Geoffrey Cox puts the constitutional implications of the EU Withdrawal Bill to the House

15th November 2017

Geoffrey Cox speaks in the House of Commons on the provisions to preserve the European Union's laws at the time of Britain's exit from the EU.

I will try to be brief, Mrs Laing. I wish to address some of the constitutional implications of this extraordinarily important Bill. I suppose that this is the most important constitutional Bill that this House has considered in many years. It is difficult to think of a Bill as important as this one, certainly since 1972.

This is not the first time that this task has been accomplished by sovereign nations. Provisions such as clauses 1, 2, 3 and 4 are to be found, in a simpler form, in the constitutions of a number of Commonwealth countries to which this country granted independence after the second world war. Invariably, those constitutions contained provisions that seek to preserve the laws as at the date that those nations became independent.

Now, they are simpler provisions because the complexity of our laws and the European Union’s laws, with the legal federalism that the EU implies, is much higher. But the essential task that those nations faced was not dissimilar from that which we face. When they became independent and the legal source of their laws changed from being the Queen in Parliament to a constitution, the task that the courts faced was not dissimilar in that, while retaining the body of the law that had existed up to the date of independence, they then became free to interpret those provisions and principles in the light of the new constitutional fact of their independence. And that will be the case for our own Supreme Court. The Bill intends to preserve continuity up to the point of exit day, and to allow the Supreme Court, under clause 6, to diverge where it thinks appropriate and to develop its own jurisprudence over successive years.

I have sat and listened throughout the debates yesterday and today, and it seems to me that we have done something of an injustice to the draftsmen of the Bill. Some very careful thinking has gone into the way in which the provisions have been balanced. I am not saying to Government Front Benchers that it is not possible to tighten some of those provisions and to provide greater safeguards, particularly in respect of the width of the powers permitted under clauses 7 and 17. But I can quite understand the policy and principle behind those provisions in the manner in which they are thus expressed.

Clause 4—we are speaking to the question of whether clause 4 stands part—is obviously an important provision, which seeks to mirror the wording of section 2(1) of the European Communities Act 1972. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) asked what the word “allowed” meant in clause 4(1)(b) of the Bill. I would propose that, under that clause, the word means to admit, acknowledge or accept into our law. The word “allow” does not only mean to permit. It also carries the connotation of acceptance or admission; it certainly did in 1972. It seems obvious what clause 4 is intended to achieve: to ensure that a law that was enforced, available, recognised and allowed continues beyond exit day, in so far as that has not already been provided for by clauses 2 and 3.

I suggest to the Committee that the provisions introduced by clauses 2 to 4 are sensible, coherent and logical measures. I am not saying to the Government Front Bench that they cannot be improved, but I certainly understand their import. It is under section 2(1) of the European Communities Act that all the case law, the general principles and the decisions of the European Court of Justice on the interpretation of treaty provisions become admissible and admitted into our law. I take it that clause 4 is intended to achieve precisely that.

Although I accept the need for, perhaps, some tightening, I do not accept that the Bill is as wanting or as deficient as has been suggested. For example, I do not think that clause 7, which we will come to debate at a later stage, is as broad an invitation to the Executive to abuse their discretion as some right hon. and hon. Members have suggested. It is governed by three critical factors. The first is the fact that there has to be a deficiency caused by the withdrawal from the European Union. Now, if the power of the Government is limited by the fact that they have to be curing a deficiency caused by the withdrawal from the EU, it is difficult to see how they thereby gain a licence to interfere with fundamental rights or rights that have been acquired over many years in the decision making of the European Court of Justice.

My general point to those on the Front Bench is this: some parts of the Bill would benefit from some tightening, and perhaps some expression of the limitations on the discretion that is being conferred on the Executive, but I do not accept—I say this to my right hon. and hon. Friends—some of the more exaggerated and, frankly, hysterical analyses of the Bill. It seems to be a reasonably well-judged, measured and balanced set of provisions. Yes, it allows a lot of legal points to be taken, but, frankly, when a legal order is being changed to the extent that this one is, it is not surprising if lawyers are likely to have a field day.

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