European Union (Withdrawal) Bill

Chris Stephens Excerpts

Committee: 6th sitting: House of Commons
Tuesday 12th December 2017 Commons Chamber

[Mr Leslie]

The right hon. and learned Gentleman and any other Member who has had the privilege of serving as a Minister will know exactly what civil servants will advise, which is, “Well, you don’t know the exact circumstances, so seek as wide a power as you can possibly get away with through Parliament, if it will turn a blind eye to it. We can deal with the consequences thereafter.”

Unfortunately for them, Ministers will not be able to get away with that on this occasion, because we have spotted this land grab attempt. It is not appropriate; if they feel that there should be exceptions or that certain circumstances should be accounted for, those must be set out in the Bill, not just left in these current loose terms.

Current Ministers might feel that they are responsible stewards of Government, but I invite hon. Members to imagine circumstances in which we end up with a malign Government of some sort, shape or variety, such as some sort of extreme Administration—who knows what might happen in years to come? These Henry VIII powers are extremely sweeping. They will be available to Ministers in years to come and could leave the door open to some quite arbitrary near-autocratic actions of a future Government.

For example, if a future Government sought to lift the 48-hour working week provisions that EU law currently gives to employees in this country, Ministers would by order potentially have the scope to do that under the powers in clauses 7 and 9. If Ministers wanted to require the banking sector to have more capital requirements under these provisions, they would be able to simply make those orders. If Ministers wanted some sort of aggressive or inappropriate state intervention to distort competition, favouring one producer over others, they would be able to do that through the provisions on these order-making powers.

[Chris Stephens (Glasgow South West) (SNP)]

Does the hon. Gentleman agree that there is a real concern across the UK in relation to workers’ rights, particularly as many in government at present were saying during the EU referendum campaign that the roll-back of workers’ rights was one of the reasons why they advocated a leave vote in the first place?

[Mr Leslie]

The Bill’s provisions are so wide-ranging that the protections that our constituents have enjoyed to this day as a result of European regulations and rights could be at risk—not from Parliament, but from a ministerial sweep of the pen, through the making of an order: a negative statutory instrument.

--- Later in debate ---

[Stephen Kinnock]

I rise to speak to new clause 37, tabled in my name and the names of many hon. Friends.

Before I turn specifically to the detail of the new clause, I would like to summarise the powers and functions of regulatory institutions. In essence, they are: monitoring and measuring compliance with legal requirements; reviewing and reporting on compliance with legal requirements; enforcing legal requirements; setting standards or targets; co-ordinating action; and publicising information. Thus we see that regulatory institutions and agencies play an absolutely central role in the proper functioning of our economy and, indeed, of our broader society. They are, as it were, the traffic lights that keep the traffic flowing around our economy, and the shields that protect our fundamental rights and freedoms.

I turn my attention to the impact that Brexit will have on the vital role that EU agencies currently play. We all know that the transition phase will, in essence, be a carbon copy of the status quo minus our representation in the EU institutions. The problem is that when we leave the EU on 29 March 2019, we will become a third country, and we will be leaving the 52 agencies that currently carry out the tasks and functions that I listed. According to research commissioned by the House of Commons Library, 16 of those 52 agencies have no provision whatever for third country participation and a further 12 allow only for observer or a vague co-operation status. That means that 28 out of the 52 EU agencies have no provision for third country participation. We are therefore facing, at the time of leaving, a yawning and very dangerous governance gap.

The purpose of my new clause is to force the Government to commit to institutional parity, meaning that all powers and functions currently relating to any freedom, right or protection that was exercised by EU agencies should continue to be carried out by an EU agency, be carried out by an appropriate existing or newly established entity or be carried out by an appropriate international entity.

Without UK institutions to take on the job of EU agencies, we will see fundamental rights, protections and regulations being removed by the back door having been rendered unenforceable. This Bill will then not be worth the paper it is written on unless it is backed up by regulatory agencies. The risks are daunting. How will we reassure businesses that wish to invest in our country if we cannot guarantee a predictable and consistent regulatory regime? How will we reassure consumers that our food hygiene standards are up to international standards? How we will we reassure people that our nuclear safety, chemicals or medicines are up to international and European standards? We can do this only if we have strong regulatory agencies to implement the terms of our legislation. I therefore commend new clause 37 to the Committee.

[Chris Stephens]

I wish to speak in favour of amendment 73, which was spoken to by my hon. Friend the Member for Edinburgh East (Tommy Sheppard). The amendment asks that workers’ rights be agreed by the Joint Ministerial Committee and seeks to clarify the role of the committee in this regard. There are three reasons why that should be done. First, there is divergence. Employment law is totally devolved to Northern Ireland; it is partially devolved to Wales, where the Welsh Assembly took the decision—rightly, my view—to amend the worst aspects of the anti-Trade Union Act; but, for reasons beyond my understanding, employment law is not yet devolved to Scotland. Secondly, there is a real concern about the impact on women workers, who would be very vulnerable to roll-back given the history of delivery on these measures, especially as most have been informed by EU directives and law. Thirdly, of course, there is a trust issue. Who would trust a Conservative Government on their commitments to workers’ rights?

The amendment is designed to explore the extent of the Government’s respect for the Joint Ministerial Committee’s role, and the extent to which they intend to use their powers. Either they respect joint working and consultation to achieve the best solutions in a post-Brexit world—in that case, the amendment should pose no challenges—or there is an agenda of bypassing the devolved Administrations at every turn, and shifting power and decision making back to Westminster.

The Henry VIII powers are a constitutional affront, given the secretive nature of their use. Ministers could use them to bypass Parliament, the judiciary and the devolved Administrations, or quietly to reshape the law without scrutiny. When it comes to employment law, I contend that the Government might wish discreetly to reverse particular Supreme Court decisions on, for example, the civil service compensation scheme, workplace consultations and industrial tribunal fees. In the Unison case, the Supreme Court held that the fees order was unlawful as a matter of not only domestic law, but EU law. Given all the cases in which the Government of the day have suffered a reversal of a decision to which they held so strongly that they were prepared to go to the Supreme Court, and in which EU law formed part of the judgment against them, it is not fanciful to think that they might want revisit the issues, especially when it comes to employment law and workers’ rights.

When Brexit fails to deliver the promised economic bonanza, it is logical to assume that a free market, anti-worker party will look to erode workers’ rights to boost profits. I commend to the Committee the TUC paper “Women workers’ rights and the risks of Brexit”. It outlines clearly and in detail the specific threat that Brexit poses to women workers. Legislation and protections have evolved under the protection of EU law, so we are right to be concerned that removing that umbrella will mean that there are stormy days ahead for women workers.

It is not so much that the rights concerning equal pay, maternity and sex discrimination will disappear overnight, but I share the concerns that hard-fought rights will be eroded, particularly if that can be done under the cover of statutory instrument and ministerial diktat. We saw that with the anti-Trade Union Act 2016—not just in the attitudes of Conservative Members in the Chamber, but in the approach to delegated legislation.

[Stephen Doughty]

The point that the hon. Gentleman makes is absolutely right. Is it not also the case that the Government have tried to undermine the Welsh Government’s efforts to protect trade unions by trying to strike down parts of that Act?

[Chris Stephens]

I thank the hon. Gentleman for making that point for me. He is absolutely correct that that is what the Government are trying to do. Statements have been made in the House of Lords, including by the former chair of the European Conservatives and Reformists group in the European Parliament, who has previously called for the scrapping of

“the working time directive, the agency workers’ directive, the pregnant workers’ directive and all the other barriers to actually employing people.”

That was said by Lord Callanan, now a Minister of State at the Department for Exiting the European Union—and the Conservatives ask us to trust them on workers’ rights! I would not trust them enough to send them out for the rolls in the morning. The Tories cannot be trusted on workers’ rights; if they were truly interested in workers’ rights, they would accept the amendment.

[Mr Leslie]

This has been a very important debate. Some may feel that this is a dry issue of constitutional process and ask how it relates to the question of Britain’s role in the rest of the world. However, it is fundamentally important to recognise Ministers’ land grab in attempting to take very sweeping powers, by order—not simply to transpose technical and necessary EU laws into UK law, but potentially to take whole areas of public policy and make changes by regulation with the sweep of a pen.

Anyone who looks at clause 7, the subject of this debate, will see a number of gaping holes that allow Ministers to drive a coach and horses through a whole series of policy areas. They can say that an order is “appropriate”, and that is all they have to prove—they are not “limited” to the areas that are set out.

By the way, the Minister was not even able to describe what the word “appropriate” meant. He was asked to do so in an intervention, and he could not. Ministers have also taken powers, by order, to abolish public services currently undertaken by EU agencies. This is a serious breach of the constitutional principle that Parliament should normally dictate what can be done by the Executive, who are trying to take very many powers.

A lot of amendments have been considered today. I hope that we can vote on amendment 124, because it would make sure that nothing undermines the UK staying aligned with the single market after exit day, which is a very important principle. In her amendment 49, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) deals with some of the Henry VIII powers. Given that there are so many other amendments and I know hon. Members want to prioritise theirs, I beg to ask leave to withdraw my new clause 18.

Clause, by leave, withdrawn.

New Clause 63

Environmental standards and protections: enforcement

‘(1) Before exit day a Minister of the Crown must make provision that all powers and functions relating to environmental standards and protections that were exercisable by EU entities or other public authorities anywhere in the United Kingdom before exit day and which do not cease to have effect as a result of the withdrawal agreement (“relevant powers and functions”) will be carried out by an appropriate existing or newly established entity or public authority in the United Kingdom.

(2) For the purposes of this section, relevant powers and functions include, but are not limited to—

(a) reviewing and reporting on the implementation of environmental standards in practice,

(b) monitoring and measuring compliance with legal requirements,

(c) publicising information including regarding compliance with environmental standards,

(d) facilitating the submission of complaints from persons with regard to possible infringements of legal requirements, and

(e) enforcing legal commitments.

(3) For the purposes of this section, relevant powers and functions carried out by an appropriate existing or newly established entity or public authority in the United Kingdom on any day after exit day must be at least equivalent to all those exercisable by EU entities or other public authorities anywhere in the United Kingdom before exit day which do not cease to have effect as a result of the withdrawal agreement.

(4) Any newly established entity or public authority in the United Kingdom charged with exercising any relevant powers and functions on any day after exit day shall not be established other than by an Act of Parliament.

(5) Before making provision under subsection (1), a Minister of the Crown shall hold a public consultation on—

(a) the precise scope of the relevant powers and functions to be carried out by an appropriate existing or newly established entity or public authority in the United Kingdom, and

(b) the institutional design of any entity or public authority in the United Kingdom to be newly established in order to exercise relevant powers and functions.

(6) A Minister of the Crown may by regulations make time-limited transitional arrangements for the exercise of relevant powers and functions until such time as an appropriate existing or newly established entity or public authority in the United Kingdom is able to carry them out.’—(Matthew Pennycook.)

This new clause would require the Government to establish new domestic governance arrangements following the UK’s exit from the EU for environmental standards and protections, following consultation.

Brought up, and read the First time.

Question put, That the clause be read a Second time.