The withdrawal treaty must be overseen by UK courts not by the ECJ

David Davis made a statement yesterdain the House of Commons on the fifth round of negotiations with the European Union. During the debate Bill Cash made the following intervention: 

David Davis The Secretary of State for Exiting the European Union: With permission, Mr Speaker, I will update the House on the fifth round of negotiations with the European Union. In view of the fact that the October European Council is this week, I will also review the progress of the five negotiation rounds since June.

While the negotiations have been tough at times, both Michel Barnier and I have acknowledged the new dynamic created by the Prime Minister’s speech in Florence. That momentum was maintained during October, and both negotiating teams have continued to work constructively together. Since June, we have steadily developed our shared political objectives. Nevertheless, there is still some way to go to secure our new partnership, but I am confident that we are on the right path.

I will now take the House through each of the negotiating issues in turn. On citizens’ rights, we have made further progress towards giving British citizens in the EU, and EU27 citizens in the UK, the greatest possible legal certainty about the future. Our legal orders will be distinct and different in the future. Last week, we explored how we will ensure that the rights we agree now will be enforced in a fair and equivalent way. We also explored ways in which we can fully implement the withdrawal treaty into UK law, giving confidence to European citizens living in the UK that they will be able to directly enforce their rights, as set out in the agreement, in UK courts.

The two sides also discussed ways of ensuring the consistent interpretation of our agreement. Although we have not yet arrived at single model to achieve that, we have explored a number of options. We should also not lose sight of the fact that we have made significant progress in that area since June. We have reached agreement on the criteria for residence rights, the right to work and to own a business, social security rights, rights for current family members, reciprocal healthcare rights, the rights of frontier workers, and the fact that the process for securing settled status in the UK will be streamlined and low cost. However, there are of course still some issues outstanding for both sides, including the rights: to continue to enjoy the recognition of professional qualifications; to vote in local elections; to onward movement as a UK citizen already resident in the EU27 and to return; to bring in future family members; and to export a range of benefits. In many of those areas, it is a straightforward statement of fact that our proposals go further and provide more certainty than those of the Commission, but both sides are trying to find pragmatic solutions. In the fourth round, we offered the guaranteed right of return for settled citizens in the UK in exchange for onward movement rights for British citizens currently living in the EU. We look forward to hearing the Commission’s response to that offer.

I recognise that there has been some concern regarding the new system that European citizens will have to use to gain settled status in the UK. While there will be a registration process, I confirmed last week that the administration process will be completely new, streamlined and, importantly, low cost. Furthermore, any EU citizen in the UK already in possession of a permanent residence card will be able to exchange it for settled status in a simple way and will not need to go through the full application process again. The tests associated with the process will be agreed and set out in the withdrawal agreement. As a result of our productive discussions, the Commission is also able to offer in return similar guarantees to British citizens in the EU. Those clarifications from both sides have helped to build further confidence.

This round also saw further detailed discussions on Northern Ireland and Ireland. In a significant step forward, we have developed joint principles on the continuation of the common travel area and associated rights. The joint principles will fully preserve the rights of UK and Irish nationals to live, work and study across these islands. They will also protect the associated rights to public services and social security. To provide legal certainty, the principles recognise that the withdrawal agreement should formally acknowledge that the UK and Ireland will continue to be able to uphold and develop bilateral arrangements.

Our teams have also mapped out areas of co-operation that function on a north-south basis, and we have started the detailed work to ensure that that continues once the UK has left the EU. We also agreed a set of critical guiding principles to protect the Belfast or Good Friday agreement in all its dimensions, and we are working on the necessary steps to make that a reality. Throughout the process, we have reaffirmed our commitment to the rights of the people of Northern Ireland to choose to be British or Irish, or both. I have set out before our shared determination to tackle the unique circumstances of Northern Ireland by focusing on creative solutions, and we have begun to do so. But we cannot fully resolve the issues without also addressing our future relationship. As the Prime Minister said in her statement to the House last week:

“We owe it to the people of Northern Ireland—and indeed to everyone on the island of Ireland—to get this right.”—[Official Report, 9 October 2017;
Vol. 629, c. 43.]

On the financial settlement, discussions continued in the spirit fostered by the Prime Minister’s significant statements in her Florence speech. The Prime Minister reassured our European partners that they will not need to pay more or receive less over the remainder of the current budget plan as a result of our decision to leave. She reiterated that the UK will honour the commitments we have made during the period of our membership. Off the back of that, we agreed in the September round to undertake a rigorous examination of the technical detail on which we needed to reach a shared view. That work has continued. It has not been a process of agreeing specific commitments—we have been clear that that can come only later—but it is an important step, so that we will be able to reach a political agreement when the time comes.

Finally, on separation issues, we have continued to work through the detail on a range of issues, particularly areas relating purely to our withdrawal, such as nuclear safeguards, civil judicial co-operation, and privileges and immunities. While we have made good progress, the remaining issues are dependent on discussions about our future partnership. We are ready and well prepared to start those discussions.

Our aim remains to provide as much certainty as possible to businesses and citizens on both sides. I have made no secret of the fact that to fully provide that certainty we must be able to talk about the future. We all must recognise that we are reaching the limits of what we can achieve without considering our future relationship. The Prime Minister’s speech in Florence set out the scale of our ambition for the new partnership with the European Union. She also laid out our case for a simple, clear and time-limited period of implementation on current terms. At the European Council later this week, I hope the leaders of the EU27 will recognise the progress made and provide Michel Barnier with the mandate to build on the momentum and spirit of co-operation we now have. Doing so will be the best way of allowing us to achieve our joint objectives and move towards a deal that works for both the UK and the EU.

There has been much discussion of what will constitute sufficient progress. Let me be clear that sufficient progress, and the sequencing of negotiations, has always been a construct of the EU, not the UK. Negotiations require both parties not just to engage constructively, but to develop their positions in advance. For the UK’s part, I have always been clear that we will be conducting these negotiations in a constructive and responsible way. We have been entirely reasonable. The work of our teams and the substantial progress that we have made over recent months proves that we are doing just that, and we are ready to move these negotiations on. I commend this statement to the House.

Bill Cash Conservative, Stone: My right hon. Friend has said that in the discussions we have also explored ways in which we can fully implement the withdrawal treaty in UK law. Does that suggest he has in mind legislative enactment of the withdrawal treaty? When he talks about the role of the UK courts, does he mean that the enactment will be overseen by our courts, and not by the European Court of Justice?

David Davis: A range of models are available for how we bring the withdrawal treaty into British law—British law, not European law—and the key criterion I am applying is that it gives certainty to those EU27 citizens who are here now that their rights will be preserved. It will, of course, be adjudicated by British courts.

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