Dominic Raab and Oliver Robbins gave evidence to the European Scrutiny Committee on 5 September, as part of its inquiry on EU Withdrawal.
During the evidence session Sir William Cash made the following questions:
Chair: Welcome, gentlemen. At the outset, I want to make a few observations. We had considerable difficulty in securing Mr Robbins to give evidence, which is unacceptable to a Select Committee. We first put in our request on 28 February and invited him to come, but made no progress. I then raised the matter with the Prime Minister at Prime Minister’s questions and then pressed him again for his appearance, which the Prime Minister declined. We had no option but to issue a summons to secure a date, which is the basis on which he now appears, and the Prime Minister, I am glad to say, has changed her mind on his giving evidence.
The Secretary of State took up his post only on 9 July, after Chequers, and therefore there will be questions that we will need to ask Mr Robbins alone. He has been engaged in negotiations as the Prime Minister’s adviser on Europe since, I think, 2 September 2017. Is that correct?
Chair: Thank you. The Secretary of State wrote to me on 23 August, referring to the Prime Minister’s written ministerial statement of 24 July, in which she stated that she was in charge of the negotiations and that he as Secretary of State deputises and answers for her. I am glad to note that the Secretary of State recognises, as he states in his letter to us, that the long-standing role of this Committee in holding the Government to account is well understood by the Government.
I will now start with the first question of what will possibly be a two-hour session. Mr Robbins, I first come to you, as the Prime Minister’s Europe adviser, Permanent Secretary and architect of Chequers, which was bounced on the Cabinet. Mr Barnier, it is reported by the Frankfurter Allgemeine Zeitung, the German newspaper, has indicated that the Chequers proposals were insane and unjustifiably breaking European law, and illegal in that context. He refers clearly to such matters as the common rulebook.
It is clearly understood, of course, that they do fragment the legal principles of the single market under the EU treaties. There is also today’s criticism from the former Governor of the Bank of England. Furthermore, the common rulebook, and changes to it, will be decided by the other 27 EU countries behind closed doors, and without even a transcript of the proceedings. Would you, therefore, advise the Prime Minister to put Chequers out of its misery, as it is now effectively dead and satisfies virtually no one?
Oliver Robbins: Thank you, Chairman. No, I wouldn’t. That is a matter for Ministers collectively. The proposals that were published in the White Paper before the summer are the Government’s collective position. The Secretary of State and I have been prosecuting that position with the European Commission and other interlocutors since his appointment and since the publication of the White Paper. Respectfully, we disagree with Mr Barnier. The Government’s view is that the proposals encapsulated in the White Paper are a credible, sensible balance of trying to achieve something that respects the autonomy of the EU and the sovereignty of the UK and provides for a pragmatic future relationship with the EU.
Chair: I ought just to add that that idea—that you can respect the autonomy of the EU and the sovereignty of the UK—seems to me to be completely impossible, because you can’t achieve both of those things at the same time, but I’ll pass on to the next question I want to ask you.
Dominic Raab: Mr Chairman, could I just supplement that answer, because ultimately you are asking a political question as well as a technical one? I just say this gently. I think, in relation to the interview that you have cited, you have missed out some of the good bits, and I know you wouldn’t want to be selective or cherry-pick from the EU in the same way that they complain about us. Actually, Mr Barnier, in the same interview, said that the Withdrawal Agreement is 80% negotiated: we are “close to our goal”. In relation to the security aspects, he said there is a great deal of agreement on foreign and security policy as well as on internal security. And, of course, on 27 August he said: “We are prepared to offer Britain a partnership such as there never has been with any other third country.” Of course, you are quite right to cite the bits that he has grumbled about, but I suspect, if you looked at negotiations over the last 200 years involving the UK and otherwise, there would be grumbles from different interlocutors at different stages of the negotiations, without prejudice to the final result. I hope that’s fair.
Chair: I have in mind the Munich Agreement, for example, and look where that ended up. But anyway, as far as your point is concerned, of course nothing is agreed until everything is agreed. That means that we have to take the package as a whole, and he has made these remarks, which are pretty lethal in their own way.
I now want to move on to the next question I would like to ask Mr Robbins, and do come in, Mr Raab, if you would like to, on this one, because there is a political element to it as well. Astonishingly, the new White Paper, which was published on 12 July and sets out the legislative proposals for implementing the Withdrawal Agreement, compromises and contradicts the repeal of the European Communities Act 1972 as of exit day, 29 March 2019. Parliament only enacted that repeal 16 days before the publication of that White Paper. Why are the Government now seeking to keep the 1972 Act alive at all, and what guarantee is there of a total repeal of that Act? And how long do the Government intend the common rulebook to continue, with our being rule-takers from the EU27 and from behind closed doors? You go first, Mr Robbins, and then if Mr Raab would like to come in, he can do so, with pleasure.
Oliver Robbins: Certainly. I think what you are referring to, Chairman, is that the Withdrawal Agreement, if things go according to plan—as the Secretary of State has said, the Withdrawal Agreement that we hope to conclude later this autumn will provide for an implementation period, as the Government has sought since last September, and that implementation period will provide for us to continue to trade on exactly current terms. That is the context, the technical context, for the commitments the Government has made in respect of the legislation.
Chair: But the withdrawal Act quite clearly states that the repeal of the 1972 Act takes effect on exit day—namely, 29 March 2019. That’s the law of the land. It doesn’t say anything in there about implementation periods or any extension of the period—for example, beyond 30 December 2020. So I just want to get that down in hard reality, as far as you’re concerned. What do you make of that? We pass an Act, then we come forward with new proposals for a new Act that are inconsistent with the Act that has already been passed.
Oliver Robbins: Chairman, I don’t think—with respect—they are inconsistent. The Government remains completely committed to leaving the European Union on 29 March next year. The draft Withdrawal Agreement that we are working on with the European Union, as has been Government policy for some time, seeks to extend the current basis of our trading relationship for 21 months beyond that date. I think that’s what the Withdrawal Agreement Bill White Paper was attempting to explain.
Chair: Mr Raab?
Dominic Raab: First of all, Mr Chairman, I think, as a matter of constitutional principle, that you should give me a chance to answer all the political questions first—
Chair: I’m giving you a chance.
Dominic Raab: But not first, because actually—
Chair: You weren’t in on the act when all this was decided.
Dominic Raab: Well, I was, because I was part of the Bill team taking the EU (Withdrawal) Bill through the House of Commons, so I can give you two reassurances, one in relation—
Chair: So a very minor role.
Dominic Raab: Who knows? I’m happy to perform in a minor role or in a more significant role and to make whatever modest contribution I can, but what I can do is give you the reassurance that, yes, there is a savings clause in relation to the implementation period and the way it applies to the EU (Withdrawal) Act. And of course, when we passed the EU (Withdrawal) Act—and no one will know better than you, because you participated in so many of those debates—we envisaged that it was without prejudice to the negotiations that we were making in relation to both the Withdrawal Agreement and the implementation period. That was a very clear basis on which that legislation was passed, and I remember talking to it myself during lengthy sessions.
Chair: But an Act is an Act. The kind of reservations that you are putting forward do not apply to it. It just doesn’t work like that. An Act is an Act; the law of the land says what it says. But I am not going to pursue that one now. I have made my point, you have tried to reply to it and we will leave it at that—okay?
Dominic Raab: Fair do’s.
Chair: I would just like to ask Mr Robbins a question, because you would not have been involved in this, Mr Raab, I think: did either the Prime Minister or, for that matter, any other person within the framework of the Government make available to any of the EU institutions, or any of its officers, the provisions that were contained in the Chequers proposals before 6 July?
Oliver Robbins: No.
Chair: Absolutely nothing at all, in any shape or form?
Oliver Robbins: If you are asking about the paperwork that went to Cabinet, the White Paper, of course those are internal Government documents. What Ministers and officials have been doing especially hard since the Mansion House speech that the Prime Minister delivered is exploring all the options for achieving those objectives.
Chair: You haven’t answered my question. Did they go to any person inside the EU institutions or any of the member states in any shape or form?
Oliver Robbins: Advice to Ministers is advice to Ministers; it is not shared with the EU.
Chair: No; advice to the EU as to what it is we are proposing to do is quite a separate question, and I’d like an answer to that, please.
Oliver Robbins: I am trying to answer it, Chairman, because of course, as the Secretary of State has said, we are in a negotiation. Ministers had set forward their objectives. The Prime Minister, in a collectively agreed speech at Mansion House, had put her objectives forward, and from her down, her team of Ministers and officials have been sounding out how we might achieve those objectives. So what I don’t want to do is to say to you, no idea that eventually appeared in the White Paper had ever been mentioned to somebody on the other side of this negotiation before, because it wouldn’t be good advice to Ministers if we go from no indication whatsoever as to whether ideas were acceptable.
Chair: Doesn’t that eventually take us into the influence of the ECJ? You will have read the papers written by Martin Howe—I am sure you have studied them very carefully—and also what happens in the EFTA Court, if one takes a comparison with that, which is quite clear. I met the previous President of that Court, and we had some correspondence with him. He has written a book in which he makes quite clear the extent to which the “golden thread”, as he puts it, of EU jurisdiction effectively influences and effects the outcome of the decisions taken.
You seem to be against that, from what you are saying now, so I therefore ask you again to repeat that, in the absence of our going down that kind of route, you would be happy for the ultimate decisions to be taken by arbitration as a matter of fact and as a matter of law, and that that should be taken by them and not by, or influenced by, the European Court. Is that correct?
Dominic Raab: First of all, you have made a powerful argument as to why we should not go down the EEA-EFTA route. That is why we have chosen and proposed, and I think are making good headway on with our European friends, a bespoke process.
In those areas in which EU principles apply—this was a political decision that we have made at a strategic level; it was before my time but I agree with and accept it—on, for example, citizens’ rights, although there may be other areas, you want to make sure that you have a consistent approach so that we don’t find EU nationals here benefiting from something that UK expats abroad would not benefit from. There will be other examples. We want consistent, uniform interpretation. One of the worst things about general international law or European law is if it becomes haphazard in its application to either side.
That aside, for the overwhelming bulk of areas in which we continue to co-operate, beyond the implementation period, but particularly under our future relationship beyond the separation, I think we will have a clearly independent mechanism applying the future relationship as an international treaty. There will be arbitrators from both sides, but they will do it in a way that is based on the law predicated in those agreements and is independent from the ECJ. That is what a balanced and effective approach looks like.
Actually, our proposals and the traction that we have got on arbitration has been one of the big unsung victories—well, it is not a victory yet, because we haven’t done the deal—but we have won the argument around that in a way that I don’t think has perhaps been fully appreciated. To come back to Mr Jones’s point, I think that is one of the areas where we have actually done a good job as a team of making the case for a bespoke approach to dispute resolution.
Chair: Of course, making the case is not necessarily the same as getting the European Union to accept it, but let’s park that one for the moment.
Dominic Raab: Sure.
Chair: I ought to add that we issued a report on 20 March in which we criticised the Government for not being sufficiently robust—effectively, being far too supplicating to the EU and effectively, in fact, giving in to them and actually always asking them what they were prepared to put up with. That is also part of what Mr Jones has raised and also Kate Hoey. It is a really important question.
We have been very critical, given the fact that we left the European Union under an Act of Parliament, the withdrawal Act, by a decision that was taken by the whole of the House of Commons and the House of Lords—by Parliament as a whole. We took the decision in the light of the instructions from the British people—an Act of Parliament—and we have no business whatever compromising the position of the people of Northern Ireland or the people of the United Kingdom in making any kind of concessions on the question of the constitutional integrity of the United Kingdom. I am sure both of you would agree with that, would you not?
Dominic Raab: Absolutely. Not only is that the Prime Minister’s position, but I think you are better off judging Governments by what they do rather than just what they say. Although our overriding priority is to strive for the deal that we want, expect and think is in both sides’ mutual interest, we are also doing patient, assiduous, painstaking work, some of it behind closed doors, but increasingly with a public-engaging focus, on the “no deal” scenario.
People on the other side of the debate will criticise us for that, but we have made it clear that no deal is better than a bad deal. We want the optimum solution—that is what we are striving for—but we are doing the work to ensure that although, yes, there will be risks if we leave with no deal, we can avoid, mitigate or manage them. I hope that that at least gives you and your Committee, Mr Chairman, some degree of reassurance.
Dominic Raab: There are different ways of doing it, and we have not got agreement on that yet, but it could be by fixed period, an agreement of the parties, the possibility of a sunset, a procedural trigger—there are all sorts of ways it can end. In law, I am not worried about that because there is enough malleability. The question is about the political bridge between the two sides.
Chair: It was pretty stupid, wasn’t it?
Dominic Raab: What—to agree it in December?
Dominic Raab: I think our confidence—it was before my time, but from looking at it and discussing it with members of the Government at the time—was that we would make sufficient progress, get on to the future relationship and be able to resolve this issue. That remains our view.
Chair: We will. On the question of the Court of Justice, the Government’s proposal regarding the ending of direct jurisdiction means that in practice it will fail to remove the very significant influence of this Court even when we do not even have a judge on that Court itself. Now you are very familiar, as a lawyer yourself, as I am, with Martin Howe’s work on all this, and I just wanted to get a sense from you as to whether or not you are happy with this situation; because section 3 of the European Communities Act places an obligation on us to accept the European Court’s decisions, including constitutional assertions of supremacy over our constitutional arrangements, as with other member states. I just want to get from you a clear answer as to whether or not you feel that the fact that you are claiming that there will not be any direct jurisdiction really is a distinction without a difference, because in practice we are going to end up accepting the binding interpretation of the European Court’s rules, through the mechanisms that have been created.
Dominic Raab: No. I think it is a distinction with a fundamental difference, in that it is true to say that where we agree co-operative arrangements or on citizens’ rights there is scope for references so that we have commonality of interpretation and consistency of interpretation. I can think of lots of reasons for the British national interest why we would want to maintain that—for example, on the common interpretation of the protections for citizens’ rights. That is different, in terms of clarity around points of interpretation, from saying that the ECJ would have jurisdiction to decide disputes over the United Kingdom, both in relation to the checks in place, any references from the UK courts or the UK courts taking due regard of any case law, and right the way across the arbitral mechanism that we have described, the detail of which is set out very clearly in the White Paper. That distinction is held very clearly and firmly. As I said to you before, I think it is a balanced, sensible approach. It takes care of all the equities of those who have been concerned about the role of the European Court, while making sure that we have a sensible, practical approach to consistent rules where we choose, to make sure that we are bound by them.
It has to be said that in terms of the overall scope of law-making and regulatory application in the UK, it would be a massive diminution in the scope of any CJEU influence. On that point I respectfully disagree with Mr Howe; I think it is an important distinction with a very big difference.
Chair: Well, we will follow this one up, so let’s not flog it to death right now. As far as I am concerned, you will have quite a few further questions to answer on that later.
Dominic Raab: I’ll look forward to it.
Chair: On the question of arbitration, deciding whether an EU rule is equivalent to an UK rule will require that rule to be interpreted as an EU rule. From what you are hearing, will the EU side accept that this can be done by the arbitration panel that you have settled on as your proposal?
Dominic Raab: I would need to be a bit careful about saying that the EU has signed up to things when we have not yet formally agreed them, but what I can say—what I have tried to convey is a balanced approach—is that it is something we are making good progress on, and I am confident that it not only respects the democratic prerogatives that you, Mr Chairman, and I want to see returned to this country, but also respects the autonomy of the EU order.
Chair: Okay. On the question of explanatory memorandums on the rulebook changes that may be proposed by the EU, which are very much part of our scrutiny process, why can’t you supply these to Parliament as soon as the Government are notified of them, to allow time for proper scrutiny and allow Parliament to give its views on the merits of the changes at an early stage? This is going to become a very contentious issue for us. I want a very clear answer to that, because we are going to follow this one right through.
Dominic Raab: If you can write to me or I can follow up, I will give you a detailed answer. I would need to check to make sure that my understanding is accurate, as I think it is.
Chair: The parliamentary lock is more apparent than real, isn’t it? I have been on this Committee 33 years, and never in that 33 years have I ever come across a single proposal that has come from the EU to be overturned in the Standing Committee—actually, it was once, but that was a mistake by the Whips. It basically just does not happen. The idea that we will enter into international obligations and then it will be offered to us that we can have a veto or a parliamentary lock is, to say the least, improbable in the light of past experience. It just has never happened. So what is this parliamentary lock?
By the way, the Prime Minister wrote a pamphlet in 2007, which I encourage you to read, in which she said that she thought that the EU scrutiny process in terms of parliamentary sovereignty was basically a fiction. I think she will be hoist by her own petard on this one if she persists in the idea that the parliamentary lock will be effective. If it really is a veto and we really will have the mechanisms, and the Whips are going to be told to get lost and that they will not be allowed to tell members of Committees that they cannot make up their own mind about these things, and we are going to have free votes on the floor of the House of Commons and all that, let me hear you say that, please.
Dominic Raab: I think first of all—
Chair: We get it, by the way.
Dominic Raab: What you are talking about has to do with the scrutiny arrangements that this House has and whether they will need to be improved or innovated as we leave the EU, based on the deal that we do, and also, fundamentally, with the decision-making process of individual Members of Parliament. That is not a decision for the Government. That is really—
Chair: That, Secretary of State, as you well know, is a pretty disingenuous remark, because for practical purposes—we have been through this for God knows how long—the bottom line is that when the Whips decide, on the instructions of the Government, to press on with something that is an international obligation, the threat of consequences, as it is put, is a threat of consequences not just in terms of the outcome as a matter of law, practice or policy, but for the Members of Parliament if they do not do what they are damn well told.
Dominic Raab: I certainly think it is correct to say that, in relation to a parliamentary lock, we want to make sure that there would be consequences if we did exercise it in a way that vetoed a rulebook that we had signed up to. That rulebook is relatively static—
Chair: It has all been decided by the EU behind closed doors—by the 27 other member states. We are not even there. It is crazy.
Dominic Raab: I thought this was a session where you would ask questions and I would give answers, in which case, I am happy to do so.
Chair: Yes, but I am asking a question that is rhetorical, and I am sure you can answer it.
Dominic Raab: I am happy to sit here silently and acquiesce in your rhetorical questions. Actually, since 2010, there has been a whole range of intense debates on the EU, and scrutiny. As a Back Bencher, I voted against EU matters. I think you are underestimating the will and the vim and vigour of MPs in this House, but of course Whips try to conduct the business in the usual way. That is what the separation of powers is all about.
Chair: Just to go back to the first principles, which we touched on just now, Parliament, by a sovereign Act of Parliament, passed an Act in the House of Commons, six to one, to transfer the decision from Parliament to the British people. They made the decision. Is that where the Government stand, and is that how we are going to remain as far as the question of any second referendum is concerned?
Dominic Raab: Absolutely.
Chair: Right. Thank you very much for coming. Has this turned out to be a holy grail or a poisoned chalice?
Dominic Raab: Oh, I’m not sure I would describe it in either way. It is a great challenge, but one we should rise to.
Chair: Thank you very much.