This has been a fascinating debate so far, and I am delighted that a little bird tells me that the Chief Whip and the Leader of the House are conspiring to try to make arrangements for it to be extended to midnight on the second day.
One of the most fascinating aspects of the debate has been the appearance of logic in what was said by not only Yvette Cooper, but the Chair of the Select Committee, Hilary Benn, and the shadow Secretary of State, Keir Starmer. What they said sounded forensic and logical. The structure of their argument, as I think other Members will recognise, is as follows: “We do not like clause 9, we do not like clause 17 and we do not like schedule 7, and therefore, instead of waiting to see whether they will change in Committee before voting on Third Reading, we will reject the Bill on Second Reading.”
That is not what logicians call logic; it is what they call a non sequitur, which prompts the question, “Why the non sequitur?” The answer is that the three people whom I have just mentioned are among the cleverest people in Parliament. They understand logic perfectly well, and they understand what a non sequitur is. The reason they are engaging in such an argument is that they hope to make some combination of trouble for the Government, or for the Brexit process. Conservative Members should pay not the slightest attention to such “un-arguments” and should get on with the business of examining the Bill as it is.
Having said that, I rather agree—in fact, I strongly agree—with what was said by my right hon. Friend Mr Duncan Smith, and, indeed, with some of what was said by the former Chancellor of the Exchequer, my right hon. and learned Friend Mr Clarke, and my right hon. Friend Anna Soubry. There is a lacuna here, and we do need to look at those clauses again. I suspect that much of the remedy will lie in the use of a combination of the Joint Committee on Statutory Instruments as the ultimate body and, for instance, the Social Security Advisory Committee to do the detailed work on what will probably be near on 1,000 technical statutory instruments before the House comes to consider the really serious matters that will need to be dealt with in one way or another.
There is, however, one point that I want to make in advance of the Committee stage in the hope that the Government will consider it between now and then. One fundamental issue has not been addressed in the debate so far. It relates to what we used to call the European Court of Justice or the Court of Justice of the European Union. Members who have read clause 6 will have noticed that, as the Secretary of State pointed out, subsection (4) states that
“the Supreme Court is not bound by any retained EU case law”.
That seems to be a fairly important statement, but it is not quite as important as one might think, because the Supreme Court is not bound by itself either: it is the kind of court that can always depart. So I think that it is more of a ritual utterance than anything else.
According to clause 6(3),
“Any question as to the validity, meaning or effect of any retained EU law is to be decided…in accordance with any retained case law and any retained general principles of EU law”.
In case anyone has any doubt about whether that might be just a drafting error, I should point out that the Government’s own document describing the Bill states:
“Questions on the meaning of retained EU law will be determined by domestic courts in accordance with preexit CJEU case law.”
In other words, those parts of the Bill, as currently drafted, enshrine the CJEU, with its expansionist teleological jurisprudence, as the basis for deciding what the law of the land is.