European Union (Withdrawal) Bill

Baroness Smith of Basildon Excerpts

Tuesday 30th January 2018 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, we are considering this legislation in unprecedented circumstances. Whatever one’s views on Brexit, this country has embarked on a process of fundamental constitutional change with deep and far-reaching consequences. Brexit is a process, not an event. It is not just a government process, but a parliamentary one that will involve at least 10 Acts of Parliament and around 1,000 statutory instruments, with numerous Statements, debates and committees examining the detail. Yet, at a time when the country really needs strong and stable government, we have instead consistent and persistent reports of a weak Prime Minister buffeted from one position to another as she tries to bring order to the warring factions in her Cabinet.

Before us we have a Bill that started as the great repeal Bill, then became just the repeal Bill, and is now the European Union (Withdrawal) Bill. None of them does what it says on the tin. A better title might have been the “EU (Transposition and Interpretation) Bill”. That is not just a quibble over semantics but a recognition of the importance and the technical nature of the legislation before us, and why we are so concerned that it should be fit for purpose.

Yesterday, our Constitution Committee published its report. We are grateful to it for doing so in time for today’s debate and the weeks of Committee ahead of us. I am sorry that the noble Baroness did not make more reference to the report.

While the principle of whether we leave the EU is, for many, ideological, the detail of the Bill is not. It is not about leaving or even just about how we leave the EU; it is also about how we maintain domestic legislation in the future. It will introduce a third category of legislation, in addition to primary and secondary, of retained law. That is the body of law that currently applies here in the UK through our membership of the EU, but has been introduced in different ways, and which the Government now seek to convert into domestic legislation. It is a relatively straightforward concept, but the scale and complexity is unprecedented.

Our Constitution Committee reports that while the Bill’s aims are valid, as drafted it is constitutionally unacceptable. However, amendments could address the deficiencies while maintaining the fundamental principles, particularly the sovereignty of Parliament. The Bill seeks to ensure that, following exit from the EU, there is legal continuity and certainty in our legislation. It seeks clarity in the application of laws on, for example, environmental protection, consumer protection, and rights at work.

Noble Lords are all grateful to the Constitution Committee for its pragmatic suggestions for amendments to achieve the objectives of the Bill. We all want to avoid this becoming a fiendishly complex process that weakens both parliamentary sovereignty and legal protections that our citizens rightly take as granted. During the passage of the Article 50 Bill, the Prime Minister constantly argued that she wanted a “clean Bill”, as if amendments somehow made legislation dirty and impure. Listening to the debates in the other place, and also the conciliatory comments from the noble Baroness the Leader and the noble Lord the Minister on TV at the weekend, I hope we have now moved on from such ridiculous notions and the accompanying sabre-rattling that we have seen before.

The Government have pledged to table amendments to address issues such as the devolution settlement and MPs across the Commons have said that this House can be helpful on unresolved issues. We have even seen rare harmony on the Conservative Benches as the former Attorney-General Dominic Grieve, the Father of the House of Commons, Ken Clarke, and the Brexiteer, Sir William Cash, all urged your Lordships’ House to deal with outstanding concerns, including the future role of judges in interpreting EU law. I welcome the compliment from Leader of the House of Commons, Andrea Leadsom, when she said last week that noble Lords,

“play a very important revising role, for which we are grateful and they have expertise that we in this House benefit from”.—[Official Report, Commons, 25/1/18; col. 414.]

We welcome that opportunity. However, before some get a bit carried away, I give a brief constitutional reminder that any amendments passed by this House provide a further opportunity for consideration by MPs, who have the final say. For those who criticise that role, I re-emphasise a point that I have made before. The process of Brexit is too important and complex to be left to those who have no doubt, because only doubt brings questioning, and it is only through questioning that we examine an issue enough to get the detail right.

Too often, the Government have put off tough decisions. For example, as we have heard in our questions, the financial services sector is crying out for the Government to publish a future partnership paper, to provide some certainty to allow for future planning. Yet none has been forthcoming and ministerial responses were complacent at best. With 19 months having passed since the referendum, it is unacceptable that the Government have not yet got a grip on the issues facing Northern Ireland, our Crown dependencies and our overseas territories.

We have not yet seen a credible way of solving the Northern Ireland border issue, given the Prime Minister’s flawed ideological position against a customs union. We still do not know the Government’s plans for the future of Gibraltar, and even yesterday the Minister side-stepped the question of a potential Spanish veto on its inclusion in the new UK-EU relationship. Even now, the Cabinet still has not had that essential discussion on our future trade relationship with the EU. These issues cannot just be popped into the “too difficult” box with the notion that, somehow, we just have to leave and it will be all right on the night. It is rare—this may never happen again—that I offer sympathy to the Chancellor of the Exchequer, Philip Hammond. But the public attacks on him from his own party, for stating a moderate view of how we manage future trade with the EU 27 countries, are absolutely shocking.

The time for slick soundbites to pacify extremists has long gone. Instead of vague superficial statements of a “global Britain”, “Brexit means Brexit” and now the appalling “buccaneering Brexit”, we have to deal with the reality and the nitty-gritty of the detail. That is the test for this Bill and the Government. I am grateful to the noble Baroness for her words about a new committee for dealing with the massive number of SIs and look forward to discussing that with her further. We called for such a committee and consider it essential. However, I have also raised with her and others the need to do a bit more. Given the timescale, and the volume of legislation, I have suggested that early drafts of SIs should be published for consultation, purely on accuracy, even before being brought to Parliament. There would be no delay, and it would provide an extra layer of inspection to ensure that the detail is correct.

I ought to say something about the amendment in the name of my noble friend Lord Adonis. A similar amendment was considered by your Lordships’ House when we debated the Article 50 Bill, and I suspect that we may have another at later stages of this Bill. Although a further referendum is not something I am attracted to at this stage, for a number of reasons, I really do not think that this is an appropriate amendment on Second Reading or that it fits into this Bill, given the nature of the issues before us. Should he put it to a vote tomorrow, I do not intend to vote.

This is not a Bill that would have been brought forward by a Labour Government, so I want to share the key, but not exhaustive, areas where we consider that changes are needed to ensure good governance and the maintenance of legislative protections for our citizens. The Bill must facilitate transitional arrangements on the same basic terms as now, including continuing our participation in both the single market and customs union, and the legal basis and regulatory alignment that underpins them. We should recognise that organisations as diverse as the CBI and the TUC are both urging the Government on this. The Bill needs to ensure that key workplace, consumer and environmental protections cannot be diminished without proper parliamentary scrutiny and process. Despite great interest in Tudor history, the use of Henry VIII powers is excessive. I hope the Government recognise that they must scale back on the scope of such unprecedented and sweeping delegated powers being granted to Ministers and safeguard parliamentary democracy. The legitimate concerns of the devolved Administrations regarding powers repatriated from Brussels must be addressed and we look forward to seeing the Government’s amendments in Committee.

We certainly would not have excluded the European Charter of Fundamental Rights. It is worth noting that the Brexit Secretary himself relied on this when, in 2015, he took the Prime Minister to court. The Government’s unnecessary ideological exception causes confusion and uncertainty and we look forward to hearing from my noble and learned friend Lord Goldsmith on this issue. Despite the welcome addition of Dominic Grieve’s amendment requiring an additional statute, the Bill must set out how Parliament will play a truly meaningful role in the process, including if we face the most catastrophic of possible outcomes, that of no deal. After my noble friend Lady Hayter speaks tomorrow evening, I sincerely hope the Minister will be able to confirm that he is not under orders to return a so-called “clean” Bill with no amendments other than his to the other place.

Like many others in your Lordships’ House, I have carried that ministerial folder with its pages and pages of briefing, the questions and answers, the lines to take and notes on elephant traps. But, all too often, the first line of advice on any amendment says, in capital letters and bold print at the top of the page: “RESIST”. We have all been there. I have confidence that the Minister will want to listen to the House and to different points of view. I urge him to see this as a real opportunity for the Government to avail themselves—as Andrea Leadsom said—of the genuine expertise that is on offer.

I conclude with a final appeal to the Government for some certainty: certainty for individuals whose everyday lives interact with the hard-won EU rights and protections that we fought for, whether when at work, buying goods or enjoying this country’s open spaces; certainty for businesses that fear, without confirmation of a transitional period on current terms, falling off a regulatory cliff edge in just over a year; and certainty for Parliament as to its role in this process and for the judges who will have to interpret the law that this Bill enshrines.