much a political initiative.
rose—
I will give way once.
As I think the right hon. Gentleman should, given what he was imputing. The new clause was politically inspired, of course, because I wanted to see a date in the Bill. If he is suggesting that someone else was directing the kind of new clause I should table, he might want to have a word with the Opposition Whips to find out how easy a job that is. [Laughter.]
I thank the right hon. Gentleman for that intervention, but I am perplexed: I was not suggesting that anyone had been pulling his strings. I was simply wondering whether it was his own political inspiration that had led him to table the new clause. However, both the new clause and the Government amendment are damaging and irresponsible. They are also pointless, in that the Government could, of their own volition, choose to change the end date. I have to wonder whether they would not in fact seek to do that if they were close to a deal just days or hours away from the deadline.
Does the right hon. Gentleman not accept that we are coming out of the EU and that this is not a game of hokey-cokey, with one foot in and one foot out?
We do not often play games of hokey-cokey in this Chamber, and I certainly would not want us to do so today We are debating what is without a doubt the most serious issue that the United Kingdom has faced in the past 50 years, but I am afraid that the Government are not conducting themselves terribly efficiently. The Prime Minister’s amendment secured one or two newspaper headlines, but I was pleased that it did not succeed in stemming the Tory resistance. I would like to encourage the use of the word “resistance”. I do not know whether many Members have read Matthew Parris’s article, in which he suggests that we should use the term “resistance” in relation to ourselves when some Conservative Members prefer to describe us as remoaners—or, indeed, traitors.
rose—
On that point, I am happy to give way to the hon. Gentleman.
I would not call the right hon. Gentleman a remoaner, but he is a Liberal Democrat; I am just wondering which bit of the democrat in him does not accept the result of the referendum, that 52% of the country voted to leave and that the Prime Minister made it absolutely clear that we would leave if that is what the people voted for. Let me remind him that 41% of his constituents voted for him, whereas 52% voted to leave the European Union. When is he going to ask for a rerun in his own seat?
I am sure that what I am about to say to the hon. Gentleman will reassure him that I am a democrat. He will be aware of the Liberal Democrats’ view that the only way that the vote on 23 June last year can be undone is by means of a referendum of everyone in the country, some of whom might have changed their minds. Perhaps he would like to explain why the people have the right to express their will on this particular issue only once and never again. We, as democrats, are arguing that there should be another opportunity—
rose—
I am not going to give way, because other Members want to speak.
rose—
I will give way to my hon. Friend.
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.
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.
The right hon. Gentleman completely misrepresents what I said, which was a hypothetical. Does he really believe that the British people are going to change their minds? It may be a pious hope but, if anything, leave would win by a far bigger majority if there was another referendum.
The hon. Gentleman has answered a hypothetical question with another hypothetical, so I think I had better leave it there I will not be supporting new clause 49, as tabled by the right hon. Member for Birkenhead. The difficulty with his new clause and with the Government amendment is that our negotiating position would be made much worse by having a fixed deadline and not leaving scope to allow the article 50 process to be extended if the negotiations were close to a conclusion but not there. That would constrain us unnecessarily As for the Government’s position, their amendments have been comprehensively demolished by others during the debate. My concern is that the Government still seem to be arguing that there being no deal is something that they will happily pursue or are considering as an option notwithstanding the huge level of concern expressed by all sectors—certainly by all the businesses that I have met—about the impact of no deal If Members have not already been, I recommend that they go to the port of Dover to watch the process of trucks arriving at the port and getting on a ferry, the ferry leaving, another ferry arriving from the other direction, trucks getting off and then trucks leaving the port. It is a seamless process that does not stop. The lorries barely slow down as they approach Dover, get on to the ferry and then leave. Anything that gets in the way of that process, even if it means an extra minute’s processing time, will lock the port down. Members who think that no deal is a happy, easy option need to talk to people at the port to hear what the impact would be I am happy to support Plaid Cymru’s amendment 79 about ensuring that the devolved Assemblies have some say in the process, which has been significantly denied so far If we have a vote on clause 1 stand part, I will certainly be ensuring—
Will the right hon. Gentleman give way?
I am happy to give way.
Like the right hon. Gentleman, I am sceptical about clause 1 standing part of the Bill, because it asks Parliament to agree to sweep away the whole body of the 1972 Act without knowing what on earth will replace it. It asks us to embark on that journey without knowing the destination. Conditions should be placed on the repeal of the 1972 Act. For example, we should have a treaty with the European Union before the repeal is allowed to take place.
I thank the hon. Gentleman for that intervention. I think we may have the opportunity to put that to the test shortly In conclusion, the debate has unfortunately again revealed the obsession that Europe holds in the hearts of some Government Members. When it comes to Europe and our membership of the European Union, I am afraid that they have left their rationality at the door of the Chamber. If we do leave the European Union, they will be leading the country down a path that will, in my view and in the views of many Cabinet members, many Conservative Members and many Opposition Members, do long-lasting damage to our country.
My concern is related to the timing issues of the phase 1 exit period and, by implication, of the transition period and, by extension, to how those periods link in to the proposed timing of the phase 2 deal on the future relationship with the EU following Brexit. That is the subject of a number of interconnected amendments The key point on timing is that, rightly or wrongly—probably wrongly—we have dropped our initial insistence that the terms of withdrawal, or what is known as phase 1, should be negotiated at the same time as the terms of our future relationship, which is known as phase 2. As things stand, the EU is saying that we should sort out phase 1—Northern Ireland, citizens’ rights and the amount of money—before we start scoping discussions on phase 2. The Government have said that the scoping of phase 2 should start in December, but the EU has threatened delay if we do not move forward significantly on phase 1 within the next couple of weeks Clearly, from the EU Commission’s perspective, and I believe from the perspective of British and continental business, the timelines are moving from tight to critical in terms of the need for a transitional agreement and a phase 2 outline. I separate the two because, of course, the transitional period is legally derived from and relates to the phase 1 exit date set out in article 50, providing time, for instance, to change over regulators and to allow companies’ systems to be changed over, too. Incidentally, it will also be used as a standstill period during which the Government can conduct their negotiations on phase 2 Having heard the debate so far today, both in Committee and elsewhere, I am still unsure as to why we should fix an exit date that will thereby fix the date of the transition agreement. I can see only downside, with the Government losing control of one of the levers they could use to control the negotiations. Briefings I have just received also indicate that removing the flexibility of having different exit dates for different issues could undermine the ability of the banking and insurance sectors to amend their systems in time, risking financial instability The proposal to fix a date also possibly pushes us into a corner and unnecessarily increases the EU team’s leverage. Indeed, as has been said, when the Ministers came to the Brexit Committee, the flexibility to set multiple exit dates was described to us as a tool for setting different commencement dates for different provisions and for providing for possible transitional arrangements. What has changed in the Government’s approach over the past few weeks? That is something Ministers have to address It is now seemingly the Government’s intention to follow the Bill with further primary legislation to provide for an implementation period and the terms of the withdrawal agreement, along the lines of amendment 7 tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), which he says he will now update. The amendment has received a lot of cross-party support, and we will debate it at a later date. The Government initiative is welcome, but it will not in itself protect us from the dead-end option of fixing the exit date, which seems to pander to those who would welcome a no-deal Brexit My right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) tabled new clause 54, which provides for securing a transition period of at least two years. Although the amendment will be substantially debated later, I think it is conservatively worded. When the Brexit Committee went to Brussels recently, Monsieur Barnier talked of the adequacy of two years for negotiations, as has our Secretary of State for Exiting the European Union. However, nearly everyone else, including the European Parliament representative and the representatives of MEDEF—the French CBI—thought that three years, and possibly up to five years, will be needed Two years from the exit date may be enough time to settle the provisions of phase 1, but most experts are saying that two years is widely over-optimistic for negotiating an FTA. We need to consider what will happen if the Government do not reach certain targets by certain dates. For the Brexiteers, it may simply be that we go into hard Brexit mode. I personally think that would be extremely damaging to British business, but it is of course the default position under article 50. For those of us who want to have a negotiated phase 2 settlement, more Government attention is needed in this area The hon. Member for Feltham and Heston (Seema Malhotra) tabled new clause 69, a thoughtful amendment that asks what should happen if the Government do not secure a withdrawal agreement by 31 October 2018 or if Parliament does not approve the withdrawal agreement by 28 February 2019. Rather than jump off the proverbial no deal, hard Brexit cliff, there is a suggestion of ending the two-year period or agreeing a new transitional period. For that approach to work, we would have to ensure that we do not have a fixed exit date. It would, in effect, involve taking up the offer previously made by the hon. Member for Sheffield Central (Paul Blomfield) and the Government starting to talk to the Opposition. Given where we are, that is going to have to happen one way or another, and we should face up to it now.
It has been a pleasure to listen to this wide-ranging debate, but I do not intend to summarise it, and nor do I have the time to do so. I did, however, want to do something that the voice of my fellow Under-Secretary, my hon. Friend the Member for Wycombe (Mr Baker), would not allow him to do, which is to respond to the amendment standing in the name of the hon. Member for Arfon (Hywel Williams), who is not his place, and which has been supported by a number of Opposition Members My hon. Friend rightly spoke about how the Bill was about continuity, certainty and control, and that matters to every part of the UK. The hon. Member for Arfon and those who signed his amendment know that we are committed to securing a deal that works for the entire UK—for Wales, Scotland, Northern Ireland and all parts of England. There is considerable common ground between the UK Government and the devolved Administrations on what we want to get out of this process, and we expect the outcome to be a significant increase in the decision-making power of each devolved Administration. But we are clear that no part of the UK has a veto over leaving the EU; we voted in a referendum as one United Kingdom and we will leave as one United Kingdom. This Government have already shown their commitment to the Sewel convention—
What the Minister has said is very important, and I am listening carefully. Has he sent a signal this evening that he is prepared, and the Government are prepared, to ignore the requirement of the legislative consent of the Northern Ireland Assembly, the Scottish Parliament and the Welsh Assembly in order to get their way with this Bill? Is that the signal he has sent?
The hon. Lady pre-empts my next point. What I would say before making the point about Wales and Scotland is that of course we all want to see a Northern Ireland Assembly in place and functioning, with power sharing, so that it can give assent to this Bill. The Government have already shown their commitment to the Sewel convention, demonstrated through its inclusion in the Scotland Act 2016 and the Wales Act 2017, and we are seeking legislative consent for this Bill in the usual way.
rose—
I am afraid I cannot give way again at this point. We want to make the positive case for legislative consent and work closely with the devolved Administrations and legislatures to achieve this Crucial to understanding this Bill is the ongoing work on common frameworks, which has been mentioned, determining areas where they will and will not be required, which will reduce the scope and effect of clause 11. We acknowledge that that work on common frameworks will be crucial to the consideration of legislative consent.
So the position of the UK Government is that if three of the four legislatures of the UK oppose this, he will ride roughshod over them. This is not a Union; it is a superstate. We are not in a Union; we are in superstate. The only superstate in Europe is the United Kingdom.
The hon. Gentleman does not serve the interests of his own argument. We acknowledge, as I was just about to say, the position that the Welsh Government and the Scottish Government have taken to date on legislative consent to this Bill, but there has not yet been a vote in the Scottish Parliament or the Welsh Assembly on this and we remain confident that we will reach a position that can attract support. I want to stress that this Bill takes no decision making away from devolved Administrations or legislatures. We will, of course, return to these issues in more detail on days four and five in Committee In the meantime, we are pressing on with our engagement with the Scottish and Welsh Governments. The Secretary of State for Exiting the European Union has been in contact with the Scottish and Welsh Governments on several occasions, and the First Secretary of State has met the Deputy First Minister of Scotland and the First Minister of Wales to progress discussions between Joint Ministerial Committee meetings. In addition, at the recent JMC (EN) on 16 October, the principles that underpin where frameworks will be needed and where they will not be needed were agreed with the Welsh and Scottish Governments. We are now moving into the next phase of this work, with detailed analysis of the policy areas with those Governments. This is a clear sign of progress, but I reiterate the point I made to the hon. Member for North Down (Lady Hermon): we would like to see a Northern Ireland Executive in place, with power sharing back in place, so that they can engage further on the official engagement that has taken place. In tandem, officials met officials met yesterday for technical discussions on the amendments proposed by the Scottish and Welsh Governments. In the past week, I have spoken to no fewer than four committees of devolved legislatures with colleagues from across Government, so I welcome their detailed scrutiny We will continue this engagement, and we hope to make the case for the Bill in every part of the United Kingdom, but amendment 79 would provide scope for individual vetoes on our exit from the European Union. We have already held a referendum that gave us a clear answer on the question of leaving the EU, which was subsequently endorsed by Parliament through the passage of the European Union (Notification of Withdrawal) Act 2017. The amendment goes against the grain of both our constitutional settlement and the referendum result, so I urge the hon. Gentleman to withdraw it.
Would the Minister concede that one man’s veto is another man’s respectful disagreement?
Order. The Minister has resumed his seat.
In this debate, many Members expressed worries about democracy. Although the hon. Member for North East Fife (Stephen Gethins) is totally opposed to the position I set out, his was a stunning speech. If people with such abilities can be returned to this House, I do not think we have to worry too much on that front The right hon. and learned Member for Beaconsfield (Mr Grieve) accused me of simplicity. I hold his abilities in higher esteem than he holds them himself. Sometimes, though, choices are clear. There is a clear choice about how we negotiate with the group we are facing in Europe. Amendments are necessary, but because the Government, without the fingerprints of anybody else, have tabled an amendment stronger than my new clause, I beg to ask leave to withdraw the motion Clause, by leave, withdrawn. Four hours having elapsed since the commencement of proceedings, the proceedings were interrupted (Programme Order, 11 September). The Chair put forthwith the Question necessary for the disposal of the business to be concluded at that time (Standing Order No. 83D) Clause 1 Repeal of the European Communities Act 1972 Amendment proposed: 79, page 1, line 3, at end insert— ‘(2) Regulations under section 19(2) bringing into force subsection (1) may not be made until the Prime Minister is satisfied that resolutions have been passed by the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly signifying consent to the commencement of subsection (1).”—(Hywel Williams.) This amendment would make the repeal of the European Communities Act 1972 on exit day conditional on the Prime Minister gaining consent from the devolved legislatures. Question put, That the amendment be made.
I beg to move, That the clause be read a Second time.
With this it will be convenient to discuss the following: Amendment 357, in clause 6, page 3, line 29, at end insert— “(A1) Retained EU law is to be interpreted in accordance with subsections (A3) to (A7), unless otherwise provided for by regulations under this Act (A2) Subsections (A3) to (A7) do not affect the application of section 7 to retained EU law where, but for the operation of those subsections, the retained EU law would fall within that section (A3) Retained EU law does not allow, prevent, require or otherwise apply to acts or omissions outside the United Kingdom (A4) An EU reference is not to be treated, by reason of the UK having ceased to be a member State, as preventing or restricting the application of retained EU law within the United Kingdom or to persons or things associated with the United Kingdom (A5) Functions conferred on the EU or an EU entity are to be treated as functions of the Secretary of State (A6) Any provision which requires or would, apart from subsection (A5), require a UK body to— (a) consult, notify, co-operate with, or perform any other act in relation to an EU body, or (b) take account of an EU interest, is to be treated as empowering the UK body to do so in such manner and to such extent as it considers appropriate (A7) In subsection (A6)— ‘a UK body’ means the United Kingdom or a public authority in the United Kingdom; ‘an EU body’ means the EU, an EU entity (other than the European Court), a member State or a public authority in a member State; ‘an EU interest’ means an interest of an EU body or any other interest principally arising in or connected with the EU (including that of consistency between the United Kingdom and the EU); ‘requires’ includes reference to a pre-condition to the exercise of any power, right or function.” This amendment provides a scheme for interpretation of EU law and to provide a backstop where necessary transposition has not been effected by regulations made under Clause 7. Amendment 279, page 3, line 32, after “exit day” insert— “as appointed in accordance with subsection (6A)” This paving amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations. Amendment 303, page 3, line 32, after “Court” insert— “except in relation to anything that happened before that day” This amendment would bind UK courts to European Court principles laid down or decisions made after exit day if they related to an act before exit day. Amendment 202, page 3, line 33, after “matter” insert— “(other than a pending matter)”. Amendment 280, page 3, line 33, after “exit day” insert— “as appointed in accordance with subsection (6A)” This paving amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations. Amendment 304, page 3, line 33, at end insert— “except in relation to anything that happened before that day.” This amendment would enable UK courts to refer matters to the European Court on or after exit day if those matters related to an act before exit day. Amendment 137, page 3, line 34, leave out subsection (2) and insert— “(2) When interpreting retained EU law after exit day a court or tribunal shall pay due regard to any relevant decision of the European Court.” Amendment 281, page 3, line 34, after “exit day” insert— “as appointed in accordance with subsection (6A)” Amendment 306, page 3, line 35, leave out from “but” to end of line 36 and insert “a court or tribunal has a duty to take account of anything done by the European Court in relation to— (a) employment entitlement, rights and protections; (b) equality entitlements, rights and protections; (c) health and safety entitlement, rights and protections.” This amendment would help to ensure that Britain continues to have harmonious social standards with the EU. Amendment 358, page 3, line 36, at end insert— “( ) In addressing any question as to the meaning or effect of retained EU law, a court or tribunal must have regard to— (a) any material produced in the preparation of that law, or (b) any action taken or material produced in relation to that law before exit day by an EU entity or the EU, to the same extent as it would have had regard to such material or action immediately before exit day.” The amendment would make clear that non-binding aids to the interpretation of EU law, such as background materials and official guidance produced before exit day, should continue to be taken into account by the courts when interpreting retained EU law to the same extent as at present. Amendment 278, page 4, line 19, at end insert— “(6A) The exit day appointed (in accordance with section 14 and paragraph 13 of Schedule 7) for the purposes of subsections (1) and (2) must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.” This paving amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations. Amendment 203, page 4, line 20, leave out subsection (7) Amendment 282, page 4, line 26, after “exit day” insert— “as appointed in accordance with subsection (6A)” This consequential Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations. Amendment 283, page 4, line 33, after “exit day” insert— “as appointed in accordance with subsection (6A)” This consequential Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations. Amendment 284, page 4, line 44, after “exit day” insert— “as appointed in accordance with subsection (6A)” This consequential Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations. Clause 6 stand part Amendment 384, in clause 14, page 10, line 36, at end insert— “‘pending matter’ means any litigation which has been commenced in any court or tribunal in the United Kingdom and which is not finally determined at exit day” This amendment provides a definition of pending cases for the purposes of Clause 6. Amendment 353, page 10, line 48, at end insert— “‘retained case law’ means— (a) retained domestic case law, and (b) retained EU case law;” Amendment 354, page 11, line 2, at end insert— “‘retained domestic case law’ means any principles laid down by, and any decisions of, a court or tribunal in the United Kingdom, as they have effect immediately before exit day and so far as they— (a) relate to anything to which section 2, 3 or 4 applies, and (b) are not excluded by section 5 or Schedule 1, (as those principles and decisions are modified by or under this Act or by other domestic law from time to time); ‘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— (a) relate to anything to which section 2, 3 or 4 applies, and (b) are not excluded by section 5 or Schedule 1, (as those principles and decisions are modified by or under this Act or by other domestic law from time to time); ‘retained EU law’ means anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4 or subsection (3) or (6) above (as that body of law is added to or otherwise modified by or under this Act or by other domestic law from time to time); ‘retained general principles of EU law’ means the general principles of EU law, as they have effect in EU law immediately before exit day and so far as they— (a) relate to anything to which section 2, 3 or 4 applies, and (b) are not excluded by section 5 or Schedule 1, (as those principles are modified by or under this Act or by other domestic law from time to time).”
If we do not have a transitional period after exit day and find ourselves moving to substantially different arrangements and a new set of alliances with member states of the European Union, we may have great turmoil in our economy, with a significant number of jobs moving to other jurisdictions. Most people in this debate—apart from the fabled hardliners on the fourth row back below the Gangway on the Conservative Benches—now accept that a transition is needed. The Prime Minister made that point in her Florence speech. However, if hon. Members look very closely at the Bill, they will see that there really is not much in it about the transitional arrangements. Exactly how it will take place has very much been left up in the air New clause 14 seeks clarification from the Government about how a transition will be put in place and operate. It simply calls for a report to be made by Ministers one month after the Bill has received Royal Assent to clarify a number of things. Principally, the report would clarify the question how retained EU law will be interpreted during the transitional period, and by extension, how the relationship with the European Court of Justice and many other aspects will operate during that period.
I very much support the new clause, but does the hon. Gentleman share my incredulity at the fact that the Government have not simply said, “Yes, of course we need to inform businesses and regulators about how retained EU law will be reinterpreted during the transition”? It is very odd that they have not recognised that this very basic and self-evident thing needs to be done.
I suspect that that is because the Government are struggling to get such a transition. They have admitted that one is necessary, which is a good step. In her Florence speech, the Prime Minister made that concession. In fact, it is probably the biggest single negotiating input that we have seen from the Government since the triggering of article 50 I have been talking to businesses and I know many hon. Members have done so, and we are hearing that if they do not have some clarity by January or February, they will have no choice but to put in place contingency plans for a no deal and the fabled cliff edge that we would reach at the end of March 2019. This goes beyond the financial services issues, because it applies to a number of sectors of the economy. We need to make sure that we have some certainty. That is why so much is on the shoulders of the Prime Minister in the December European Council meeting, when we are told that we might get some movement from the European Union on this issue.
My hon. Friend is making an excellent point about the transition. A whole series of amendments have been tabled on this issue, and I wholeheartedly support his new clause. Are the businesses he has spoken to not already having to make very difficult and costly hedging decisions because of the uncertainty caused by the Government and, indeed, the siren call from the small number who want us to go off the cliff into a catastrophic, no deal Brexit?
There is a sort of sadism or masochism— I do not know which it is—on the part of a small number of hon. Members who relish the idea of a no deal scenario, saying, “The WTO has a fantastic set of rules —let’s just dive straight in.” However, I think there is consensus in the House that a transition is necessary, and if that is the case, we must work together across the parties to make sure we put in place the right legislative framework to deliver and facilitate such a transition The Prime Minister pointed out after her Florence speech that the European Court of Justice will “still govern the rules we are part of” during a transition. The Prime Minister is right. The European Union has said in terms that the entirety of the acquis communautaire needs to apply during a transitional period and that it is the equivalent of the single market, the customs union and the four pillars—the freedoms—within them. That has to include the European Court of Justice, if we are going to sign up to that set of arrangements. That is also the Labour Front Benchers’ policy for the transitional period. Indeed, they will want to speak to their own amendments detailing how they envisage the transition needs to take place. It is worth reminding ourselves why it is that, during a transition, we will still need a resolution mechanism through the European Court of Justice. The right hon. and learned Member for Rushcliffe (Mr Clarke) mentioned in an earlier intervention that the UK took the European Central Bank to the European Court when there was a question whether the euro clearing arrangements might not be feasible in the City of London. From time to time, therefore, we have benefited from that dispute resolution arrangement What would happen if other circumstances arose during a transition? For instance, if UK citizens living abroad wanted to get their pension payments but there was an obstacle to them doing so, they would need to be able to seek redress, and that could be provided by the European Court. If a breach of competition rules adversely affected a UK firm, it might seek to get redress through the European Court of Justice. If the European Union started passing rules in conflict with the transition agreement, we would want the Court to resolve the situation in our favour. If UK firms were denied market access in the European Union, we would need resolution arrangements during a transition period. The application of the European Court of Justice is integral to such issues—the Prime Minister was right to accept that—but the Bill presents a problem.
The hon. Gentleman has listed a series of issues, each of which is a legal issue. How does he suppose we could delegate to the Government a prerogative power to decide how the courts could decide those issues?
My proposed new clause seeks to elicit from the Government information on how they are going to deal with the issue. The Prime Minister has said that she accepts that the European Court of Justice would need to continue to have jurisdiction during a transition. However, there are problems in the Bill I invite hon. Members to turn to page 3 and read clause 5(1), which 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.” Therefore, under the Bill as framed, the ECJ arrangements will not apply beyond exit day. Further down on page 3, clause 6(1) and (2) similarly state that no regard will be made to the European Court after exit day.
The hon. Gentleman is absolutely right. The way in which this Bill is framed takes no account whatsoever of the possibility of a transitional arrangement.
It’s not meant to!
My hon. Friend says that it is not meant to, but I cannot criticise the hon. Member for Nottingham East (Mr Leslie) for raising the issue, because we are hearing more and more about transitional arrangements. Of course, that highlights—does it not?—the fact that this Bill can do only part of the task that we have to do altogether. I think that it is right that we seek in vain to amend this Bill, because we will not able to make it do something that deals with transitional arrangements that we currently know nothing about.
The right hon. and learned Gentleman is entirely correct. The whole purpose of Committee scrutiny is to try to get some sense out of what is a very complicated set of arrangements. In some ways, the Bill was drafted in an era pre-dating the Florence speech, when we were moving from state A to state B—in other words, from pre-exit day to post-exit day. Of course, the Prime Minister has now accepted that there will be a transition, so a new interim period has been floated, but no legal architecture has been proposed for it at this stage The Secretary of State for Exiting the European Union yesterday floated the idea of an Act of Parliament that would also include details about implementation at some indeterminate point, potentially after exit day. New clause 14 seeks clarity from Ministers. They must set out in more detail precisely what would happen to the legal framework in that transitional period.
Does my hon. Friend share my astonishment at the answer to my question this afternoon about what the legal basis for the transition period would be? Does he agree that the Government have succeeded in minimising their room for negotiation by fixing the exit day and maximising legal uncertainty and that the one thing that business has been calling for is legal certainty before Christmas?
As my hon. Friend says, I am starting to wonder whether the Government will reverse ferret a little bit on the fixed date. We will wait and see—I think the vote will come up on day eight. It is obvious that it has not been as thought through as it should have been.
My hon. Friend is making some excellent points. Various businesses in my constituency and unions have pointed out the need for, and the benefits of, a transitional period. Does he, like me, feel that because of the Government’s actions we are sleepwalking towards a no-deal scenario that would have a catastrophic impact on our economy?
I fear that that scenario is beginning to loom on the horizon. We know the Prime Minister does not want that because she says she wants the transitional arrangement, but more flesh has to be put on the bones in terms of how the UK envisages the transition and at the European Council in December. If a transition deal is not signalled, with more flesh put on the bone in December, a lot of firms will say, not unreasonably, “We have to plan for a scenario in which we are not legally able to sell our services to the 500 million customers across the other 27 countries.” We hear that American corporations that currently have their base in London are looking at all sorts of convoluted branch-back arrangements, so that they can subsidiarise back into the UK. This is getting terribly complicated and very expensive. Ultimately, all these issues will hit consumers and workers in the UK. It will have a very practical effect on the lives of many of our constituents.
I share the hon. Gentleman’s and the Prime Minister’s hope that there will be a sensible implementation period, although, as the Secretary of State has said, it is a diminishing asset if it is left later and later before we know are going to get it. I welcome the inquiring way in which the hon. Gentleman is proposing his new clause, but I think he has made his own point. If there are to be any enforceable legal obligations arising from a withdrawal agreement, or any agreement, after we have left, they should be done through the Act of Parliament that was announced yesterday and not incorporated into this Bill. That is why it is safe to put the exit date in the Bill, because the exit date ends the jurisdiction of the European Court of Justice.
Let us imagine the circumstances where exit day falls at that fateful 11 pm on 29 March 2019 and there is no legislative architecture in place for the transitional period from 11.1 pm and thereafter. At present, there is no guarantee from the Government—I will give way to them if they will guarantee it—that that legislation will be put in place, published and consulted on and that businesses will know what the transitional legal framework will be from 11.1 pm on 29 March 2019 onwards. The Government have said that we might not get the latest offer of an Act of Parliament until not only after a withdrawal treaty has been signed and sealed by Ministers, but after exit day. There is, therefore, a hiatus. What is the legal architecture that fills the gap in that transition? That is the question I am asking in new clause 14.
Just to reinforce the hon. Gentleman’s question: the Bill seems to say that after exit day all European law and legal obligations drop and the jurisdiction of the ECJ goes. If we have the transition period proposed in the Florence speech, the subsequent Bill will presumably have to amend this Bill, change the Government’s position and produce new provisions that qualify it. Given that the Florence speech seems to be the only policy we can cling to—it is agreed to by both Front-Bench teams, in theory—would it not be logical just to put the substance of that speech into this Bill and adjust it so that it complies with it?
The right hon. and learned Gentleman and I have shared this inspiration in the form of an amendment that will also come up on day eight of Committee. Of course, the Labour Front-Bench team will shortly be talking to their own amendment 278, which seeks to deal with this problem by deferring exit day until after the transition has been completed. The idea essentially is to keep the existing legal framework in place, not just for the period up until exit day but for the transition period. That, of course, is one way to solve the problem The Bill, though, cannot adequately deal with the transition, and not just because of the contradictions in clauses 5 and 6. Even if one stands on one leg and squints a little bit at the order-making powers in clauses 7 or 9, none seems capable of dealing with the implementation of a transition period. It is clear, then, that we need answers from Ministers. They have said that they will bring forward a Bill, but they have to ensure certainty for business during the transition period. It could be a two-year-plus period. I do not think that two years is long enough, but if it is to be two years, that is still a long time for businesses to operate without a framework of legal certainty. New clause 14 simply says that Ministers must give details within one month of Royal Assent as to how the ECJ arrangement will apply during the transition.
Is it not clear, from what has been said in Europe and by business, that they want the transition deal to be the same as what we have now, with all the same obligations, so that they do not have to go through two sets of changes?
That is absolutely the preference of most sensible observers. We need a transition, of course, because the trade deal arrangements cannot possibly be made adequately by the time of exit day, unless the Secretary of State for International Trade pulls a rabbit out of the hat—perhaps he has been known to do that in the past, but I doubt it will happen this time. The transition period is therefore vital if the UK is to salvage and stitch together a trade arrangement We must not forget, moreover, that the 57 existing free trade arrangements with non-EU countries from which the UK benefits by virtue of our EU membership will have to be grandfathered—copied and pasted into UK arrangements. The right hon. and learned Member for Beaconsfield (Mr Grieve) talked about the 759 different international treaties. We do not know quite how those will apply. We have to think about the legal framework not just after but during the transition. We have a massively complex set of legal steps to take, yet we have no clarity from Ministers, apart from this concession yesterday that there might be a Bill at some point, possibly after exit day, perhaps with a vacuum—
indicated dissent.
I will give way to the Minister, if he is saying no. If I understand him correctly, he is going to introduce and enact the promised Bill well ahead of exit day. I will give way to him if that is the case.
indicated dissent.
Well, the Minister proves my point. We need a report from the Government very soon after Royal Assent to answer this question. New clause 14 is a very gentle, soft amendment that I hope will nudge the Government into answering that question.
A transition implies moving from one place to another. If we write into statute the date on which we are to leave, industry and the economy will wake up the next day and find that we are out of the jurisdiction of the European Court of Justice, out of the customs union and out of the single market. That is not a transition but an overnight crash. The Government say that we will then make a further transition and then pick up the pieces, like the Road Runner hitting the ground and having to pick himself up afterwards. This is not an orderly transition; it is, by any definition, a car crash. Does my hon. Friend not agree?
Yes. There are massive risks, and if we do not have an orderly transition, there will be big consequences. However, although we have identified 29 March 2019 as a key date, there is another critical date, which will fall in the first quarter of the next calendar year. Many businesses are saying that they must have certainty about what the shape of the transition will be by that time The clock is ticking much more swiftly than Ministers may have appreciated. We need to know that they are rolling up their sleeves ahead of the European Council, which begins on 14 December. We may just complete the Committee stage during that week, but it is vital for businesses to have certainty, and it is also vital for Ministers to explain how aspects of the transition will take place. In a way, it would be disloyal to the Prime Minister for them not to do so.
My hon. Friend has mentioned the concern felt by businesses. That concern is widespread, ranging from the Confederation of British Industry to the Federation of Small Businesses. It is also felt by the workers and their representatives, including the TUC and many individual trade unions. Why on earth are the Government being so stubborn?
We can only speculate. There was even a suggestion at one point that Ministers had not yet broached the topic of transition with their counterparts in the EU and Michel Barnier. Thankfully the Prime Minister raised it in her Florence speech, and I hope that her Ministers are now getting it under way, but we need more certainty and clarity. There is a serious period—two years plus—during which legal arrangements must be put in place. It is not unreasonable for the House to ask Ministers to clarify the position at the earliest opportunity, and certainly by the time the Bill receives Royal Assent.
I want to talk about amendments 303 and 304, which stand in my name, and to return to a matter that I raised on Second Reading. I hasten to add that the amendments relate to a specific constituency case. However, I do not want to air the details; I want to stick to the principles, because the case in itself raises a problem that I would like the Government to have a look at As we know, the Bill transfers all EU law into UK law. That will become effective on the day of exit, ensuring that all the rights enjoyed by British citizens today will be available to them after Brexit. Owing to some practical difficulties, however, some rights cannot be transferred easily because they are entirely reliant on the European Court. The right of the individual to sue a member state for damages when the law has been incorrectly applied and has caused them harm is ultimately reliant on the rulings of the European Court, and on a legal precedent that I think many of the lawyers who surround me in the Chamber know as Francovich Although the UK courts will deal with such cases, they must refer questions about the interpretation or application of EU law or EU legal principles to the European Court, particularly when the interpretation is unclear and applies to every member state. Such a reference to the Court will occur, for example, when the interpretation of rules pertaining to the application of VAT across the EU is required. After Brexit the UK courts will determine all law, and there will be no references to the European Court I want to give the Government an opportunity to ensure that the principle underlying Francovich—the protection of individuals against malfeasance by the state—will develop within the British legal system. In the meantime, however, there is a transitional issue arising from changes in the law that impacts individuals who have already commenced such legal action prior to Brexit, or who might wish to commence such an action after Brexit in relation to an issue that occurred in the period prior to Brexit.
My right hon. Friend raises a very important issue, and it is not just a transitional issue; it is a rule of law issue, and is about legal certainty. My right hon. Friend is absolutely to raise it, and she may agree with me that the Government are going to have to deal with this, because ultimately it is a fundamental principle of law that people should be able to have that certainty when they commence actions.
My right hon. and learned Friend, who is also my constituency neighbour in Buckinghamshire, knows that I have been preoccupied with this for some time. Of course, there is also that principle of UK law called legitimate expectation, which is based on the principles of natural justice and fairness, and seeks to prevent authorities from abusing power, and I think that that is most important Essentially, this principle ensures that the rules cannot be changed halfway through the game if an individual had a reasonable expectation that they would continue. Changes to UK law can only happen prospectively—in other words, they can only apply from a point in the future onwards—and cannot be applied to the past. This means that anyone lodging court proceedings can do so knowing that the rules that applied at the time they lodged those proceedings will apply to their case. If that was not so, the law could be retrospectively changed in favour of the state.
My right hon. Friend is making a most powerful case, and I absolutely agree with her about the need to deal with the Francovich issues. She serves as a member of the Parliamentary Assembly of the Council of Europe, as I did in the past; does she agree that to leave people without a remedy in these cases, and to breach that important rule of law of legitimate expectation, would hardly be consistent with our people being given their full entitlement under our commitments as part of the Council of Europe?
My hon. Friend served with great distinction on the Council of Europe and I am thrilled to have been put back on the Council of Europe today, along with several colleagues across the House. I happen to think that this is extremely important, as is our membership of the Council of Europe, and my hon. Friend is right that that situation would be looked at with some suspicion by the other 46 members of the Council of Europe. For that reason, it is important that if we change the law through this Bill, changes that result from the Bill only apply from a point in the future, so that individuals can rely on the law as it stood up to the point when the law changed.
I am sympathetic to the arguments the right hon. Lady is putting forward. Following on from the intervention of the hon. Member for Bromley and Chislehurst (Robert Neill), does the right hon. Lady agree that if people’s legitimate expectations and right to an effective remedy are withdrawn as a result of Government action, those individuals might have cause for action against the Government under the European convention on human rights?
The hon. and learned Lady makes a valid point. I am trying to give the Government an opportunity to examine this, as I think it is very serious. I also think that no British Government would want the sort of unfairness thrown up by the anomaly that has arisen from the way the Bill is drafted In fact, the repeal Bill already states in paragraph 27(3) of schedule 8 that actions begun prior to Brexit, including Francovich, can continue and can rely on EU legal principles. However, I think there is an error in the Bill, in that it does not allow anyone who has commenced an action prior to the day of exit the right of a reference to the European Court, which they could have reasonably expected when lodging their claim in the court prior to Brexit.
That must be wrong as well. In the past, when we have had references to the Privy Council, for example, and a country has terminated those references, the references have continued after the date of termination until all the cases going through the system are completed. It must follow that references to the ECJ—or CJEU, perhaps, to give it its full title—must be able to continue after the date of exit.
My right hon. and learned Friend makes the same point that I am trying to make. Likewise, the Bill does not allow anyone who has suffered harm because of an act of the state in the period prior to the day of exit the right to lodge a claim under the rules as they stood at the time they were harmed.
This is incredibly important for my constituents who could face issues relating to HS2, because a right of claim could arise between now and exit day, whenever that is set to be, and it is vital that their rights should not be changed during that period.
My hon. Friend is leading me down a path that I do not wish to go down. I was very much hoping that I could make my contribution today without mentioning HS2, but the trouble is that if I do not mention it, someone else will. In fact, I agree with her entirely. To deny people those rights would be an abuse A retrospective removal of rights breaches the principle of legitimate expectation, because individuals have a reasonable expectation that their grievances should be heard under the rules as they stood at the time they were affected. For this reason, I am proposing these minor amendments to the Bill. I do not believe that they would undermine the overall effect of the Bill; rather, they would give legal certainty to those who were caught in the transitionary period. Anyone who has a claim originating in the period prior to Brexit should be able to have their claim heard under the rules as they stood prior to Brexit, including a right to a reference to the European Court. That is only fair and just. The British people voted for Brexit to improve their rights and the rights of their fellow citizens. They did not vote to cause legal confusion or harm, or to frustrate the rights of those relying on the courts during the transitionary phase.
Will the right hon. Lady give way?
I would like to finish now. As the Bill already states that cases occurring during the transitionary period can continue, my amendments would do nothing other than ensure that that happens fairly. I really hope that the Government will respond positively to these amendments, and remember that justice delayed is justice denied.
It is a pleasure to follow the right hon. Member for Chesham and Amersham (Mrs Gillan), who has made some thoughtful and sensible points on her amendments, which we would support. I rise to speak to amendment 278, and to the consequential amendments 279 to 284, which would allow for transitional arrangements within the existing structure, rules and regulations. I will also speak to our amendment 306, but I will return to those separate issues later Amendment 278 follows on from our earlier debate on clause 1. It brings into even sharper focus the issue of the Court of Justice of the European Union’s jurisdiction during a transitional period. As I said in the previous debate, and as my hon. Friend the Member for Nottingham East (Mr Leslie) said earlier in this one, there can be no transitional period on current terms, as the Prime Minister wishes, without that jurisdiction. The Florence speech has been much quoted already, and I am sure that that will continue. Let me refer briefly to it one more time. The Prime Minister obviously made the speech after the Bill had been published, but perhaps its early drafting did not have the opportunity to accommodate the emphasis that she has placed on the “two important steps, which have added a new impetus” to the process She said of the second of those steps: “I proposed a time-limited implementation period based on current terms, which is in the interest of both the UK and the EU.” She was accepting the case made by business and trade unions for an effective transitional period and, crucially, again making the point that this should be on current terms As I said in the earlier debate, we were pleased that the Prime Minister had caught up with Labour on that position. However, seven weeks on from the Florence speech, the Government have failed to reflect the ambition that the Prime Minister had at that time in any of the amendments to the Bill. They came up with the bizarre amendments that we debated in relation to clause 1, but they failed to address that ambition, so we have helpfully stepped in to fill that gap with amendments 278 to 284. The amendments would mean that, in relation to the jurisdiction of the Court of Justice, exit day should come at the end of the transitional period. The reason is simple: without acceptance of the continuing role of the Court of Justice during the transition, the idea that the implementation period, based on current terms, could happen in the way that the Prime Minister described is frankly delusional.
I get the feeling that the cart is coming before the horse here. No transitional implementation has yet been agreed. It has to be part of a deal, and it would be a mistake for the House to start putting things into the Bill in the expectation of certain things that may or may not happen. That is why my right hon. Friend the Secretary of State for Exiting the European Union announced a separate Bill to implement any agreement, which is when such things will be dealt with. This Bill is much simpler than the Opposition would like it to be.
There are some strands of fair comment in that intervention. We have tabled the amendments precisely because, in relation to our previous debate, we do not want the Government closing options down. If the jurisdiction of the Court of Justice is not clear during a transitional period, options would be closed down.
Will the hon. Gentleman give way?
No, I will not. I gave way many times during the previous debate, and I am conscious that many more amendments relate to this clause.
Will the hon. Gentleman give way on his point about the Court of Justice?
I have said no. I want to give others the opportunity to speak. I took every single intervention in the previous debate—except perhaps from one of my hon. Friends towards the end of my speech—so I want to make some progress The Government have a choice to make today—[Interruption.] I wish hon. Members would stop chuntering. The Government have a choice to make, and they have to make it in relation to our amendment 278.
You’re scared to have to answer.
Oh for goodness’ sake. The hon. Gentleman can do better than that, even from a sedentary position.
Just take my right hon. Friend’s intervention.
No, having taken every single intervention in the previous debate, most of which came from Government Members, I have explained why, in the interests of other Members, I will not take interventions on this occasion. [Interruption.] The hon. Gentleman can chunter on As I was saying, the Government have a choice to make today—a choice about amendment 278. Are they serious about pursuing a transitional period and ensuring that the economy does not fall off a cliff in March 2019 when we leave the EU, or does their ideological red line on the Court of Justice take greater priority than the jobs and livelihoods of people in this country Other issues relating to clause 6 also need addressing, and amendment 306 would provide for UK courts to take account of Court of Justice decisions on entitlements, rights and protections on employment, equality and health and safety. The intention of this amendment is to help to ensure that we maintain and keep up with social standards within the EU and do not simply hold workers’ rights and equality in stasis as the EU27 moves forward. Indeed, the EU has made it clear that it will want a level playing field in all those areas if we are to strike an effective trade deal. We are regularly told that the Government do not want to erode rights and protections, but we have a Prime Minister who has repeatedly criticised the social chapter and a Foreign Secretary who has decried the “back-breaking” weight of EU employment regulation, so we need to ensure that we secure clear guarantees in the Bill Amendment 306 also addresses the concerns of the former President of the UK Supreme Court, Lord Neuberger. On 8 August, he raised concerns about clause 6(2) and the position in which it will leave the judiciary on the interpretation of EU retained law. Clause 6(2) states: “A court or tribunal need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so.” On which Lord Neuberger said that if the Government “doesn’t express clearly what the judges should do about decisions of the ECJ after Brexit, or indeed any other topic after Brexit, then the judges will simply have to do their best. But to blame the judges for making the law when parliament has failed to do so would be unfair.” Amendment 306 would address those concerns by removing the vague reference to “if it considers it appropriate to do so” and by requiring UK courts simply to take account of CJEU decisions in relation to employment, equality and health and safety rights. Lord Neuberger was right to flag that deficiency in the Bill, which we need to resolve.
Is not part of the problem that this is an area of law that has quite a political—with a small “p” —aspect? In reality, this law has been entrenched when it comes from the EU, and it represents a number of areas that have been treated by some as fundamental rights The difficulty for the judiciary is that they will be asked to continue interpreting this law—this is the nub of it—without real political guidance as to what emphasis they should attribute to it in future in light of the emphasis it has been given in the past. It is not just any old law but something rather more complex and, for that reason, it is more sensitive to the judiciary’s interpretation.
The right hon. and learned Gentleman is right, and that is what we seek to address with amendment 306 I will briefly address some of the other amendments in the group. We support new clause 14, in the name of my hon. Friend the Member for Nottingham East (Mr Leslie), as it sensibly calls for a report to be laid before Parliament on the interpretation of EU law during a transitional period We also support amendment 137, in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry) and others, as it seeks to have UK courts pay due regard to any relevant decision of the ECJ when interpreting the new category of retained EU law Amendments 202 and 384, in the name of the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), would allow matters pending on exit day to be referred to the ECJ, which is clearly common sense, and we are pleased to support the amendments. We also support amendments 203, 353 and 354, in the right hon. Gentleman’s name, on the definitions of EU retained law. Amendment 357, tabled by the hon. Member for Bromley and Chislehurst (Robert Neill), raises important issues, and I look forward to the Minister’s clarification. We support amendment 358, which would help with the interpretation of EU retained law I end on the same note on which I began by urging the Government to accept amendment 278 and its consequential amendments and, in doing so, to put aside their obsession with the ECJ so that we can secure the effective transitional deal with the EU that they, we, business and trade unions want to achieve.
It is a great privilege and pleasure to speak on behalf of the Government on this essential Bill, and particularly on clause 6 and the various amendments proposed to it. The Bill is complex, but at root it boils down to achieving two basic but fundamental objectives, which it is worth bearing in mind as we consider the clause and amendments The first is that we are delivering on the referendum by taking back control over our laws, which is a major opportunity; that was the No. 1 reason why people voted to leave the EU in the referendum. The second thing that the Bill does is make sure there is legal certainty, with a smooth transition for citizens and businesses, mitigating one of the key risks of Brexit, which I believe is felt by people whether they voted leave or remain.
It is essential that the Supreme Court has certainty. The first part of clause 6(2) is admirably clear: “A court or tribunal need not have regard to anything done on or after exit day by the European Court” Why then have the Government included the following phrase at the end of the provision: “but may do so if it considers it appropriate to do so” I think Lord Neuberger has a point, and I give the Minister an opportunity to make the Government’s position clear.
I thank my hon. Friend for that, and I shall come to that point a little later. The basic point that I respectfully make to the House at the outset is that the various clauses and amendments should be judged according to those basic strategic objectives: taking back control over our laws and making sure that there is a smooth legal transition, which I believe is my hon. Friend’s point Clause 6 serves both objectives. It sets out how, once we have taken back control over EU law, retained EU law should be interpreted on and after exit day. It makes it clear that once the UK leaves the EU, domestic courts will not be able to refer cases to the European Court—an affirmation of the supremacy of our own courts and our own legal order.
My hon. Friend is making a powerful case. The Select Committee that I chair has looked at the implications for equality law. At the moment, individuals can take cases to the Court of Justice of the European Union and gain decisions there that may have a great impact on their lives, but they will not be able to do that in the future. How should the Government look further at how domestic courts might be able to assess the compatibility of UK law with equality law, to make sure that in the future we do not have any problems in the way our law develops in this area?
First, let me thank my right hon. Friend, the Chair of the Women and Equalities Committee, for her intervention and for highlighting this important issue constructively. I have looked carefully at the report of her Committee and had discussions with the Equalities Ministers on the points she has made, so today I can give her the reassurance, and tell the House, that we have commissioned work to be done on an amendment that the Government will table before Report. It will require Ministers to make a statement before the House in the presentation of any Brexit-related primary or secondary legislation on whether and how it is consistent with the Equality Act 2010. I hope that gives her the reassurance she needs that the Government are serious about addressing the legitimate point she has raised The point I was making before my right hon. Friend’s intervention was that once the UK leaves the EU, the domestic courts will not be able to refer cases to the ECJ. Clause 6 also provides that domestic courts and tribunals will not be bound by or required to have regard to ECJ decisions made after Brexit.
rose—
May I just finish this point, because I am at risk of answering the question before my right hon. and learned Friend puts it? As I say, UK courts will instead be able to take those post-exit judgments into account when making their decisions, if they consider it appropriate to do so, as they can, of course, with judgments of courts from other jurisdictions—common law, around the Commonwealth and elsewhere.
A number of different points feature in all this, but there is one point about the legal certainty, which was raised earlier. It is one thing to be able to take a case to the Supreme Court, but under a previously set up regime people could take it as a reference to the ECJ. Have the Government considered the propriety issues on removing that right for a case that is current? There is an issue to address there. The Government may be able to provide precedent and justification for what they are doing, but the issue troubles me. This strikes me as an odd way of going about things simply for the sake of trying to get rid of the ECJ in one fell swoop, which I think will be rather difficult in any case for other reasons.
I hope that I can give my right hon. and learned Friend some reassurance as the Committee makes progress. Some of what he says relates to clause 5 as much as to clause 6, but let me have a go at addressing it today. We may well return to it next week.
The Prime Minister has accepted that in a transitional period, the European Court of Justice would govern the rules of which we are part. Will the Minister explain to the Committee how that is compatible will clauses 5 and 6, which say that the ECJ will have no further sway after exit day, which the Government propose to set as 29 March 2019? Do the Government intend to amend the Bill as it proceeds through Committee to reconcile those two things, or do they propose to do it in the new Bill that the Secretary of State announced yesterday?
I think the Chair of the Select Committee has answered his own question. The point is that we will produce separate primary legislation to deal with the withdrawal agreement and the terms of any transition. We should not be putting the cart before the horse. This Bill is about making sure that we have at our disposal all the means to implement in UK law any deal, and its terms, as and when it is struck.
Will the Minister give way?
If the hon. Gentleman will allow me, I shall make a little progress, because I suspect that—
Will my hon. Friend give way?
I am going to make a little progress, because I think that some of these queries will be addressed in the discussions on the amendments that others have tabled I return to clause 6. For as long as retained EU law remains in force in the UK, it is essential that there is a common understanding of what that law means. That is critical for legal certainty and, in real terms, for the very predictability of law that businesses and individuals rely on every day as they go about their lives. We want to provide the greatest possible certainty—I suspect that, for all the thunder and lightning in this debate, that is a shared objective underpinning it all—and the question is how we achieve that. Clause 6 will ensure that UK courts must continue to interpret retained EU law using the Court of Justice of the European Union’s pre-exit case law and retained general principles of EU law. Any other starting point would be to change the law. That is certainly recognised by the Government.
Will my hon. Friend give way?
I am going to make a little more progress, but I will give way to my right hon. Friend in due course The crucial point reflected in clause 6 is that the intention is not to fossilise past decisions of the ECJ for ever and a day. The clause provides that our Supreme Court—and, indeed, the High Court of Justiciary in Scotland—will be able to depart from pre-exit case law. In doing so, they will of course apply the same tests as they do when departing from their own case law in the ordinary way We have, in my view at least, the finest judiciary in the world. Our courts are fiercely independent of Government, as they have already proved during the Brexit process. The clause will provide them with clarity about how they should interpret retained EU law after exit. As we take back control over our laws, it must be right that the UK Supreme Court, not the European Court of Justice in Luxembourg, has the last word on the laws of the land. It is therefore of paramount importance that the clause stands part of the Bill.
The Minister is being very helpful on one aspect of the Bill, which is how the Government think European law should be interpreted once we have finally exited, but he is sidestepping the key point put to him by the right hon. Member for Leeds Central (Hilary Benn). As it stands, clause 6 does not reflect current Government policy. It is not putting the cart before the horse to ask whether current Government policy, as represented in the Florence speech, should be reflected in the Bill. The fact is that the Government are seeking, expecting or contemplating the real possibility of a transition period during which we will stay in the single market and customs union and be subject to the jurisdiction of the Court. Why is the Bill being presented and urged by the Government in terms that are totally—
They are not!
They are. It may not be agreed by Eurosceptics, but that is Government policy, supported by the official Opposition. Why is it not in the Government Bill?
I will come to that precise point in the context of new clause 14, which has been tabled by the hon. Member for Nottingham East (Mr Leslie). The proposed change refers to the transitional period after the UK exits the EU. I thought that the hon. Gentleman put his points in a perfectly reasonable way.
rose—
Let me finish my point Therefore there will be full transparency and accountability to this House on the issue that the hon. Gentleman feels so strongly about. I urge him to withdraw his new clause, but I will give him one further crack at it.
I am grateful to the Minister for allowing me to probe him on this point. He has suggested that the legal architecture framework for the transitional period will be set out in the Bill that he brings forward for the implementation period. However, it is only possible to agree with that plan if he is guaranteeing that Royal Assent for the implementation Bill will come in ample time before exit day. Clearly, it would be nonsensical to have an implementation piece of legislation that leaves a vacuum between exit day and some later date, when the transition had already started. Can he guarantee that that Bill will be enacted and enshrined in law in good time, well before exit day?
I sense that the hon. Gentleman recognises that he is putting the legislative cart before the diplomatic horse. Of course the implementing legislation relates to the agreement, and we need to have one in place to comply with the terms of any obligations, whether they are under the withdrawal arrangement, the implementation period or the future partnership deal I now turn to amendment 357, tabled by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), Chair of the Justice Committee.
I agree with what my hon. Friend is saying about new clause 14. May I take him back to clause 6(4)(a)? It says that the Supreme Court “is not bound”. Will that enable it to look at the plain words of the treaties, and not at the previous expansive teleological jurisprudence of the ECJ?
I am not quite sure that I understand my right hon. Friend’s forensic point. It is a feature of the common law that UK courts already take into account and consider principles and precedents from other jurisdictions, but they do so with full autonomy as to how they might apply it, where they have discretion under the normal canons of interpretation. We are effectively seeking to apply the same basic principles, through this Bill, to retained EU law and the interpretation of it.
rose—
I am going to make some progress, as I have given way once. I want to turn to some other amendments; otherwise, I will not give them the attention that they rightly deserve. I turn to amendment 357 in the name of the Chair of the Select Committee on Justice.
Can I not tempt my hon. Friend to give way?
My right hon. and learned Friend is very tempting, but not at this moment I understand the point of amendment 357, which is to provide a default mechanism for transposing EU law where regulations have not been made under clause 7. I can equally see that my hon. Friend the Member for Bromley and Chislehurst is seeking to make default provision for any gaps that may exist in the law to avoid creating not just legal uncertainty, but any legal potholes that may strew the road that lies ahead. I hope that he does not mind me saying that he is, perhaps inadvertently, reinforcing the case for clause 7 because his concern appears to be with the risk that it might not being used comprehensively enough. I certainly share his concern to avoid legal cliff edges and legal potholes, for which I think he is trying to cater.
On the issue of potholes, will the Minister give way?
On the issue of potholes, I give way to my hon. Friend.
I mentioned to the Prime Minister during her statement a few days ago the bear trap that I can see coming up during the transitional period if we are not careful because of the manner in which the European Court operates by the purposive rule; I know my hon. Friend will understand. During the transitional period, when we are faced with a court operating under that rule and not by precedent, we could end up with the European Court dictating to us the basis upon which we would be operating during that period. Does my hon. Friend agree?
The Chair of the European Scrutiny Committee eloquently makes his powerful point. We need to avoid bear traps, cliff edges and potholes, and that is what this Bill does. That is a common goal that we all ought to be trying to pursue, on both sides of the House—whether we voted to leave or remain. I am not convinced that the amendment of the Chair of the Justice Committee would achieve that aim. Despite his best intentions and his rather ingenious drafting, I fear that the amendment would, in practice, create considerably more legal uncertainty, not less.
I will not claim credit for all the ingenuity of the drafting, as I hope I shall make apparent in due course, but what if I told my hon. Friend that it is based on the work of the International Regulatory Strategy Group—one of the most distinguished groups of practitioners in this field? Would he think again about totally dismissing the thing, recognise it as a serious point that needs to be addressed here and engage with it?
I absolutely will not dismiss it. I am happy to think twice, thrice and as many times as my hon. Friend wants to talk to me about it. But let me make a couple of points to illustrate the risk of uncertainty that his amendment would cause. Subsection (A3) of amendment 357 begs the question of whether retained EU law restrains acts or omissions that start within the UK but that may have effects outside of it. Equally, subsection (A5) conflates functions conferred on public bodies with those of the Secretary of State. They are not the same thing. I sense that, underpinning this, he is trying to legislate in advance for unknown unknowns. I understand that temptation but if we go down that path, there is a countervailing but very real risk of increasing, rather than mitigating, the legal uncertainty. With respect, I hope that he can be persuaded to withdraw his amendment.
In order that I might reflect on that as the debate goes forward, perhaps my hon. Friend would like to give me an example of the circumstances in which he thinks my amendment might increase the legal uncertainty, rather than assist it. I will obviously listen to that.
Well, I have just given two examples regarding subsections (A3) and (A5) of my hon. Friend’s amendment, but I would be happy to sit down with him and give some illustrative examples of how, in practical terms, I think that this is not actually the avenue or legal cul-de-sac that he wants to go down If my hon. Friend will forgive me, I will now turn to some of the other amendments in order that I give them due consideration in this important debate. In particular, I want to turn to amendment 278 and linked amendments 279 to 284 concerning exit day, which are from the Leader of the Opposition and other hon. Members The Prime Minister made it clear in her Florence speech that “The United Kingdom will cease to be a member of the European Union on 29 March 2019.” It is clear that the UK will leave the EU at the end of the article 50 process—some of the suggestions around the caveat are wildly unrealistic. The Government have tabled an amendment to make sure the drafting of the Bill is crystal clear on this point and to give the country—businesses and citizens alike—additional certainty and a measure of finality on it These amendments would replace that clarity and finality with uncertainty and confusion. They would alter the meaning of the term “exit day” in the Bill, but only for the purposes of the provisions of clause 6. For those purposes, but for those purposes alone, the UK would not leave the EU until the end of the transitional period. I am afraid that that would create damaging legal uncertainty, and the amendments are flawed. They would have the effect that, for the duration of any implementation period that might be agreed—and we hope one will be, sooner rather than later—all the important provisions on the interpretation of retained EU law set out in this clause could not apply; they could take effect, if I have understood correctly, only from the end of that period. Since we have not yet agreed an implementation period with our EU partners, the effect of the amendments would be to create an indefinite and indeterminate transitional period, which rather raises the question of whether the Labour party is really serious about facilitating the process of a smooth Brexit at all.
Rather than seek to confuse the issue, it would be helpful if the Minister clarified whether it is the intention of the Government to accept the jurisdiction of the Court of Justice of the European Union during the transitional period. Yes or no?
The hon. Gentleman is very kind. He had the chance in his speech to make his rapier-like points. I am dealing with his amendment and the very real risk that, with the greatest will in the world, what her Majesty’s Opposition are proposing will add to, rather than mitigate, the uncertainty. When we go away from the fireworks of this debate, it ought to be our common endeavour to minimise that uncertainty. My right hon. Friend the Secretary of State for Exiting the European Union made it clear yesterday that there will be separate primary legislation for the withdrawal agreement and any implementation phase, so these amendments are entirely unnecessary in any event. We have also been clear—I think this addresses the hon. Gentleman’s point—that, in leaving the EU, we will bring an end to the direct jurisdiction of the European Court in the UK Our priority must be getting the right arrangements for Britain’s relationship with the EU for the long term.
Will the Minister give way?
I have given way to hon. Gentleman before. I am going to make some progress That priority means getting a close economic partnership, but out of the single market, out of the customs union and without the direct jurisdiction of the European Court. We want to get to that endgame in a smooth and orderly way, with the minimum of disruption That is why we want early agreement on the implementation period—on that much, we are agreed. That may mean we start off with the European Court still governing some of the rules we are part of for that period, but the Government are also clear that if we can bring forward a new dispute resolution mechanism at an earlier stage, we shall do so. These amendments do not allow for that. They prejudge and pre-empt the outcome of negotiations, and they introduce legislative inflexibility by saying that we must keep rules in domestic law that would bind us to the jurisdiction of the European Court after we leave, for the full duration of any implementation period, without our knowing for a second how long that might be. The Government are making the case for legal certainty. The Labour party is proposing legal limbo. We cannot accept that.
I actually agree—I should make this clear to my hon. Friend—about the issue of transition. I find it difficult to see how we can approach transition in the course of this Bill. However, there is an important underlying issue here, because, ultimately, our future relations with the EU will have a very powerful bearing, whether it is in transition or even after transition, on what we want EU law to do and how we want it to be interpreted, depending on transition, or indeed when we have completely gone, and on the extent to which we wish to be in comity with EU law. This is the elephant in the room, and it will have to be debated at some point as the Bill goes through, because some of it does not have to do with transition but has really to do with an entire future relationship, and it marries with great difficulty with the constant reiteration that the ECJ is somehow going to disappear out of the window.
I am grateful to my right hon. and learned Friend. I absolutely agree that the scope and parameters of the different options will need to be settled, but I think he has implicitly accepted and recognised that that is the subject of diplomacy. As has been said, we cannot put the legislative cart before the diplomatic horse, and I fear that that is what the amendment would do. I now turn to amendment 202, which was tabled by the right hon. Member for Ross, Skye and Lochaber (Ian Blackford) and also relates to amendment 384. In leaving the EU, we will bring about an end to the direct jurisdiction of the European Court of Justice, and this Bill is essential to ensuring the sovereignty of our Parliament as we take back democratic control. We understand, of course, the desire to ensure a smooth and orderly exit and continuity for those who have commenced matters before the courts before exit. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) also made this point That is why we set out in our July position paper, “Ongoing Union judicial and administrative proceedings”, that we believe that UK cases before the ECJ on exit day should not be interrupted but should be able to continue to a binding judgment. We recognise that parties involved in such cases before the ECJ will have already gone through various stages of the process, potentially including making oral and/or written submissions. We do not think that they should have to repeat those stages before the UK courts, as this would not provide certainty but undermine it. The amendment would add further uncertainty rather than mitigate it. Pending matters before the UK courts will be able to reach a final judgment post exit without needing referral to the European Court. The Bill will convert directly applicable EU law into domestic law, so our domestic courts will then apply to those matters. In this way, we will have certainty about how the jurisdiction of the ECJ in the UK will be brought to an end Permitting the European Court to continue ruling on cases that were not before it procedurally on the day of withdrawal, as the amendment proposes, would give rise to considerable uncertainty. It would extend the period under which the European Court would continue to issue judgments in respect of the UK, and it is absolutely impossible to predict how long that may last. Furthermore, after exit day the UK will no longer be a member state of the EU. Under the EU treaties, the European Court itself can rule only on questions referred to it by member state courts, so it follows that without a new and separate international agreement, the references envisaged by the amendment would not, in any event, be possible.
I am sure that the hon. Gentleman is aware of the arrangements that were made in relation to the Privy Council when New Zealand chose to have its own supreme court. In fact, cases from New Zealand are still going to the Privy Council. All we are contemplating with these amendments, which I will address in more detail in a moment, is a similar arrangement.
I take the point that the hon. and learned Lady makes, but that is not the same mechanism. It is not analogous and it is not desirable.
I seek clarification on this point. Is the Minister saying that if a right of action has arisen before Brexit day that would have attracted, at the time that it arose, the full protections and a right to referral to the ECJ, that right will not be taken forward and those rights will, in effect, have been retrospectively changed?
I understand the point that my hon. Friend is making, although I do not accept that characterisation. It is absolutely right that cases that are procedurally before the dock of the court, if I may put it like that—that have been lodged before exit day—will continue to conclusion. However, in relation to facts that may or may not give rise to a cause of action at an indeterminate point in the future, we would end up with a long tail of uncertainty if we went down the path that she suggests. I gently say to her that it will be possible to continue those cases before the UK courts because of the way in which we will retain EU law. There would be more, not less, uncertainty for citizens and businesses alike if we allowed the kind of indeterminate access to the court that she suggests.
Surely, the Minister is ignoring the legitimate expectation that I have talked about. Frankly, if the Government do not look again at the matter, it will constitute an abuse of power, because it will remove from individuals rights that they legitimately expected to carry through to the end of a case.
My right hon. Friend makes an interesting point about legitimate expectations. I think there is an equally legitimate expectation, demand and need to have some finality to the legal and institutional arrangements that give rise to cases before the European Court.
Will the Minister give way again?
Perhaps I can give way to my right hon. Friend when I come on to her amendments I turn to amendment 203, tabled by the right hon. Member for Ross, Skye and Lochaber, and to the related amendments 353 and 354. They would remove clause 6(7) and partially reinsert it into clause 14. Clause 6(7) provides key definitions of terms in the Bill that are crucial for the proper interpretation and full understanding of its content. Subsection (7) aims to alleviate any potential confusion and ensure that there is no vagueness or ambiguity about the different types of retained law mentioned in the Bill. That is vital for those who read, implement and interpret the Bill, because of the different effects of each type of retained law. The placement of the definitions in clause 6 is specifically designed to make the Bill easier to navigate and more user-friendly, by placing the definitions close to where they are used and deployed in the text.
Will the Minister give way?
I am going to make a bit of progress. Wider general definitions are set out in clause 14, and clause 15 provides an index of all the defined terms to make the Bill easier to use as a reference tool. To remove those definitions from clause 6 and only partially to reinsert them into clause 14, as the amendment would do, would undermine the certainty and clarity that we aim to provide Without statutory definitions of the different types of retained law, we would undermine the stability of our domestic legal regime after exit and exacerbate the burdens on the court system. Reinserting the definition of “retained domestic case law” into clause 14 would not alleviate that, because it would give rise to the question why that definition had been included, while others had not. Its placement in the body of clause 14, away from its original use in clause 4, would make the text far less easy to navigate—something that we are keen to avoid I turn to amendment 137, which is a joint SNP and Liberal Democrat amendment, in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry). Clause 6(2) will allow our domestic courts and tribunals to take into account any decisions made by the European Court, an EU entity or the EU itself on or after exit day, if they consider it appropriate to do so. That will ensure that our courts are not bound by the decisions of the European Court, while enabling them to consider its subsequent case law if they believe it is appropriate to do so. It is widespread practice in our domestic courts to carry out a similar exercise with the judgments of courts in other jurisdictions—I am thinking particularly of Commonwealth and common law jurisdictions—so, in principle, there is nothing new or particularly different here The UK has always been an open and outward-looking country, and our legal traditions reflect that. We pay attention to developments in other jurisdictions, including common law jurisdictions, and we embrace the best that the world has to offer, but we do so on our terms and under our control. That is decided by our courts and, ultimately, it is subject to the legislative will and sovereignty of this House. Amendment 137 is therefore unnecessary, as the Bill already provides that post-exit decisions of the European Court can be considered by the domestic courts Amendment 137 would go further, however, in that it would require our courts and tribunals to pay due regard to any relevant decision of the European Court. What does “due regard” mean? It is not defined and, indeed, it is far from clear. It is evidently intended to go further than clause 6, and tacitly urges our courts to heed, follow or shadow the Luxembourg Court, but there is no clarity about what would count as due consideration. The amendment would alter the inherent discretion the UK courts already have to consider, without fetters, the case law in other jurisdictions, and it seeks to apply to the European Court a procedural requirement that is stronger but so vague that it is liable to create more, not less, confusion. I hope that I have tackled, or at least addressed the concerns that the hon. and learned Lady has expressed in her amendment, and I urge her not to press it I will now turn to amendment 303 in the name of my right hon. Friend the Member for Chesham and Amersham. I thank her for tabling this amendment and for explaining it, as she did, in a very constructive spirit. I recognise that she is representing the interests of her constituents with her customary tenacity, but I will take a few moments to set out why we have taken our approach to the issues and my difficulties with her amendment Clause 6 supports the Bill’s core aim of maximising certainty. It is in no one’s interests for there to be a legal cliff edge. The Bill means that the laws and rules we have now will, as far as possible, continue to apply. It seeks to take a snapshot of EU law immediately before exit day. The Government have been clear that in leaving the EU, we will be bringing to an end the direct jurisdiction of the European Court of Justice in the UK. To maximise certainty, any question about the meaning of retained EU law will be determined in UK courts by reference to ECJ case law as it existed before our exit. Using any other starting point would be to change the law, which is not our objective. Our domestic courts and tribunals will no longer be bound by or required to have regard to any decisions of the European Court after that point, but they can do so if they consider it appropriate. These clear rules of interpretation are set out in clause 6.
May I try again to ask my hon. Friend the question on which both my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the former Attorney General, and I have been pressing him? My hon. Friend has just said that courts would be bound by judgments of the European Court about retained EU law. I asked him about clause 6(4)(a), which specifically says that “the Supreme Court is not bound by any retained EU case law” It seems to us that he can have it one way or the other, so which is the governing clause—the one saying that the courts are bound to judge in accordance with the previous judgments of the ECJ, or the one saying that the Supreme Court is not bound by such a rule?
The point is that we take a snapshot of EU law, including case law, at the point of exit, but after that the normal rules of precedent will apply both to the Supreme Court and in Scotland. That will allow a departure from any precedents that apply, which again comes back to the question of how we achieve a smooth and orderly transition from retained EU law while making sure that, when push comes to shove as such case law evolves, the UK Supreme Court will have the last word. That is balance struck in the Bill.
I understand that issue, but there is another one. Let us assume for the moment that there is no transition or relationship with the EU at all. Is the Court supposed to apply EU law as currently applied—purposively—or is it supposed to ignore the underlying purpose by which it has constantly been applied heretofore, and in that case, which rules is it supposed to apply? The judiciary have expressed a real concern about what they are supposed to do, because it is quite unclear what Parliament intends. If we forget about a transition or a future relationship, what are they supposed to do? They have rules for interpreting this law at the moment. Are they supposed to stick to those rules when they no longer have an underlying purpose?
I have to be careful about not pre-judging or prejudicing what the courts decide to do, particularly given that the thrust of the Bill is to make sure that judges have autonomy and discretion. The reality is that the issue is dealt with in the Bill. It is possible for the UK courts, in relation to retained case law, to look at the underlying purpose or intention of any piece of legislation or any principles that have been articulated. Moving forward, they are free, of their own volition, to depart from any precedence in the usual way. That already applies in relation to wider common law jurisdictions. The question I would put back to my right hon. and learned Friend is: why on earth, when we are leaving the EU and given that we are an open and outward-looking country that does filter, take interest in and take account of different principles from different jurisdictions, would we put on an further elevated status the case law of the ECJ?
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I am going to make some progress.
I may be able to assist the Minister with the explanatory notes.
That is kind, but I will make some progress; otherwise I will lose the thread in relation to amendment 303 The amendment is at odds with the clear and certain position set out in the Bill, because it would continue to bind UK courts to some post-exit ECJ decisions and case law where the matters giving rise to the case have occurred before our exit. Those judgments would continue to be binding even after an implementation period. Strictly interpreted, the amendment would go further still. It would apply to anything happening before exit day and so would also include ECJ judgments on cases referred from outside the UK. For example, a preliminary reference made by another EU member state in relation to the interpretation of EU law might also fall within the scope of the amendment, if the facts of the case arose before exit day. The consequences would be far-reaching and risk creating considerable uncertainty and practical difficulties for the administration of justice UK courts and tribunals would continue to be bound by some new ECJ judgments for an indeterminate period. Those binding judgments could continue to be issued long after we have left the EU as cases continue to progress to the European Court from across the EU. Yet those judgments would not have formed part of the snapshot of retained EU case law that, under clause 6(3), will be binding on our courts, so far as is relevant, and subject to the rule in clause 6(4). By contrast, such post-exit judgments would bind our courts in all circumstances, including where the retained version of an EU regulation had since been modified by this Parliament or a devolved Administration. That would create foreseeable and entirely avoidable uncertainty, and it would not be necessary, because individuals whose cause of action predates our exit would, of course, continue to be able to take their case to the domestic courts, even if after exit they cannot reach the European Court. That is the fundamental point in relation to the procedural framework I now turn to amendment 304, tabled by my right hon. Friend the Member for Chesham and Amersham, in relation to retaining ECJ referrals and jurisdiction for anything that happened before exit day. In leaving the EU, we will bring an end to the jurisdiction of the ECJ—we have made that clear. The proposed amendment would frustrate that objective, because our courts could continue to make references to the ECJ in relation to cases where relevant matters have occurred before our withdrawal from the EU. As a result, different rules and processes would apply for those cases, compared with those where the relevant circumstances arose after exit day. That would, I fear, give rise to more not less uncertainty, because it would be impossible to predict for how long UK courts would continue to be subject to binding judgments from Luxembourg. When we exit the EU, we will know exactly how many pending UK cases are registered with the European Court, awaiting a preliminary reference and thus covered by any proposed agreement we have with the EU on the treatment of pending cases. That is important to deliver certainty about how and when the Court’s jurisdiction in the UK will be brought to an end. The amendment would remove that certainty. Like amendment 303, it is not necessary. Individuals will not lose their ability to vindicate their rights in court after exit. They will be able to take such cases to our domestic courts Forgive me, Sir David, but I thought it necessary to address my right hon. Friend’s amendments in detail. Equally, I want to say that I recognise the eloquence and the force with which she champions her constituents. Ministers will take away the underlying issue that she has brought and powerfully moved for consideration. I hope that on that basis she will not feel she needs to press the amendment.
I am following the Minister’s arguments very carefully, with helpful interventions from some of my colleagues. I appreciate that this is a very tricky matter, but it does relate to my constituent. I am therefore grateful that the Minister has undertaken to take the proposal away and look at the principle in relation to this case, because I feel that it would be most unjust not to do so. I have no love for the European Court of Justice and I want the Bill to go through, but not at the cost of justice for my constituent. This case has thrown the matter into stark relief. I am grateful to the Minister for that undertaking and I look forward to talking to him further on the matter.
I thank my right hon. Friend for her constructive approach. We will take that consideration forward after these proceedings I will now rattle through the final amendments, so I have done them all justice and given them due consideration. I will turn next to amendment 306, tabled by the Opposition. Clause 6(2) states that our courts are no longer bound by decisions of the European Court after our departure or required to consider in future cases, although they may do so if they believe it to be appropriate. Clause 6 is a vote of confidence in our judiciary: its independence and its expertise. Using similar exercises currently undertaken with court judgments in other jurisdictions, our courts are best placed to decide to what extent, if any, they pay regard to EU law in any case before them The intention of amendment 306 is to remove that discretion from clause 6 and replace it with a duty that sets fetters on which aspects of EU case law our judges must consider, although only in certain areas. In practice, that would create a presumption that EU decisions should be followed in those areas. That is the clear intention, but it is inappropriate. It would undermine the purpose of clause 6 in both its fundamental objectives. It would frustrate the return of control to this House and the UK Supreme Court and expose the UK to substantial additional and unnecessary legal uncertainty.
Will the Minister give way?
I am going to make a little bit more progress. I have given way to my hon. Friend. The singling out of these areas of law appears somewhat arbitrary, given other fields the amendment might equally apply to. It would lead to a splintered approach to interpretation of the law and a fragmented UK jurisprudence—more uncertainty, not less. In any case, it is totally unnecessary. The UK has a proud history of ensuring the rights and protections of individuals in this country. The UK has high standards of protection domestically in relation to workers’ rights and human rights. We are recognised as a world leader in delivering robust, rigorous health and safety protections. That record and that commitment is not dependent on our membership of the EU; it is dependent on hon. Members in this House and their eternal vigilance. It will continue to be dependent on that after we leave. I hope that the right hon. Member for Islington North (Jeremy Corbyn) and his colleagues in the Labour party will not press amendment 306 Finally, I turn to amendment 358 tabled by the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), which sets out the ability of UK courts to have regard to material used in the preparation of retained EU law. I hope that this is the point at which I give some reassurance to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). Currently, when interpreting EU law domestically, our courts will look at the language used, as well as considering the legislation’s recitals, legal basis and other language versions to inform their interpretation. We do not want to change how this law is interpreted or to create any fresh uncertainty about its meaning, so the Bill provides for the courts to continue that approach. Clause 6 provides that questions on the validity, meaning or effect of retained EU law will be decided in accordance with retained case law and general principles of EU law. This requires taking a purposive approach to interpretation where the meaning of the provision is unclear, considering relevant documents such as the legislation’s treaty legal base, working papers that may have led to the adoption of the measure and the general principles of EU law. I hope that reassures my hon. Friend the Chair of the Select Committee and that he will not press his amendment.
My hon. Friend is making a powerful case on each of the amendments, but I am among those concerned about the confusion around the cut-off line. The general principles he just talked about will shift and change. Is there a point by which, when we reference the principles and those principles have changed post-exit, we do not consider them to be the principles we referenced rather than the principles that existed before and are now not modified? At what point do we have the cut-off point?
My right hon. Friend raises an excellent, if rather esoteric, point, but it is also fundamentally about clause 5 and schedule 1. If he can be patient, we will turn to that next week and, I hope, address all his concerns To sum up, I hope that I have at least sought to address all the underlying concerns in each of the amendments and, given the need to maximise legal certainty, minimise confusion and ensure a smooth transition, that all hon. Members will make sure that clause 6 stands part of the Bill unamended.
I rise to speak to amendment 137, which stands in my name and, I am happy to say, the names of many other hon. Members on these Benches, and to amendments 202 and 203, which stand in the name of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) and other Members on the SNP Benches. I was particularly delighted to hear the Labour party spokesman say that Labour was supporting my amendment 137, which also has the support of the Trades Union Congress, Justice, the Equality and Human Rights Commission and the Fawcett Society I will endeavour to explain in detail why amendment 137 is necessary. In essence, we have tabled it because it is necessary to create legal certainty for individuals and businesses by giving a clear instruction to the courts about how to treat decisions of the European Court of Justice after exit day. I am afraid that the Bill does not give that degree of clarity. The purpose of the amendment is also to protect the judiciary from having to make decisions open to political criticism. We saw some pretty heinous political criticism of judges on the Supreme Court earlier this year, and we have heard judges on that Court express concern about the possibility of not being given proper direction in the Bill. My amendment seeks to address that issue. Finally, and perhaps most importantly for our constituents, the amendment will encourage UK rights protections to keep pace with EU rights after Brexit Amendment 202 is also about giving certainty to individuals and businesses with cases pending before the domestic courts on exit day. I listened carefully to what the right hon. Member for Chesham and Amersham (Mrs Gillan) said about her amendments, with which I have great sympathy. Amendments 202 and 203 have a similar purpose. I also listened with care to what the Minister said, but I regret that he has not given me any comfort that anything in the Bill will give the certainty required for people in the midst of litigation on exit day. That is why we seek to define a “pending matter” in amendment 384 as “any litigation which has been commenced in any court or tribunal in the United Kingdom and which is not finally determined at exit day” We need clarity. It is not just me who says so, or those who support the amendment; these amendments were drafted with some care by the Law Society of Scotland, and I submit that they are necessary to protect litigants’ legitimate expectations, but I will return to that in a moment The underlying theme of all these amendments is the need to create the legal certainty that hon. Members on both sides of the House have referred to today. It is, of course, an absolute requirement of the rule of law that there should be legal certainty. I regret to say, however, that clause 6 does not give that degree of legal certainty. In accordance with our mandate the Scottish National party opposes Brexit, but we understand the need for withdrawal legislation, and we want to reach agreement on it if possible. We also want to ensure that the legislation is properly framed. Clause 6 is not properly framed, because it does not give the certainty that is required.
I am loth to interrupt my hon. and learned Friend, who is making a powerful case for legal certainty, but does she agree that a wide range of industries and other organisations will need legal certainty, certainly around freedom of movement, such as our education sector and food and drink sector? Does she also share my concerns about the reports that have come from the Financial Times this evening that the Secretary of State for Exiting the European Union says that bankers and other professionals have been promised a special post-Brexit travel regime? If we are going to have freedom of movement and the benefits that brings, we should not just be protecting the bankers.
I am grateful to my hon. Friend for bringing this matter to the Floor of the House. I was made aware of it just before I got to my feet. If the Financial Times report is correct that the Government are going to give special deals for certain professions, that will come as a great shock to the other professions that will not get such a special deal, and a particular shock to cross-party colleagues in the Scottish Parliament who have asked for a separate deal on immigration in Scotland, as have Unison, the chambers of commerce in Scotland and the Institute of Directors. I look forward to the Secretary of State for Exiting the European Union coming to the House to explain what is going on here To returning to the issue of legal certainty, the Institute for Government looked carefully at different tests that might be put on this Bill to direct the courts, and expressed the view that if Parliament passes the buck on this question to the judges, it will leave the judges open to fierce political criticism. We have already seen the sort of fierce political criticism that the judges got earlier this year, and regardless of the different views we might have about the British constitution, all of us can probably accept that the independence of the judiciary is a fundamental part of any constitution that recognises the rule of law. We perhaps do not have to look too far from home in the EU at present to see a judiciary that is not independent, but I digress We need an independent judiciary in this country, and we have one, but it has to be protected from criticism because judges cannot go into print to defend themselves when criticised. We must provide the courts with a specific legal test on the face of the Bill governing the treatment of Court of Justice case law after Brexit, and that is what my amendment 137 seeks to achieve.
Does the hon. and learned Lady agree that one aspect of the legal certainty that the Government should consider is that, as our relationship with the EU evolves, we do not want our judges to have to make decisions that might affect our commercial policy, or indeed our diplomatic policy, towards the EU?
My amendment 137 seeks to ensure that: “When interpreting retained EU law after exit day a court or tribunal shall pay due regard to any relevant decision of the European Court.” The Minister questioned the term “due regard”, but it is not unknown to international law. The Lugano Convention on the mutual recognition on enforcement of judgments, to which EU and non-EU states are signatories, talks about paying “due account”, but I have followed the recommendation of the organisation Justice that it is clearer and better English to talk about paying “due regard”. Under the Human Rights Act 1998, we have a duty to take account of decisions of the Court of Justice, so paying “due regard” to taking account of such decisions is not a phrase unknown This amendment is not a Trojan horse designed to continue references after Brexit, and I say that as someone who does not want Brexit to happen. It is designed to create certainty for individuals, businesses and litigants, and also for the judiciary. It would leave it open to British courts to disagree with the Court of Justice’s interpretation, even if its case law was relevant to the case. It would not—as the Government’s current draft does—give an unfettered, politically controversial discretion to consider or ignore Court of Justice decisions as our courts saw fit The test set out in my amendment has three advantages. First, it would create legal certainty for individuals and businesses. Secondly, it would provide political cover for the courts. Thirdly, it seems to fit with the preference of the judiciary, who want a clear instruction. In recent evidence to the House of Lords Constitution Committee, Lady Hale, the new President of the Supreme Court, said: “It should be made plain in statute what authority or lack of authority, or weight or lack of weight, is to be given to the decisions of the Court of Justice of the European Union after we have left, in relation both to matters that arose before we left and, more importantly, to matters after we leave. That is not something we”— she means “we, the judges”— “would like to have to make up for ourselves, obviously, because it is very much a political question, and we would like statute to tell us the answer.” In my submission, under my amendment, statute would tell the judges the answer That is not just my view. The Institute for Government looked at the various options and concluded that the wording that I now propose would license courts in the UK to refer to the Court of Justice’s reasoning in future judgments without making those Court of Justice judgments binding on the UK courts—
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I will just finish my point, then I will give way to the hon. Gentleman The Institute for Government took the view that that approach was compatible with the objectives set out in the Government’s White Paper on Brexit and in the repeal Bill.
I just wanted to refer to chapter 12 of the book by Lord Bingham, entitled “The Rule of Law”, which I am sure the hon. and learned Lady is aware of, in which he criticises Lady Hale for her view on the relationship between Parliament and the judges. Is she aware of that?
I am familiar with that book, but I do not think that it has any relevance to what I am saying at the moment. I remind the hon. Gentleman the Lady Hale is the President of the Supreme Court of the United Kingdom, and she has made the point that what she and her fellow judges require from the Government and the House is clarity in the directions as to how they are to treat the future jurisprudence of the Court of Justice of the European Union, because if the guidance is not clear, they will come under the sort of political attack that I am sure the hon. Gentleman, who is a great supporter of the British constitution, would abhor, as I do—although I might actually prefer a Scottish constitution As I said earlier, this amendment is not a Trojan horse. It is the result of careful consideration by the organisation Justice and by the Institute for Government. It also has the support of the TUC and, I am delighted to say, the Labour party, as well as the Equality and Human Rights Commission and the Fawcett Society. One reason the Equality and Human Rights Commission is so keen on this amendment is because it is also important for rights protections. It is important to remember that EU law is largely about the rights of individuals. The Government’s position paper, published in the summer, seemed to imagine that EU law was all about disputes between the United Kingdom and the EU, but it is not. Most people who make references to the Court of Justice do so in the determination of their individual rights or their rights as a business.
I am listening with great care to the hon. and learned Lady. She will agree that references to the Court of Justice are made by the courts to interpret a particular provision of EU law, not by individuals. That is an important difference that I am sure she will appreciate.
The Solicitor General is absolutely right to correct my rather loose use of language. My point is that the majority of references made to the Court of Justice are made as a result of litigation between individuals or businesses to determine their respective rights rather than, as the Government’s position paper suggested in the summer, between the United Kingdom and the EU. That is not my view; that was the evidence of Professor Sir David Edward, who gave evidence on this topic to the Scottish Parliament in September. He was keen to impress on people that EU law is about the determination of individuals’ rights.
That interchange was quite correct, but does the hon. and learned Lady also accept that the process of making those judgments is where the Court of Justice has widened the interpretation of the treaties by using individual cases that were sent to the Court for clarification?
That is what modern courts do. If the right hon. Gentleman cared to study the jurisprudence of the supreme courts of the United States, Australia or New Zealand, he would find that that is what courts in adversarial jurisdictions do. I sometimes wonder whether the right hon. Gentleman’s real objection, and those of his ilk on the Government Benches, is not to the European Union, but to the very idea of courts and the rule of law itself Anyway, as well as creating legal certainty and protecting the judiciary, amendment 137 is also important for protecting individuals’ rights. If the UK’s courts do not pay due regard to decisions of the Court of Justice, there will be no provision to ensure that rights in the United Kingdom keep pace with EU rights after Brexit or even to encourage that to happen. That could lead to rights upheld domestically lagging behind international standards, which I am sure we would want to avoid.
Does my hon. and learned Friend agree that we have already seen examples of the denigration of our rights, particularly in aspects of the Trade Union Act 2016? Without the safety net of the Court of Justice, there is a further risk of those rights being degraded.
I agree with my hon. Friend, and that is probably why the TUC supports my amendment To keep rights up to similar international standards is particularly desirable in areas that require a degree of co-operation and reciprocity, such as consumer rights, equality protections and environmental standards. The Exiting the European Union Committee, of which I am a member, has heard much evidence recently about the importance of preserving rights protections after Brexit. EU case law has had an important impact on equality rights in the UK, and my amendment seeks to ensure that British courts will continue to pay due regard to that jurisprudence as our law develops. I urge all hon. Members to give amendment 137 their support in the interests of achieving legal certainty, protecting the rule of law, protecting the judiciary from political attacks and protecting our constituents’ rights I turn now to pending cases and amendments 202 and 203, which I am grateful to the Law Society of Scotland for drafting. There is currently nothing on the face of the Bill about what will happen to litigation pending at the time of exit day. There just is not anything. If there is, I am sure a Minister will point me to it later As the right hon. Member for Chesham and Amersham said, this is all about legitimate expectations. As I said when I intervened on her, if the Government do not move in the Bill to protect the legitimate expectations of litigants, they could find themselves being litigated against for failing to provide an effective remedy Of course, it would be objectionable on the ground of retrospectivity if a simple cut-off happens on exit day and if no consideration is given to pending cases, as other hon. Members have said. Such a situation is not without precedent. As I said in my intervention on the Minister of State, Ministry of Justice, the hon. Member for Esher and Walton (Dominic Raab), one precedent is the way in which the transition from the Privy Council to the New Zealand Supreme Court was dealt with, and I urge the Government to look at that. I urge all hon. Members carefully to consider the amendments designed to protect pending cases and pending litigation on exit day.
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.
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?
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.
My right hon. Friend makes an important point, but I wish to emphasise that my own concern is not about retaining EU law in some way, but about getting some clarity, which is certainly not in the Bill. My right hon. Friend may agree that from listening to the Government it does not appear that they are particularly concerned about this matter—yet the judiciary plainly is, and the House cannot ignore that.
I agree with my right hon. and learned Friend. It is important that during this and future debates—we will have the opportunity to return to this issue in the debate on clause 5—my right hon. and hon. Friends in the Government take due regard of this issue. The courts have already said that they are unclear and want clarity. It is not always usual for courts to come back and say that they want us to decide, but on this matter they really do. That is important, because there has to be a future point at which they understand that they do not have to have regard to any change in the European Court principles I urge my right hon. and hon. Friends in the Government to make that point very clear in the course of this process, and I look forward to their response. I think the Minister, my hon. Friend the Member for Esher and Walton, said that he would return to this issue in the discussions on clause 5, and I would certainly appreciate that I know that other Members wish to speak, so I shall conclude. I applaud and support the Government on this part of the Bill. For me, and I think for most of our colleagues, it is the most important element. We can debate money and all these other issues, but who ultimately decides on our laws is the most important element of the vote to leave. I made this point earlier, and I conclude by making it again: the single issue on which the British public voted most was to take back control of their laws. I want that to happen as we leave the European Union.
I am pleased to follow the right hon. Member for Chingford and Woodford Green (Mr Duncan Smith), because his remarks about a new arbitration system relate very much to the points I wish to address When I consider the Bill, my overriding concern is the impact on the economic wellbeing of my constituents. Members know that the north-east is a successful exporting region. Part of the reason why we have been so successful is that we have had a stable legal framework over the past 40 years. The Bill’s purpose is obviously to provide continuing legal certainty, but it seems to me that the combination of the Government’s proposal to set the exit date before the transition period is over, and their red line on the ECJ, will have the rather remarkable effect of minimising the flexibility for negotiation and maximising the legal uncertainty I very much support amendments 278 and 306, to which my hon. Friend the Member for Sheffield Central (Paul Blomfield) spoke, and new clause 14, tabled by my hon. Friend the Member for Nottingham East (Mr Leslie) Earlier, I asked the Under-Secretary of State for Exiting the European Union, the hon. Member for Wycombe (Mr Baker): if the 1972 Act is repealed before the end of the transition or implementation period, what will be the legal basis of our relations with the EU in that period and of the 57 free trade agreements that the EU negotiated with third countries? He said, “Don’t worry, it will all be set out in the next Bill, which will come in perhaps a year or 18 months.” I am sorry to say that I do not find that very reassuring. I am conscious that businesses want an element of legal certainty about the transition period as soon as possible. Waiting for another 12 months, or another 18 months, does not give them that legal certainty, which means that they can continue to close plants and divest. We are already beginning to see that. Frequently, it is not being flagged up as being about Brexit, but it is happening rather too often.
Does my hon. Friend not find it extraordinary that so many Government Members, including those on the Treasury Bench and at the Dispatch Box, have deviated from the position set out so clearly by the Prime Minister in her Florence speech? She said that during the implementation period—transition in everyone else’s terms—the existing structure of EU rules and regulations would be in place to provide the certainty that she has described. That is not what we have been hearing this evening.
No, my hon. Friend is absolutely right. The problem is this dissonance between the content of the rules and the enforceability of the rules I just want to stress this point about the impact on exporters. In the Minister’s description of how the transition period and the future might pan out, there seemed to be no acknowledgement that, in addition to some of these disputes and rights that citizens will be claiming, whether they are under competition law or in the single market, there will also be citizens in this country making claims in the other European countries, or the other 57 third-party countries. In order to export, these countries need to have more certainty about their data protection—we will come on to that another day—about professional recognition, particularly the services, about licensing and about passporting. If those rights are not enforceable, they will be losing that certainty At the moment, we have a situation in which half the exports of this country go to the European Union, and 30% go to the other 57 countries in which the EU has negotiated the legal framework. We are talking about 80% of this country’s trade and this Government are not able to tell us what the legally enforceable base will be during the transition period The right hon. Member for Chingford and Woodford Green (Mr Duncan Smith) said that it would be very nice if we could have a new arbitration system. Well, I am sorry, but that does not seem to be on offer. At the moment, there are three possibilities. One possibility is continuing with the ECJ, but the Government have set their face against that. Another possibility is to join the European economic area, but the Government have set their face against that. The third possibility is to crash out. The option of the bespoke arbitration system with the European Union will be extremely difficult to negotiate in the 15 months that we have left before the transition period begins.
With so many organisations and bodies, such as the judiciary, businesses and the Law Society, talking about the uncertainty that comes from clause 6, does my hon. Friend not agree that it is very challenging to believe the Government that this will be all right on the night when an alternative dispute mechanism would need to be created, designed, drafted, legislated for and in place before we leave the European Union?
My hon. Friend is absolutely right. It is not just one alternative system; it is 58. It is one with the EU and another 57 with everybody else. This is really not going to happen, and Ministers need to get their heads round the fact that they have some hard choices to make, and they need to be straight with their own Back Benchers and with the public about what those choices are The Government are being irresponsible in wanting to repeal the European Communities Act 1972, which is the basis of our membership, and in setting the date at the beginning of the transition period, before they can tell us how they are going to handle that period. It would be great if they could give us a proper explanation because we have not had one yet. Ministers say that the whole purpose of the Bill—the very thing that the Bill is driving at—is legal certainty, but they cannot tell us what the legal position will be in 18 months’ time. The Bill is flawed and I urge Ministers to look constructively at the amendments tabled by the Opposition Front Bench.
I approach the Bill in exactly the same spirit as my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) made clear earlier in the debate. However much I think we have harmed ourselves with the decision to leave the European Union, we have to ensure that we deliver it in an orderly fashion. That is critical in the legal area and in the business area The City of London is the financial hub of the whole of Europe, and we want it to stay that way, but it requires legal continuity and certainty to do so. Now, I accept that the Bill seeks to do this—I have no problem with the intentions behind the Bill—but it is worth stressing the importance of the sector and, therefore, the importance of the detail. Bear in mind that euro clearing involves transactions being processed every day through London to a value which exceeds our annual contribution to the European Union by a significant sum, and which significantly exceeds any likely divorce bill figure that has been bandied about The fact is that we are the basis for the euro bond market and we clear a great deal of euro business, and that generates and supports thousands of jobs. Some 36% of the population of my constituency are employed in financial and professional services. I am not going to do anything that puts their jobs at risk or reduces their standard of living. Those who voted to leave did not vote to make us poorer for the sake of a bit of ideology. We now have to find a practical means forward to ensure that we have, as the chair of the City of London’s policy and resources committee put it, an orderly Brexit as opposed to a disorderly one. Therefore, the test of the Bill’s contents is whether they achieve the Bill’s stated objective of trying to assist in that orderly Brexit and withdrawal. Well, it does up to a point, but my contention is that it only goes so far. There are number of areas where the Bill is lacking, which is why it needs improvement, and this set of amendments deals with precisely one of those areas The incorporation of the acquis into UK domestic law is accepted all round as being necessary, but the debate has highlighted a number of significant areas where there is still uncertainty and where the current wording may not achieve its objective. I want to see a deal on the basis of the Florence speech. I hope that all Government Members will stand behind the Florence speech and will not attempt to rewrite it, refine it, add to it or subtract from it. If we do that constructively, we can make good progress. I am sure that the Ministers on the Treasury Bench wish to achieve that too—well, almost all of them. But to do that we must ensure that we give the courts and contracting parties the certainty that they need My final example is that derivative contracts are generally written over a three to five-year period. Unless there is certainty as to the enforceability of those contracts, people will not contract with counterparties in the European Union. Crashing out without a deal would not give them that certainty any more than going on to WTO terms will give the financial services any certainty. It would not give the London legal services sector any certainty, doing nothing to address the establishment directive or the recognition of professional rights that currently enable British lawyers to gain and earn millions of pounds for this country annually in the work that they sell into the European Union All those things need to be done. I doubt whether we could get the detail done by the end of March 2019, and that is why a significant and proper transition, in which we can work out the details, is absolutely necessary. Let us make sure, then, that we enable the Bill to achieve that through some additions and changes to what is in it.
The hon. Gentleman rightly points out that a transition deal is required and that the Prime Minister’s Florence speech said that that would be on the basis of the jurisdiction of the European Court of Justice, and the EU institutions have also said that it has to be on the basis of the ECJ. With that remarkable degree of alignment between the British Government and the EU, should we not now get the Government to confirm once and for all that the transition deal is on the basis of ECJ jurisdiction?
I must confess that I do not see what some people’s difficulty is with the jurisdiction of the ECJ for a short period. At the end of the day, as everybody concedes, there has to be an arbitral mechanism. I rather agree that it will be difficult to invent one in time, and there may be alternatives, but, as the Justice Committee’s report in the last Parliament pointed out, the involvement of the ECJ in these areas is often extremely limited in terms of the overall amount of our jurisprudence in the courts. It would be foolish to rule out accepting it for a limited period to see us through transition Let me move on to the specific points here. We do need to pick up on certain areas. We have to have greater clarity on the interpretation of retained EU law. With every respect to Ministers, I do not think that the Bill will achieve that in its current form, although I think that it can, with further work.
Like my hon. Friend, I am keen to see that one of our major industries is preserved. Is not the overwhelming merit of his amendments 357 and 358 that they would preserve the Government’s ability to modify the regulations but give certainty on day one because they would deliver a functioning set of rules that could be on the statute book and would therefore take into account some of the cases he mentioned earlier? The key thing for the financial services industry is to have that certainty on day one.
That is absolutely right, and it is critical. With respect to the Minister of State, that is why I do not think the financial services sector will take much comfort from his rather high-level dismissal of these proposals earlier Let me just say what these two amendments, in my name and that of my hon. Friend the Member for Wimbledon (Stephen Hammond), seek to do. They seek to give a general interpretive tool to assist the transposition process. We all accept that that has to happen in that domestication into the statute book. They would interfere with the powers to make regulations conferred by clause 7, but they would reduce the need for regulations. I should have thought that it was preferable not to have to operate by regulation if we could avoid it. If we have a known and established interpretive code, that will save the need to make lots of regulations under clause 7. However, it would also, as the Minister rightly observed, provide a backstop, and that would deal with gaps that are identified but that are not picked up in the transposition process. That is what subsections (A1) and (A2) of amendment 357 would achieve These changes draw on rules of interpretation that, as I indicated in my intervention earlier, were proposed by the International Regulatory Strategy Group. That body is co-sponsored by the City of London corporation and TheCityUK, and I am indebted to the Remembrancer’s Office of the City of London corporation for the drafting of these amendments—it takes the credit for the ingenuity.
I absolutely take the spirit in which these amendments are made, and I am grateful to the Remembrancer’s Office, but does my hon. Friend not agree that we need to be cautious? He thinks that this general interpretive approach will, of itself, amend deficiencies, but does the fact not remain that we would still have to amend deficiencies in legislation, even with these otherwise helpful-looking provisions?
I do not disagree with the Solicitor General about that, but I suggest that it is not an either/or scenario. I very much hope that he will indicate that he is prepared to continue working with me and the authors of the amendments to take this forward. I see that he nods his assent, and I am sure that we can find a constructive means of doing so Let me explain why this is important. The first of the rules, in subsection (A3), would confine the territorial scope of the retained EU law to the UK. That would put it on the same territorial footing as domestic law, therefore ensuring that as a general principle, retained EU law would no longer enable or require people or businesses in the UK to do, or to stop doing, something in an EU country. It is perfectly logical from that point of view The second rule would ensure that reference to a member state in an EU law that has been domesticated was taken, post Brexit, as a reference to the UK. That would ensure that domesticated EU law would in fact fully apply in the domestic sphere, removing any ambiguity on that point. That will be necessary in a large number of instances to avoid the situation in which the UK will, in effect, be treated as a third country for the purposes of its own laws where retained EU law is currently framed by reference to the whole EU. That would be an absurdity, and we are seeking to remove that risk The third rule, in subsection (A5), would transfer all the functions exercised by EU bodies to the Secretary of State. I take the Minister’s point that not all those will necessarily be exercised by the Secretary of State. It is not prescriptive in that way—it need not be, and we can talk about that—but it would deal with the many instances where such functions are transferred to an appropriate Secretary of State as well as providing, again, a legislative backstop to cater for circumstances where the alternative arrangements had not been put in place in time, so that there is no cliff edge in that regard The fourth rule deals with the many situations where domestic authorities are required, either outright or as a precondition, to exercise their own functions to deal with EU bodies or authorities in member states. What does that mean in practice? It covers, for instance, cases where the UK body has to notify, consult or get the approval of an EU body before taking a particular course of action.
Is not the overwhelming advantage of this rule not that it would put any legal constraints on an authority but that it would allow flexibility to co-operate, making it more likely that we would achieve an equivalent regulatory solution more quickly?
That is entirely right. That rule would preserve the flexibility to co-operate with European partners and to trade into the European markets—regulatory equivalence will be critical to achieving that—and it would do so without the risk of facing any inappropriate legal constraints on the UK’s own operations once we have left I am not suggesting that the answer to everything is in this amendment. It is tabled in the spirit of wanting to work with the Government as we move forward, but it does go a long way towards delivering, in a relatively simple manner, the objective of having a functioning statute book on exit day Amendment 358 deals with what those who worked on this perceive as a potential gap concerning the interpretation of domesticated EU law. Clause 6(3), as has already been observed, will preserve the effect of case law laid down before exit day. Clause (6)(2) will provide discretion, and we have talked a lot about taking that into account. I listened with interest to the speech by the hon. and learned Member for Edinburgh South West (Joanna Cherry) regarding her amendment on that point. Again, this amendment does not provide the whole answer, but it raises serious issues that need to be looked at, and I hope that Ministers will do so.
For the sake of clarity, I think that my hon. Friend will find that schedule 8(25) contains enough scope for other documents of the type that he mentions to be considered by the courts. I hope that I have given him enough reassurance on that point.
I am grateful to the Solicitor General for that clarification. Perhaps he could confirm that he is happy to meet me and we can discuss that. [Interruption.] He says that he is of course happy to do so. I am grateful to him for that very constructive response, and characteristically so. That will enable us to deal with things like negotiating texts, which we sometimes know of as the travaux préparatoires within the EU context. [Interruption.] Again, the Solicitor General confirms that that is the sort of thing that we can discuss Why is that important to the International Regulatory Strategy Group, and why is the group central to this? Its membership includes virtually all the significant representative institutions of the London financial community: the stock exchange, the Association for Financial Markets in Europe, the Association of British Insurers, the British Bankers Association, the City of London corporation and major commercial organisations such as Credit Suisse, Aviva, Allen & Overy, Allianz, Fidelity, HSBC and Lloyds. The list includes all the key underpinners of the City’s operation We need to take those important matters into account, and I am grateful to the Solicitor General for his willingness to meet and discuss them. I commend to him and other Ministers the observation made by my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) about the Francovich cases. It clearly cannot be the Government’s intention to remove people’s opportunity to seek remedies for wrongs that were done prior to our departure. My right hon. Friend raises a critical issue, and it is important to get this right I hope that Ministers will observe that the guidance in clause 6(2) is clearly not sufficient to meet the concerns of our senior judiciary and that they have said as much. When Lord Neuberger, a distinguished President of the Supreme Court, says that, ironically, the discretion is so wide that it puts judges at a degree of risk of political attack, he has to be taken seriously. Several right hon. and hon. Members have praised the quality of our judiciary, and I totally agree with them. We ought to listen very carefully when our judiciary say that, as a matter of protection against malicious attack of the sort that they have suffered in the past, they look to Parliament to safeguard their ability to function independently in cases that are quite politicised.
I am listening with care to my hon. Friend. Will he accept from me that there is another danger, namely that by using too many prescriptive words in the Bill, we could fetter the discretion of the courts in a way that they would find equally unacceptable? There is a balance to be struck here.
There is, and that is why it is all the more important—perhaps unusually so—for Government to talk quietly with the judiciary to find out what they are saying. They cannot compromise their independence, but those of us who are in touch with them want to make sure that the Government understand the root of their concerns. I am sure that there is a constructive way forward on that I know that the Solicitor General will be aware of the problem, because it was referred to in the Justice Committee’s report in the last Parliament. I also draw his attention to the concerns raised by Lord Thomas of Cwmgiedd, the recently retired Lord Chief Justice, in the evidence that he gave only a couple of days before he retired from that post. He gave a pretty clear steer on the sort of thing that could be helpful and posited various types of language. I hope that the Solicitor General accepts that we need to look further at the matter, and I hope that we can do that constructively as we take the Bill forward.
Many of my constituents and the businesses in my constituency have raised the importance of a transitional period. The UK transition will inevitably bring with it changes to the way in which goods and services are traded between the UK and the EU, and, although businesses on both sides are beginning to anticipate and plan for change, the scope and nature of the changes are as yet unclear. The consequences could range from moderate to significant disruption to current rights and freedoms. The issue goes far beyond banking and impacts on any business that sells goods or services between the UK and the EU The negotiation of a new future relationship is a process separate from the article 50 negotiations, and at present there is no indication that a new long-term agreement on trade and services will be in place at the point of exit. Businesses in the UK and the EU face three unknowns: what the future will look like, when the arrangement will be in place and what will happen in the period between the end of the current EU framework and the start of the future framework. That is why transitional arrangements are essential to avoid a damaging cliff-edge effect at the point of exit Businesses, customers and regulators will need time to adapt and settle into a new framework. A transition period would reduce the risk of businesses making potentially premature decisions about the structure of their operations. This is why negotiating and embedding transitional arrangements in a withdrawal agreement between the UK and the EU would give both sides a greater degree of visibility and certainty in planning for the future. Clause 6 of the Bill makes it clear that the UK courts will not need to keep even half an eye on the case law of the ECJ. In legislative terms, this is as clear a statement as we can get that the UK courts will not have to follow ECJ decisions, directly or indirectly, post-Brexit.
The debate on this string of amendments includes considering clause 6 stand part. I was extremely pleased that, after my intervention earlier, the Minister indicated that the Government intend to bring forward an amendment on Report to take up what I believe is an important recommendation made by the Women and Equalities Committee in the report we published in February. The recommendation is to have a mandatory ministerial statement of compatibility with the Equality Act for all Bills and secondary legislation related to exiting the EU This is important because the Government have set out very clearly that they do not want any backsliding on our equalities agenda or, indeed, our equalities law when we leave the EU. With the sort of amendment that my hon. Friend mentioned, we will have more of a guarantee that that will actually happen. The EU White Paper published in February says very clearly that the Government want to ensure that “the same rules and laws will apply on the day after we leave the EU as they did before.” This approach will preserve the rights and obligations that already exist in the UK under EU law and provide a secure basis for the future Certainty is needed in relation not only to the laws themselves, but to the frameworks within which those laws will operate. The Select Committee’s inquiry into exit from the EU found that things will change for individuals after we leave the EU because the UK courts will no longer be able to disapply law that is found to be incompatible with equality laws, as is currently the case with the CJEU. The UK will lose the particular function of the CJEU as an arbiter of incompatibility with the principles of equality. For the Government to achieve the important objective that they have set out of protecting equality rights as they are now, we will have to do more than simply transpose the legislation; we must also provide such additional functionality This really matters to our constituents. It really matters to women such as Carole Webb, who was fired by her employer for being pregnant. She had her case heard in the CJEU, and her rights were enforced. It really matters to mothers such as Sharon Coleman, who just wanted to be able to work more flexibly to care for her disabled son. She had her case heard by the CJEU, and her rights were enforced. We need to make sure that this continues in the future. The very sensible and practical recommendation put forward by the Women and Equalities Committee proposed a simple solution for the Government. It is that a statement of compatibility should be published by Ministers when any statutory instrument or Bill related to EU withdrawal is published to explain why the proposals are or are not compliant with the Equality Act. That would mirror the provisions set out in sections 19 and 4 of the Human Rights Act 1998. This would make it clear to the courts that they must take account of the Equality Act, and that if legislation was incompatible, the courts could indeed make a declaration of incompatibility, which would have to be rectified by the Government, as is now the case This recommendation is important because, as I have said, it will enable the Government to adhere to what they have set out as their policy. It will fill a missing gap that currently is filled by the Court of Justice of the EU, and it will give the courts in the UK the potential power to make declarations of incompatibility. For those looking to the public sector equality duty to partially fill that gap, I would point out that we set out very clearly in our report that this duty does not apply to primary legislation, and that is why such a change is needed.
My right hon. Friend is making a powerful case, as always, for equality. Does she agree that co-operation on issues such as female genital mutilation, human trafficking and other gender-based crimes should also be included in the exit agreement?
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.
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.
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.
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.
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.
I am listening with great care to my right hon. Friend. Is not the simple answer that the Supreme Court will apply the rules of precedent in accordance with its practice direction of 50 years ago, which allows it to depart from previous case authority where it appears right to do so? Principles have been set out in domestic law by the Supreme Court and its predecessor, the judicial committee of the House of Lords.
With great respect to the Solicitor General, I draw him back to clause 6(3)(a), which directs the lower court in such a case to continue to apply the retained case law on the basis of ECJ jurisprudence, not Supreme Court jurisprudence. If that is not what the Government intend, they need to redraft clause 6(3)(a). They can have it one way or the other, but we cannot in this country have a legal system that tells our courts to do two different things. That is why the former judges are causing a harouche here. They are not being told what we, as a Parliament, are expecting of them.
What we are seeking to do is, in effect, settle the status of retained EU case law so that it is equivalent to that of Supreme Court authority. That is the explanation of the hierarchy that my right hon. Friend has, very fairly, outlined.
If the Solicitor General is trying to argue that he is aiming for equality between the jurisprudence of the European Court of Justice and the jurisprudence of the Supreme Court, that poses an insoluble problem for the lower court. One has to trump the other, but if the Bill is trying to make out that one trumps the other, it does not do it. It is really quite important for a human being who speaks English and reads the Bill to be able to see which trumps which.
I understand exactly where my right hon. Friend is coming from. I have to say that my reading of this was that once the Supreme Court had departed from the jurisprudence of the European Court of Justice in a particular case, thereafter the Supreme Court’s jurisprudence would be the one that the lower court would have to follow. However, that does not get us past the problem that the Supreme Court is provided with no guidance whatever about the purposive nature of EU law and how it should approach it.
Let me deal with my right hon. and learned Friend’s helpful intervention in two steps. If what he said in the first step about the supremacy of the Supreme Court’s rulings is to apply—which is not inequality, but puts the Supreme Court above the ECJ in the interpretation of these matters for retained law—that is a perfectly clear position, and one that I, as a matter of fact, would welcome; but then the Bill should bloody well say so. However, he is right, in that even if we presume that the Bill will be adjusted—as I am sure it will be, in the House of Lords—to make it clear that that is the case, we face the next problem, which is what it is that the poor old Supreme Court is meant to be doing.
I understand the words “in accordance with any retained case law” in clause 6(3)(a), but I do not understand the words “any retained general principles of EU law” That suggests that the court must adopt a methodology which has been retained. What we want our courts to do is revert to what they used to do, which was interpreting statute without reference to the jurisprudential and teleological techniques adopted by the European Court.
No, no.
Notwithstanding the chuntering of my right hon. Friend the Member for Broxtowe (Anna Soubry)—and she is a friend of mine, but she is quite wrong about these issues—I happen to agree with my hon. Friend. My point is, however, that it does not matter nearly so much which side of the argument we are on as that we should be clearly on one side or the other I feel sure that the reason clause 6(3)(a) says that the court should judge “in accordance with…any retained general principles” is exactly the reason that was cited by the former Attorney General, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). As we see in clause 5(2), the purposive and teleological nature of the judgments, and the ability of those judgments to be used to quash even Acts of Parliament, should apply to the way in which our courts continue to interpret retained law. That, I think, is the intent of clause 6(3)(a) This leaves us with the wide-open, yawning question of whether the Supreme Court should be making judgments when it is, we are told in clause 6(4)(a), “not bound by any retained EU case law”, but should nevertheless apply the general principles, and try to use the same purpose and teleological reasoning that the ECJ uses. We are not told, and the judges are not told. Far from creating legal certainty, clause 6 seems to me to create the largest possible degree of legal uncertainty. That is not a tolerable position. It is not one that the Government wish to achieve, and not one that the Opposition wish to achieve. I do not believe that anyone in the House of Commons wishes to achieve it. However, it is what the clause, as currently drafted, achieves.
The right hon. Gentleman is absolutely right to point out issues that need to be clarified as soon as possible, which is why new clause 14 says, in a very polite way, that it would help everybody if the Government, within one month of Royal Assent to the Act, could publish a report explaining in proper detail how EU retained law applies in that transition period.
The hon. Gentleman did not allow me to intervene on him, but let me say now that, unfortunately, his point is wholly irrelevant to clause 6; it relates to the transition which will be covered in another Bill. My concern is about the continuing state of UK law following exit. This is not going to be resolved by the Government producing a White Paper. It has to be resolved by clause 6 being drafted in a way that creates the very legal certainty that the Government so admirably wish to create, and which they at present so abundantly fail to do.
My right hon. Friend is asking some very interesting questions, but that does not necessarily mean—he, or indeed any of us in this Chamber, not being a judge—that he is drawing the right conclusions. He is pointing to several questions that need to be raised, however, although he has not mentioned that clause 5(1) 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,” and that must include this Bill Furthermore, my right hon. Friend has not quite taken on board what the Solicitor General said with respect to our application of the stare decisis method of interpretation, which the Supreme Court will be obliged to apply after exit day. So he is asking some interesting questions, but I do not think we can necessarily draw conclusions from them.
I am grateful to my hon. Friend for his comments, and I am very happy to leave it to the Government to draw the conclusions and answer the questions in due course. I do not think clause 5(1) helps at all, however, because my hon. Friend is right that it excludes the possibility of subsequent enactments being subject to the principle of supremacy, but in clause 5(2) it is equally clear that, so far as the retained law is concerned, the principle of supremacy remains, and therefore there may be judgments in the future that already existing law, where there is judged to be a conflict between an Act of Parliament and an ECJ ruling, should have the result that the ECJ ruling triumphs over the Act of Parliament. That is a perfectly possible and sensible position to adopt. It is not one my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) and I would like to see, and I doubt that my hon. Friend the Member for Stone (Sir William Cash) would like to see it, but it is nevertheless a perfectly tolerable position—and it then needs to be carried over for the Supreme Court just as much My point remains, however, and it is a simple one: that if the Bill is trying to achieve a hierarchy here, it needs to state what the hierarchy is, and in stating that hierarchy, it needs to make it clear who governs whom. At the moment, the Bill does not do that.
It is a pleasure to follow the right hon. Member for West Dorset (Sir Oliver Letwin), who, in uncharacteristic fashion, had to knock several lumps out of his own Front Bench to get it to see sense around some obvious problems with clause 6. I have chosen to rise at this point in the evening to pick up on some of the inconsistencies and flaws, revealed during this debate, in the insufficient—in some cases, absent—replies from the Government Front Bench My hon. Friend the Member for Sheffield Central (Paul Blomfield) asked the Minister very clearly whether the jurisdiction of the ECJ will apply during the transition period. I do not believe the Minister has addressed that, but I am happy to give way if he would like to do so now.
The hon. Gentleman was not here for large parts of the debate; if he reads Hansard, he will see that that was addressed very squarely.
For the benefit of viewers who have just tuned in on BBC Parliament, I am happy to give way to the Minister a second time if he would like to state very clearly for the record whether, in his view, on that fundamental point, the jurisdiction of the ECJ will apply during the transition period. It is a very simple question and it only requires a yes or no answer, but he will not respond.
rose—
I will certainly give way to my hon. Friend.
I suspect that the Minister has been taking lessons from the Foreign Secretary. He says that we should read Hansard, but perhaps we will find a giant lacuna there, and perhaps these issues will come back to haunt him.
I have to agree with my hon. Friend, but I am happy to be generous and give way to the Minister again. This is a very simple yes or no question.
The hon. Gentleman is very kind, but neither he nor the hon. Member for Ilford South (Mike Gapes) has been in here for the entirety of the debate. This issue has been addressed squarely. We are not going to pre-empt or prejudice—[Interruption.]
Order. I call Wes Streeting.
I am not sure that the Minister had a chance to finish his point, and I would be happy to give way again so that he can answer this central question. It is a simple question. The reason why the issue is so problematic is that many of us have been listening carefully to the concerns being expressed in many sectors of our economy about the uncertainty surrounding Brexit. We have heard a simple message: that the biggest risk to this country’s economy at this time is uncertainty If the Government want to reassure those sectors of the economy—manufacturing businesses with supply chains in the European Union, for example, or financial and professional services worried about whether contracts will still be honoured and upheld or whether jobs and activity can be relocated—they could give those industries the central message that during the transitional period, the existing structure of EU rules and regulations will apply.
Perhaps I may assist the hon. Gentleman. I was present during the debate when the Minister addressed this question and, so far as I can remember, he did not answer this perfectly straightforward question at all.
I am grateful to the right hon. and learned Gentleman. I am sure that if he did not hear a clear answer, most other Members did not hear one either. This is a golden opportunity for the Minister to answer the question. The Secretary of State has now arrived in the Chamber. Perhaps he will be able to help the Minister out. The simple question is whether, during the transition period, the European Court of Justice will still have jurisdiction in the way that it does at present. Can the Secretary of State give us clarity on this one point? This is a simple and fundamental question—[Interruption.] Come on!
rose—
Ah, the real power behind the throne! I will give way to the hon. Gentleman.
I am grateful to the hon. Gentleman for giving way. The answer ought to be perfectly clear. If we are still under the jurisdiction of the European Court of Justice, we will not have left the European Union.
I am grateful to the hon. Gentleman for setting out in the House today the consistent view that he has held throughout the referendum campaign and during the debates that have followed The Government have a fundamental problem. This is not about whether it is the will of the House that the ECJ should have jurisdiction during the transitional period. I think that most Members, whether they voted leave or remain, understand the central importance of giving business certainty right at this moment about what will happen when we leave the European Union. The Prime Minister understood that when she made her speech in Florence, in which she said that, during the transition period, “the existing structure of EU rules and regulations” would apply. She also said that we could agree “to bring forward aspects of that future framework such as new dispute resolution mechanisms more quickly if this can be done smoothly.” The implications are clear. It was the Prime Minister’s view in Florence that, to provide business with the certainty that it needs now about jobs and economic activity, we would remain in the single market and the customs union and, necessarily, under the jurisdiction of the European Court of Justice for a time-limited transition period.
Is my hon. Friend as puzzled as I am that Ministers are unwilling to support the policy of the Prime Minister? The Prime Minister made her position very clear, when answering a question from the right hon. and learned Member for Rushcliffe (Mr Clarke), that the writ of the European Court of Justice would run during the transitional period, or at least at the start of it.
I am just as bewildered as my right hon. Friend. Many Members may not have seen it, but the front page of The Daily Telegraph tomorrow carries a splash entitled “The Brexit mutineers”. On that front page, Members will find people such as the right hon. Member for Broxtowe (Anna Soubry), the hon. Member for Bromley and Chislehurst (Robert Neill), the right hon. and learned Member for Rushcliffe (Mr Clarke) and other Conservative Members who have done nothing else during the course of this debate but try to get the Government to a position whereby we leave the European Union in a way that provides the most clarity, the most certainty and the most stability, which is in the interests of our economy Actually, as my right hon. Friend the Member for East Ham (Stephen Timms) mentioned, the real Brexit mutineers are not people such as the right hon. Member for Broxtowe because, ironically, the Members on that front page are upholding the principles of the Florence speech. The real Brexit mutineers are members of the Prime Minister’s Cabinet, and they are in the Department for Exiting the European Union and in the Foreign and Commonwealth Office. Those people are the real Brexit mutineers, and they should be explaining why they are not prepared to back the clear positon set out by their own Prime Minister.
Does the hon. Gentleman share my concern that what he describes is a blatant piece of bullying that goes to the very heart of democracy? None of the people who have been named—I take it as a badge of honour—want to delay or thwart Brexit; we just want a good Brexit that works for everybody in our country. That is not a lot to ask for in a democracy.
I wholeheartedly agree with the right hon. Lady. I know that she is not someone to be pushed around. In fact, when I looked at the front page of The Daily Telegraph, I saw a whole range of principled Conservative politicians with whom I have a number of disagreements, but I look to them as distinguished parliamentarians who always act in what they believe to be the best interests of their constituents and their country That brings me to the central challenge at this point in the Brexit negotiations. Manufacturing firms with supply chains in the European Union are having to make decisions now, before Christmas, about jobs and activity and about whether to renew contracts or sign new ones. The clear message from financial services and professional services, the concerns of which the hon. Member for Bromley and Chislehurst has attempted to address through his amendments, and from other leading sectors of our economy is that unless there is a clear sense of direction and some reassurance about the rules of the transition period and how it will operate, they will be forced to activate contingency plans as early as now and before Christmas, but certainly into the first quarter of 2018. The clock is ticking, and time is running out. In muddying the waters during the course of today’s debate, Ministers have done nothing at all to reassure businesses that are hovering over activating their contingency plans.
I completely agree with my hon. Friend about the importance of certainty, and I support what he says about the transition. Does he agree that what is crucial for certainty is ruling out a no-deal, catastrophic Brexit, about which so many people are worried? Many businesses in my constituency are now hedging against it, because they are fearful of the consequences.
I wholeheartedly agree. We hear this fallacy that those of us who warn about a no-deal Brexit are somehow willing to sign up to any kind of bad deal—as if there is a bad deal that could possibly be worse than no deal. I would like to hear an intervention from anyone on the Government or Opposition Benches who can explain how crashing out of the European Union over a cliff edge with no deal—meaning an immediate end to all existing contractual and legal obligations and to all the frameworks and protections, a hard border in Ireland, and the end of our trading agreements not only with the European Union, but through the European Union to countries across the world—could be worse than any kind of transitional deal. No deal would be the very worst deal, and it is astonishing that there are Government Members who not only entertain the possibility of no deal, but are enthusiastically encouraging it with the views that they put forward There have been many problems with the Prime Minister’s approach to Brexit, but in the Florence speech she tried to set out a practical and flexible framework through which we could now give certainty to business about the transition period and, crucially, through which there would be only one set of changes from our membership of the European Union to our future relationship with it once we leave This evening, the Government Front-Bench team have driven a coach and horses through the Florence speech. They cannot provide business with the clarity it needs on how the European Court of Justice will operate during transition. They ought to support our position, which is to remain in the single market and the customs union for the time-limited period of transition, because that would give business the certainty it desperately needs For Conservative Members to put their ideological vanity against the best interests of the British economy is selfish, reckless and irresponsible, and people should have no truck with it.
I will pick up two or three points that have been made in this important debate. There have some magnificent contributions, particularly from my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). I will start with what he had to say because it is central to the debate I appreciate what the Government have been trying to do with clauses 5 and 6 on the way in which retained EU law should be interpreted. I agree with my right hon. Friend that the wording is opaque, although I think that I understand the Government’s intention on the role and supremacy of the Supreme Court in developing law, but that still does not get us away from the fundamental problem that EU law is different from our law. Its rules of interpretation are different and its purpose is different We will come back to that problem right through this Bill, whether on the charter of fundamental rights or the general principles of EU law. We cannot just take EU law and drop it into our law without leaving guidance on what the Government expect that law to be used for. I worry that the lack of explanation is most peculiar. It is not a question of wanting to keep EU law—I assume that it will all ultimately go away, anyway—but in the meantime there is a lack of clarity, and I can well understand why the judiciary, particularly the senior judiciary, are troubled by the lack of guidance. It is almost as though the Government have found it too embarrassing to want to grapple with it. They want to maintain continuity, but they do not want to maintain the implication of continuity because that is a difficult message to sell to some Conservative Members We will really have to look at this as we go through the Bill, and I am quite prepared to try to help the Government to find a way through. It is not that I want to keep its aura, and there are many Conservative Members who do not like it at all, but the simple fact is that we need to look at it The other issues that have been raised are absolutely right, but they are not relevant to this debate. We do not have the slightest clue what the transitional arrangements will be. We will have to have a completely separate piece of legislation to sort that out, and I suspect it will take a long time to go through this House. Ultimately, if we have a long-term agreement, there will be an interesting issue about whether we will be instructing our courts to mirror EU law so as to maintain comity with the Court of Justice of the European Union or risk constantly having to readjust our legal frameworks for the sake of that deep and special relationship I do not want to disappoint some of my right hon. and hon. Friends too much, but the harsh reality is that our geographical location and our desire to have a close trading relationship with the European Union will inevitably mean that decisions of the Court of Justice of the European Union continue to have a major influence on our law here—I am afraid that was rather disregarded in last year’s referendum. I think that it is called globalisation, and we will have to return to that as we go along.
We have listened carefully to all hon. Members in the various contributions and concerns that have been raised, and taken account of the amendments in this group. There are issues we will take away for further consideration. I refer in particular to what my right hon. Friend the Member for Basingstoke (Mrs Miller) said about the Equality Act 2010, and my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) raised her issue powerfully and constructively. My right hon. Friend the Member for West Dorset (Sir Oliver Letwin) also raised a number of points, and I think that we can address those. I think that they are covered by clause 6, but I will take them away and we will work further to make sure we provide the clarity that is required.
rose—
I am not going to give way; the hon. Gentleman has had his opportunity. Time is running out and I want to give the hon. Member for Nottingham East (Mr Leslie) the chance to wind up. We cannot accept amendments that create more rather than less legal certainty, so I urge all hon. Members to pass clause 6 unamended this evening.
I thank Members for a debate that has covered a wide range of issues relating to transition and the application of EU law, but that has also revealed a number of interesting facets of Government policy. It was particularly stark that the Minister, who would not give way just now to my hon. Friend the Member for Ilford North (Wes Streeting), could not let the words, “The ECJ would apply during a transition” pass his lips. That was the very phrase the Prime Minister, for it was she, put into the Florence speech. I thought that speech was Government policy, but it turns out apparently not to be—not today.
rose—
Oh, perhaps I am wrong. I will give way, of course.
I will repeat, in terms, exactly what I said earlier. We want an early agreement on an implementation period. As the Prime Minister said in the Florence speech, that may mean we start off with the European Court still governing some rules we are part of for that period, but the Government are also clear that if we can bring forward a new dispute resolution mechanism at an earlier stage, we will do so. The hon. Gentleman should have listened to what I said earlier.
Well, well, well. The number of caveats, little changes and weasel words within that particular obfuscatory explanation were not as clear as what the Prime Minister said at that time. That was fascinating and I suspect the Minister will get a phone call from No. 10 in the morning. New clause 14, which I would like to test the will of the House on, is still very relevant; we need to get clarity from the Government a month after Royal Assent on how exactly transition would apply. It is clear that although they say there will be an Act of Parliament, we do not know that that can be completed and enacted before exit day. We may find ourselves with a vacuum. We need much more clarity from Ministers. The Minister has proven the point and made the case amply, which is why I wish to press new clause 14 to a vote Question put, That the clause be read a Second time.
I rise to present the petition from the fierce and dedicated women of Glasgow East who met on Saturday for a WASPI public meeting The petition states: The petition of Glasgow East Constituency, Declares that as a result of the way in which the 1995 Pension Act and the 2011 Pension Act were implemented, women born in the 1950s (on or after 6 April 1951) have unfairly borne the burden of the increase to the State Pension Age; further that hundreds of thousands of women have had significant changes imposed on them with little or no personal notice; further that implementation took place faster than promised; further that this gave no time to make alternative pension plans; and further that retirement plans have been shattered with devastating consequences The petitioners therefore request that the House of Commons urges the Government to make fair transitional arrangements for all women born in the 1950s (on or after 6 April 1951) who have unfairly borne the burden of the increase to the State Pension Age And the petitioners remain, etc [P002077]
I thank Mr Speaker for granting me this important Adjournment debate on diffuse intrinsic pontine glioma, a rare form of childhood brain tumour I applied for this debate to raise awareness of DIPG, to highlight the need for more research and development, to try to get better treatments and to bring to this Parliament the heroic story of seven-year-old Luke Stewart, his mum, Jennifer Ure Stewart, his dad, Mark and his grandfather, Robert Ure. DIPG is an aggressive form of tumour on the brain stem. Fewer than 40 children a year in the UK develop them, but they account for 10% to 15% of all brain tumours in children. In October 2017, it has been reported officially that 38 children died of DIPG, and there is no cure Although rare, DIPG is actually the second most common type of primary, high-grade brain tumour in children. It originates in the area of the brain stem called the pons, the area of the brain that is responsible for a number of critical bodily functions, such as breathing, sleeping and blood pressure. Not all cases of DIPG are identical, and it can affect each child differently, including through pressure on the cranial nerve, long tract or cerebellum. Childhood brain tumours are classified according to the type of cells—whether they are diffuse or focal—and the grade of aggressiveness. These particular tumours are high-grade, aggressive and relentless, growing extremely quickly, often spreading throughout the brain stem and into the spinal cord. Sadly, this means that they are very dangerous, difficult to treat and have a poor prognosis. Although it is not yet known what causes DIPG tumours, there is currently ongoing research aimed at discovering their genetic causes, which could help early detection and the development of future treatments.
I congratulate the hon. Gentleman on bringing this important issue to the House at such a late hour. DIPG is one of those diseases for which there is no treatment, no cure and no survival rate, but if we are to find a way forward, we need research and development. I hope that the Minister will respond positively to the hon. Gentleman’s request. Does he feel now is the time for that research and development to take place?
I thank the hon. Gentleman for his intervention. I shall come on to the subject of research and development. I have been in the House for seven years, and I live in hope of receiving a positive response from the Treasury Bench. Perhaps tonight we will get that far; indeed, I am sure that we will I welcome the research that is being done, but the current lack of sufficient research, available information, awareness of the condition and effective treatments can make DIPG all the more distressing for those diagnosed with it, as well as their extended families When it comes to treating the tumours, patients are usually offered courses of radiotherapy over three to six weeks. Because of the dangers of operating on such a critical area of the brain, surgery for some is simply not an option. In the UK, various studies show that chemotherapy is ineffective in treating childhood DIPG, although it is used in innovative ways in other countries, such as Mexico. I shall say more about that shortly Because the treatment options are extremely limited, the prognosis for children diagnosed with DIPG is poor. Although each child’s condition is unique, 70% of children with DIPG are not likely to survive for more than a year after diagnosis, and 90% do not survive for two years. The lack of knowledge of the condition means that children and their families are living from day to day. Greater investment in research on the condition might bring us one step closer to finding out more about the specific genes and molecules involved in DIPG tumour formation. That vital research could go on to create innovative new treatments, meaning that 40 more children each year—those who are struck down by the disease—could go on to become the doctors, scientists and even politicians of the future. It is important that we give those children the opportunities that they deserve, and give their families the hope that they need The famous astronaut Neil Armstrong’s daughter Karen died of DIPG 40 years ago at the age of just two, yet to date there have been very few advances in the treatment offered, which is devastating for parents. One such story is that of Luke Stewart. Luke is a seven-year-old boy who is happy, healthy, active, kind and caring. He comes from a loving family—mum, dad and two little brothers: Lewis, who is five, and Lochlin, who is just one. In January this year, their world was blown apart when Luke was diagnosed with DIPG. Doctors advised Luke’s mum and dad that he could survive for six to nine months if he received radiation treatment, the only option offered by the NHS in the UK. I cannot imagine what that kind of news does to a parent The family were informed that radiation treatment would prolong Luke’s life by only a few months, and that, although it would make him more comfortable, he would not survive. They were advised by the NHS that there were no other treatments available worldwide, or any clinical trials, that could help their son, and that on completion of the radiation treatment he would receive only palliative care. They were broken by that news, but they knew that they had to keep fighting for Luke, so they began to search for hope elsewhere. That was the start of their incredible journey to Mexico to save their son’s life. The journey to Monterrey began when, during a visit to the Chelsea football club training ground, they met a family from London whose daughter had the same condition. They had known of each other from Facebook conversations, but were totally unaware that both families would be at the venue at the same time. The London family were leaving for Mexico within days so that their daughter could receive a new, ground-breaking treatment That gave the Stewart family renewed hope. They researched the entire programme, which is called intra-arterial chemotherapy. Catheters are placed in the basilar and femolar arteries, and systematically deliver drugs approved by the Food and Drug Administration into the brain stem. The treatment has also been combined with intrinsic and T-cell immunotherapy. The Stewart family left for Mexico at the beginning of May, when they witnessed Luke’s condition deteriorating rapidly. This was the only hope that they had to offer him at that time: it was their last hope. Not only were they in emotional turmoil, having to deal with such a devastating situation, but they had to fundraise continually to secure money for the treatment.
The London family to whom my hon. Friend referred are constituents of mine, the Lau family. No one can imagine what a family goes through following a diagnosis of this kind, but I have been struck by how much more pressure is placed on families who are willing to move heaven and earth—and literally move across the earth—to ensure that their children have access to treatment that could potentially extend their lives, but at considerable cost. Does my hon. Friend agree that the Government should look urgently at what can be done to make sure that no families who can have access to treatment are prevented to do so by financial barriers?
Absolutely, and that is one of my key asks of the Government. Indeed, when a family are put in a situation where they are about to lose their child, they only have the hope of trying anything they can find, and many families, including my hon. Friend’s constituents, have made the journey to Mexico When Luke arrived in Mexico with his family, it made him the seventh child worldwide to receive this ground-breaking treatment; he was also the second child from the UK. The website makingdipghistory.com is where people can see more about this condition and its history Luke’s clinical condition on his arrival in Mexico was extremely serious. This once active, confident and independent little boy could not walk properly, was constantly falling over, and was always tired, and his previously happy demeanour had changed completely. During this period, he regularly talked to his parents about dying—no words a parent should hear from their child The family spent four months in Mexico. During this time Luke received six IA treatments and four immunotherapy treatments. The costs associated with these treatments and all living and travelling expenses were self-funded by the family as the result of the generosity and financial support they received through their justgiving.com page During this period, Luke’s clinical condition improved dramatically; he was outgoing, happy, walking without any risk of falling over, running, playing with his brothers, communicating normally with his family, and making no further mention to his parents about dying. In the time that Luke had been receiving his treatment, his tumour had shrunk, the cancer activity was lower, his new cell generation was high, and his cyst had shrunk and become pure fluid. His clinical improvement means that he can live life as a seven-year-old in the knowledge that he is 11 months past diagnosis, a point at which the NHS said he would not survive. As if it was a miracle, he is now back at school. It is too soon to tell, but Luke’s improvement is an enormous step in the right direction. Cancer treatments are by their very nature evolutionary, so do we not need to embrace this treatment instead of ignoring it? Luke’s parents had no hope—their son would die. They had to at least try. Luke and his mum, and often his grandad, Robert, now require to go back to Mexico every five weeks for a period of five days to ensure that he continues to receive these ground-breaking treatments Before and after each treatment, Luke gives a sporty thumbs-up to tell the world on Twitter that he is okay, and now people from all over the world are posting selfies at #thumbsupforluke. We can follow everything about Luke at his Facebook page, “Help Luke make history” It is important to highlight the incredible resilience of families, just like Luke’s, who do not take no for an answer and carry on fighting, searching for access to treatments that could save their child’s life. The family have asked me to express their heartfelt thanks to all who have supported Luke’s crowdfunding campaign, which has managed to raise over £180,000 of the £350,000 to fund his treatment in Mexico. There is no NHS or other Government resources to financially support families when they have to have treatment elsewhere outside the NHS So what about the future? Not only do advances in research help progress new treatments, but that will also allow us to instil awareness of this rare condition throughout our healthcare system. This will help us improve the level of support we provide to the family. It is usually left to the parents and families to search the internet for ways to find help, with most healthcare providers in the UK left with their hands tied, with limited treatments to offer. As I have mentioned, Luke’s family were incredibly lucky to have such a successful crowdfunding campaign, but that is not available to everyone, and they still need more help The level of support for families is simply not good enough. We need extra support as soon as a child is diagnosed, and it must be support which recognises the fast-acting nature of the disease. Families will experience extreme pressure on their relationships, as they have to come to terms with understanding such a rare condition, as well as the huge financial turmoil that can come with a diagnosis. DIPG, as well as other childhood brain tumours, have a huge impact, and that is why I am asking for more investment, and more research and development to create that awareness and hope of a cure So may I ask the Minister to look at developing greater incentives for research and development into DIPG, so that families and children can access the support and information that they require at their time of need? May I also raise the critical issue of funding for research as a whole? Following a debate on childhood brain tumours in this House last year, it is very welcome that the Government set up a working group, looking at how to increase the impact and quantity of brain tumour research. I look forward to the group’s second report, which is due to be released imminently; perhaps the Minister can give us some guidance about when this report might be released I acknowledge that a significant amount of money is already contributed through the National Institute for Health Research and the Medical Research Council, but much more needs to be done, and quickly. I hope that the Budget at the end of this month will contain an allocation for this kind of research. Some progress is being made with a programme called Instinct, involving pioneering research by experts from Newcastle University, the Institute of Cancer Research and the University College London institute for child health, which looks at high-risk childhood brain tumours, including DIPG. This extremely important effort is led by Dr Chris Jones, who has extensive experience in understanding the genetic basis of these tumours and what is driving tumour growth Can the Minister confirm that when the UK leaves the European Union, the UK medical research community will continue to have access to critical EU funding and collaborative programmes once Horizon 2020 has ended? Given Luke’s example, and the fact that the family have had to go to Mexico, it is essential that co-operation on research is global, so that every child in need of help can access it, no matter where they are. Could Luke’s case be the pathway for better treatments and understanding of DIPG here in this country The number of children dying from cancer each year in the UK has fallen in the last 20 years, but we must not stop here. Research is the key to our progress. It is not right that the rarer a cancer is, the less attention is paid to the funding of research. There must be a unified approach in applying the progress that is made. The rarity of such conditions means that they accumulate to a far smaller market for pharmaceutical companies, which tend not to supply the drugs that are required. Research and development is difficult, particularly in relation to children I know that it would mean a lot to Luke and his family if the Minister or even the Prime Minister could meet them to talk about their experiences and listen to their views on how research, funding and information in this area might be improved to secure a better future for all children with DIPG. Will the Minister make that commitment to meet the family? I would like to finish by paying tribute to the resilience of Luke and his family, and of all the other families who continue to fight for their children. I hope that this debate has made a small dent in raising awareness of DIPG and other killer cancers in children. Luke has a chance, his parents have hope, his extended family have pride, and we all watch and admire their strength, resilience, dignity and love for Luke. Let us use this half hour of valuable parliamentary time to make a difference to all families who are affected by DIPG and similar diseases, and to give those children hope.
I would like to thank my hon. Friend the Member for Edinburgh South (Ian Murray) and the Minister for facilitating my short contribution this evening DIPG is a complex and rare ailment, and, as we have heard, the cause is not yet known, but it is important to note that the condition is no one’s fault. The Help Luke campaign raised more than £181,000 from the community and supporters so that Luke Stewart could seek treatment in Mexico. As a result of the treatment, his tumour started to shrink and die. Support has come from the whole community, including £11,000 raised by Ladies Glitterball in Musselburgh. Luke and his family live in Tranent in East Lothian, and his strength and determination to live a full life have helped him to respond positively to the treatment This condition is incredibly rare, yet a second child, Alex Logan, who lives in my home town of Prestonpans in East Lothian—not five miles from Luke—has this year been diagnosed with DIPG. Again, the East Lothian community and the wider community are rallying round by supporting the Action for Alex campaign through the justgiving.com/crowdfunding/susan-logan-l page. Help and support have come from many places, including our local lad Josh Taylor, who on Saturday became the first professional fighter to halt Miguel Vázquez and retain his WBC silver super lightweight belt. Josh is supporting this cause along with Eric Bristow, not in a fight but in a darts match in December. The fighting spirit displayed by Josh Taylor, but also perhaps more, in their own special way, by Luke and Alex, makes me humbled and proud to represent East Lothian. DIPG remains a mystery, but children like Luke and Alex and their families cannot wait for a cure. The time has come to fund research into DIPG here and to bring hope to all children and families suffering as a result of this terrible condition.
I pay tribute to the speeches of the hon. Members for Edinburgh South (Ian Murray) and for East Lothian (Martin Whitfield). The House needed to hear about the bravery of Luke and Alex, and no one could fail to be moved by their courage and the courage of their families or by the commitment of the community in raising the much needed funding for their treatment. I thank both hon. Gentlemen for bringing those stories to life, and my thoughts go out to the brave boys and their families and friends. I agree with everyone who has spoken that research is crucial in the fight against cancer, and childhood cancers in particular. Nobody wants to hear the news that those families heard about their children, but the fact that they are approaching things with so much hope is quite inspirational, and I have the utmost respect for them To bring the House up to date with what the Department of Health is doing, research is absolutely critical, which is why the Department invests a billion pounds a year in health research through the National Institute for Health Research. The Department also works closely with a wide range of partners for research funding. Spending on cancer research specifically has risen to £137 million in this financial year, which is the largest NIHR spend in any disease area. However, the challenges of increasing research into brain tumours persist, and I wholeheartedly agree that that research is essential in order to improve treatment for sufferers and their families. The hon. Member for Edinburgh South referred to the Westminster Hall debate on brain tumours in 2016, and the Department has established a task and finish group on brain tumour research to investigate what more can be done. I am pleased that that report will be published before the end of the year. It has been slightly delayed—not because we are obfuscating, but because its impact can be increased by taking a little more time. I hope that that will reassure hon. Members The hon. Member for Edinburgh South and the hon. Member for Ilford North (Wes Streeting) both referred to the treatment in Mexico experienced by their constituents, and I acknowledge that that has come at great expense to the families and could not have happened without the generosity of the many people who have been inspired by the stories. I can tell the House that leading experts from Great Ormond Street and Alder Hey Children’s Hospital, as well as their colleagues from Europe and the USA, have reached out to the team in Mexico to better understand the treatment that is being given to patients. Without further data and discussion, it is not possible to say whether the exact treatment being offered in Mexico could be considered in the UK as part of a clinical trial, but I can assure the House that there is certainly an openness among UK experts to understand more about the treatment, which I hope will be welcomed.
I am grateful to the Minister for giving way on that point. One of the important functions that Great Ormond Street provided for Kaleigh Lau’s family was support when she was back in the UK. Immense pressures on Great Ormond Street at one point meant that a lack of access to beds and support led to a delay in her being admitted to the hospital. Will the Minister ask her officials to look at that particular issue? The nature of the condition and the time pressures—there is often a lack of time—make some of those delays even more stressful to the family. The Minister ought to probe and examine that issue.
I acknowledge the hon. Gentleman’s point, but the stress would be removed if we could actually investigate whether the treatment could be offered here, rather than have people travelling to Mexico. My priority will be to encourage discussions to enable that to happen Turning to some of the research that is happening at Great Ormond Street, which is the centre of excellence where we want childhood cancers to be tackled, research is being undertaken to develop T-cell immunotherapy delivery to tumours and selective therapies based on the molecular profiles of tumours. The research centre at University College London is also researching tumour markers and drug uptake. I am pleased to say that the NIHR clinical research network is supporting the NHS to deliver three clinical trials of new treatments for children with diffuse intrinsic pontine glioma. In the summer, Cancer Research UK announced its intention to fund up to two brain tumour centres of excellence to support multidisciplinary research, and the NIHR stands ready to provide full support to those new centres, together with other centres already funded by other charities, in delivering their research in the NHS. The working group is chaired by Professor Chris Whitty, the Department’s chief scientific adviser. The report is being finalised, and it should be ready before Christmas We know that early diagnosis is essential for all cancers if we are to provide the best treatment and support from the very start. I therefore welcome initiatives such as HeadSmart, which is working to increase awareness of the common signs and symptoms of brain tumours in babies, children and teenagers. The Department encourages the use of that initiative by professionals to signpost specialist advice, if needed, and the Department has promoted the awareness campaign with colleagues in NHS England, health visitors and school nurses The Government are also funding a radical upgrade of equipment to treat cancer, including £130 million to modernise radiotherapy across England. In April 2012 the Government announced a £250 million investment to build proton beam therapy facilities at the Christie Hospital in Manchester and at University College London Hospitals. The more precise targeting of radiotherapy afforded by this treatment means that higher doses can be delivered with fewer side effects and fewer long-term consequences, which is particularly important for paediatric patients We support the Less Survivable Cancers Taskforce, which also launched earlier this year. The taskforce aims to raise awareness of five cancers, including brain cancer, where survival rates have remained stubbornly poor for decades. The taskforce is also working to increase the number of clinical trials and treatments approved for those cancers as well as the level of research invested in them Despite the difficulties involved in researching new treatments for diffuse intrinsic pontine glioma, important studies are under way.
I am grateful to the Minister for giving us a fairly comprehensive answer, and indeed some hope that progress is being made on this issue. Will she pick up on the issue raised by Luke’s parents? They would like to meet her to discuss not just their experience but how Luke could perhaps help with some of that research. It would be great for her to hear directly from the parents so that she can get a full picture. It is not just about research and development; it is about their whole experience of being parents of a child with the disease.
I would be more than happy to meet Luke and his parents. As well as researching the symptoms and the possible treatments for this disease, we need to understand the experience that families go through, because support for families has to be part and parcel of the treatment. I would be delighted to hear from Luke’s parents to learn from their experiences We often look at these things in a very clinical way—it is clinical practice—but we are talking about human beings and we are talking about lives. There is no substitute for bringing home exactly what we are talking about when young children are suffering with such a pernicious disease We will build on the studies I have outlined, and we will ensure that the funding provided for research results in better outcomes for those who are suffering, particularly where they are children, but we should remember there is hope. We heard Luke’s story, and we heard that he is at school. He has lived longer than his initial prognosis, so we wish him well. We have much hope Here on the Front Bench next to the Under-Secretary of State for Work and Pensions, my hon. Friend the Member for Hexham (Guy Opperman), and looking at the hon. Member for Sheffield Central (Paul Blomfield), I am struck by the fact that both have lived through brain tumours and come out the other side. They are an inspiration, and they show that, with the right treatment, people can live despite having a potentially killer disease It is my job as a Minister, and it is the job of the Department of Health, to ensure that we leave no stone unturned in making sure that we get the best possible treatment for anyone who suffers from these conditions.
Here’s to Luke Question put and agreed to.