European Union (Withdrawal) Bill

Debate between Lord Clarke of Nottingham and Pat McFadden

2nd reading: House of Commons
Monday 11th September 2017 Commons Chamber

[Mr Pat McFadden (Wolverhampton South East) (Lab)]

The Bill attempts to incorporate into domestic legislation the body of European Union law that has built up in the 44 years since we joined the EU. The stated purpose is to provide the country with continuity and certainty on what our statute book will contain on the day when we leave. Yet the purpose of leaving the EU is to depart from the laws incorporated by the Bill, otherwise there would be no point. So the legal certainty that the Bill aims for can last no longer than day one itself.

Leading leave campaigners have attempted to assuage such fears by pretending that they want to change nothing—not labour laws, not environmental protections, and not consumer protections. Those who have been the most vociferous opponents of any regulation that has stemmed from the EU, including members of the Cabinet who have attacked its laws and protections, such as those for people at work, now profess to agree to all the regulation that they previously detested. As we have come to expect in the pattern since the referendum, any attempt to ask questions about the Bill has been met with the usual accusations of betraying the public and denying the referendum result. Our democracy deserves better than that. If the proposals cannot stand scrutiny and questioning, the proposals are at fault, not those doing the questioning and trying to apply scrutiny.

Let us look at the content of the Bill. Most attention has been focused on the delegated powers provisions set out in clauses 7, 8, 9 and 17, and on the scrutiny provisions set out in schedule 7. In simple terms, those are the powers to amend the law without the usual legislative process of full debate. For example, clause 7 states that a Minister

“may by regulations make such provision as the Minister considers appropriate”,

and clause 9 states:

“Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act).”

Up until last week, the cornerstone of the Government’s defence of those proposed powers was the claim they were supported by the House of Lords Constitution Committee. Indeed, last Wednesday, the day before this debate began, the Prime Minister told the House that the Government’s approach

“has been endorsed by the House of Lords Constitution Committee.”—[Official Report, 6 September 2017; Vol. 628, c. 148.]

Let us look at what the Committee actually said in last week’s report. It stated:

“The executive powers conferred by the Bill are unprecedented and extraordinary and raise fundamental constitutional questions about the separation of powers between Parliament and Government.”

It continued by saying that

“the Bill weaves a tapestry of delegated powers that are breath-taking in terms of both their scope and potency”

and that the

“number, range and overlapping nature of the broad delegated powers would create what is, in effect, an unprecedented and extraordinary portmanteau of effectively unlimited powers upon which the Government could draw. They would fundamentally challenge the constitutional balance of powers between Parliament and Government and would represent a significant—and unacceptable—transfer of legal competence.”

If that is the Government’s case for the defence, I would not like to see the case for the prosecution.

[Mr Kenneth Clarke]

Does the right hon. Gentleman agree that there have been a lot of arguments in the past about Henry VIII powers and about the Executive taking power away from Parliament, and that it has all steadily gone in one direction? The danger now is not only the consequences of this Bill and of the details of Brexit, but that if the House does not challenge this Bill and change it, it will be quoted as a precedent for years to come. I have no doubt that if the Labour party ever gets back into power, a future Labour Government will start lecturing a Conservative Opposition that there are clear precedents for taking powers of this kind.

[Mr McFadden]

The right hon. and learned Gentleman is, of course, correct that we have had some of these debates before.

The criticism does not stop with the House of Lords Committee. The Hansard Society says that

“the Bill will strengthen the…executive, not Parliament”.

Its report on the Bill says:

“the broad scope of its…powers, the inadequate constraints…on them, and shortcomings in the proposed parliamentary control…will be…a toxic mix”.

We have had regulatory Bills before, and many years ago, when I was first elected, I was involved in taking the Legislative and Regulatory Reform Act 2006 through the House. There was huge controversy about the powers contained in that legislation, and many Conservative Members who most vociferously defend the European Union (Withdrawal) Bill attacked that Act as a huge power grab.

The response to the 2006 Act led to the setting up of a special scrutiny process for deregulatory measures, and the Hansard Society says:

“Previous legislation, such as the Legislative and Regulatory Reform Act 2006, provides examples of ways in which”

the Government

“could introduce safeguards into the EU (Withdrawal) Bill to tighten the scope and application of the powers.”

But there are no special scrutiny measures proposed in the Bill, even though its scope is far, far broader than the 2006 Act.