EU Withdrawal Agreement: Legal Changes

Chris Stephens Excerpts

Monday 7th January 2019 Commons Chamber

[Stephen Barclay]

I respect the work that the hon. Lady has done and the seriousness with which she and my right hon. Friend the Member for Harlow (Robert Halfon) have looked at this issue and tried to engage with it in a material way. I have set out my concerns with the substance of their proposal, but that does not negate the work that has been done.

On whether there will be indicative votes, the reality is that, if the deal does not go ahead, we will be in uncharted water and we as a Government will need to look at that. None the less, it is our policy to win the vote. That is what the entire Government are focused on, and we will continue to make that case to colleagues from all parts of the House.

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

A guid new year tae yin and a’, and mony may ye see!

Will the Secretary of State confirm that the emergency services contract, and any other contracts to deal with a no-deal Brexit, will not be part of the EU procurement process or under EU procurement rules? What does he believe it means when the UK Government can produce worse procurement than the European Union?

[Stephen Barclay]

I am not sighted on emergency services contracts, but I am happy to have a discussion with the hon. Gentleman about any specific concern he has about procurement. As hon. Members know, I share the desire of many others for value for money and ensuring that we procure effectively.

European Union (Withdrawal) Bill

Chris Stephens Excerpts

3rd reading: House of Commons & Report stage: Second Day: House of Commons
Wednesday 17th January 2018 Commons Chamber

[Matthew Pennycook]

That is absolutely true. The Government would be able to do that by using subordinate legislation in other Acts of Parliament. That applies not just to workers’ rights, but to other areas of law such as the environment and consumer rights. That category of law will lose its underpinnings following our departure from the EU.

Wrenched away from the enhanced protection enjoyed as a result of our EU membership, retained EU law—and we should bear in mind that that category of law might be with us for decades—will in many cases enjoy the lowest possible legislative status, and consequently the wide range of rights and protections that flow from it will be more vulnerable than they were before. The Opposition have repeatedly emphasised that Brexit must not lead to any watering down or weakening of EU-derived rights, particularly rights and standards in areas such as employment, equality, health and safety, consumers and the environment. That is why we tabled new clause 58 in Committee. Setting out the reasons why the Government were opposed to new clause 58, the Solicitor General argued that it would

“fetter powers across the statute book that Parliament has already delegated.”

Furthermore:

“Relying only on powers set out in this Bill to amend retained EU law would be insufficient”.—[Official Report, 15 November 2017; Vol. 631, c. 418.]

In keeping with the constructive approach that we have taken towards the Bill throughout this process, we have engaged seriously with the Solicitor General’s argument, and new clause 1 is the result. Like new clause 58, it seeks to give retained EU law a level of enhanced protection, thus avoiding a situation in which laws falling within the new category might enjoy the lowest possible legislative status. It also accepts the defence put forward by the Solicitor General, and provides a mechanism whereby a Minister may use regulations provided for in other Acts of Parliament to amend, repeal or modify retained EU law, but only in cases in which it is necessary to maintain or enhance rights and protections, and only after consultation. In short, it concedes that there are many instances in which the use of subordinate legislation contained in other Acts of Parliament might be necessary, but seeks to reconcile its use with a presumption of enhanced protection.

Since the referendum, Ministers have repeatedly stated that the Government do not wish to see any rights and protections diminished as a result of our departure from the EU. That is also what the public expect, but it requires a level of protection that the Bill as it stands does not provide. We hope that the Government will engage seriously with the new clause and accept it, but we intend to press it to a vote if they do not.

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

Is it not important for the public to be reassured about workers’ rights, given reports in the media of Cabinet discussions about scrapping the working time directive?

[Matthew Pennycook]

I think most of our constituents assume that the guarantees that they currently enjoy will continue. They will not know that many of these rights flow from and are underpinned by EU law, but they would expect them to be transposed in a way that would provide the same level of protection rather than the lowest possible legislative status. This is an issue to which we shall have to return, and one that the other place will no doubt tackle.

Amendment 2 seeks to further circumscribe the correcting powers contained in clause 7. Throughout this process, we have been at pains to argue that, to the extent that relatively wide delegated powers in the Bill are necessary, they should not be granted casually, and that when they are granted they should be limited whenever that is possible and practical. It is clear from their tabling of amendments 14 and 15, and consequential amendments, that the Government accept that there are shortcomings in the drafting of clause 7. We welcome the fact that the deficiencies identified in clause 7(2) will now form an exhaustive rather than an illustrative list—with the caveat, I should add, that the further deficiencies can be added at a later date. In effect, the list as drafted will be exhaustive unless Ministers subsequently decide that it is not. That is not perfect, but it does represent some progress.

Nevertheless, even with the incorporation of Government amendments 14 and 15, the correcting powers provided for which clause 7 provides are still too potent and too widely drawn. Suggestions on day six of the Committee stage that the clause ought to stipulate that the correcting power should be used only when necessary have been ignored, as have concerns that the Bill as drafted does not guarantee that the powers and functions of entities such as the European Commission and other EU agencies will continue to operate with equivalent scope, purpose and effect after exit day. Concerns that the Bill as drafted could be used for a purpose other than that which was intended— specifically, that it has the potential to diminish rights and protections—have likewise been ignored.

On day six, the Government had the chance to justify the drafting of the clause in detail and to address each of those concerns, but they did not do so adequately. They were also given an enormous menu of options, in amendments tabled by Back Benchers in all parties, whereby the powers in the clause—and, indeed, similar powers elsewhere in the Bill—might be constrained. Amendments 14 and 15 represent the totality of their response. As I have said, they are a step in the right direction. but on their own they are not enough. That is why we tabled amendment 2, which addresses comprehensively the range of flaws contained in clause 7 so that the correcting power is reasonably and proportionately circumscribed. If the Government do not indicate that they have taken those concerns on board and are prepared to act on them, we will press the amendment to a vote.

Amendment 1 seeks to ensure that the Bill can facilitate transitional arrangements after 29 March 2019 on the same basic terms as now. The Opposition have argued for some time that we need a time-limited transitional period between our exit from the EU and the future relationship that we build with our European partners. We believe that, to provide maximum certainty and stability, that transitional period should be based on the same basic terms as now. That includes our being in a customs union with the EU and in the single market, both of which will entail the continued jurisdiction of the European Court of Justice for the period that is agreed. Our view is shared widely by businesses and trade unions, but for a long time it was considered to be anathema to the Prime Minister and senior members of her Cabinet.

--- Later in debate ---

[Mr Chris Leslie (Nottingham East) (Lab/Co-op)]

I congratulate the right hon. and learned Member for Rushcliffe (Mr Clarke) on warming up the debate so well. In a way, Mr Speaker, I feel sorry for you in the Chair, because it is perfectly ridiculous that the programme order is such that we have to conclude our series of debates at 4.30 pm when so many issues have not been properly aired on Report. I said that during yesterday’s debate on the programme motion, and I hope that Members in the other place will bear that in mind when they consider the Bill.

I tabled amendments on six issues that I did not think had been adequately covered in Committee. Being a dutiful Member, I felt it my responsibility to table amendments to cover those issues, but I must rush through them, because otherwise I will not exactly be flavour of the month with many of my colleagues.

[Chris Stephens]

Hear, hear!

[Mr Leslie]

Don’t say “Hear, hear” in that way.

New clause 5 addresses a massive topic. It simply says, almost in the words of the Secretary of State for Exiting the European Union, that after we have left the EU, we should have the exact same benefits for the service industries in our country—including financial, legal and professional services—as we have now. The service sector accounts for some 80% of the British economy. During our consideration of the Bill, we have not yet really debated the implications for the service sector. It is often easier to talk about the trade in goods, because goods are tangible—they are physical, and we can imagine them crossing borders, going through ports and so forth—but in many ways we excel in our service sector, so new clause 5 would simply put into the Bill the commitment that Ministers have previously given that they would seek the exact same benefits.

--- Later in debate ---

[Mr Speaker]

To speak very briefly, for 20 seconds, I call Chris Stephens.

[Chris Stephens]

I hope the Government will consider workplace protections in the Bill, because many of us do not trust the Government in that regard.

[Mr Speaker]

Very well done. I am immensely grateful to the hon. Gentleman, who was even briefer than I expected. The Minister has just under 20 minutes to reply.

--- Later in debate ---

[Mr Baker]

I am extremely grateful to my right hon. and learned Friend, and pay tribute to him. Although I have occasionally disagreed with him, he has, of course, made a historic contribution to the passage of the Bill. I am very grateful for the way in which he has helped us to improve the legislation.

Labour’s amendment 2 would restrict the scope of the clause 7 power. Labour appears to accept the principle that the power is essential if the UK is to exit the EU with certainty, continuity, control and a working statute book, but restricting the power in the way proposed in amendment 2 would risk compromising our ability to ensure that that statute book continues to function, thereby leaving gaps in our law, and creating uncertainty and confusion for businesses and individuals.

As we have explained previously, making the list of deficiencies in clause 7(2) exhaustive and immutable would risk omitting important deficiencies, preventing us from fully correcting the statute book. To require primary legislation in such circumstances would undermine the purpose of the Bill and the usual justifications for secondary legislation: technical detail, readability, incompleteness and, crucially, the management of time. We cannot risk undermining laws on which businesses and individuals—often unknowingly—rely every day.

As my right hon. Friend the Chancellor of the Duchy of Lancaster set out yesterday, the word “appropriate” was chosen carefully to ensure that the Government have the discretion called for by this unique situation. The constraints that a test of necessity would impose would prevent the Government and the devolved Administrations from making the best corrections to ensure that the statute book continues to function properly. A provision of necessity would risk limiting the Government and the devolved Administrations to only the most minimal changes, regardless of whether that would leave the law deficient, create absurd outcomes, or change the outcomes that the legislation was intended to deliver. I cannot believe that any Member would want to risk leaving the statute book in such a state. I am very conscious that we are now in a position whereby either these instruments will be brought forward under the affirmative procedure or, if they are brought forward under the negative procedure, the sifting committee will have the opportunity to push us towards that affirmative procedure.

Amendment 2 and new clause 15 seek to prevent regression in the protection of rights and equalities as we leave the EU, and new clause 14 seeks to do similarly by maintaining equivalence with the EU. The UK already has strong protections for equalities and human rights as part of our domestic provisions, independent of our membership of the EU. Some of those predate or go beyond EU requirements. The Government are committed to protecting our equalities legislation as we leave the EU. As we set out in the paper that we published on equalities legislation, limited technical amendments will be needed to ensure that all relevant legislation continues to operate as intended by Parliament after exit.

[Chris Stephens]

Will the Minister confirm that the Government intend to keep in place the equal treatment directive, which has helped women to gain equal pay claims?

[Mr Baker]

My first point is that that will be incorporated into our legislation. The purpose of the Bill is to ensure that we carry EU legislation into UK law. Secondly, we can only correct deficiencies that arise as a result of our withdrawal, and the hon. Gentleman will be familiar by now with the provisions of clause 7 and associated schedule 2.

To increase transparency, the Government amendments accepted by the House on 13 December will require a Minister to make a statement relating to equalities legislation and duties before laying every SI made under the principal powers in the Bill, as sought by the hon. Member for Enfield, Southgate (Bambos Charalambous). It is not for this Bill to require similar statements in other EU exit legislation. Indeed, this Bill would not be able to affect most of this legislation, including the Sanctions and Anti-Money Laundering Bill and the Nuclear Safeguards Bill, which will have been introduced to the House before this Bill’s Royal Assent. However, as my hon. Friend the Member for Esher and Walton (Dominic Raab) promised in Committee, we will make equalities-related statements alongside other EU exit-related legislation, which I hope will satisfy the House.

Transparency will ensure that the House and the sifting committee established by the amendments tabled my hon. Friend the Member for Broxbourne (Mr Walker) have all the information necessary to make informed and reasonable judgments in the scrutiny of the SIs that we will be making under the Bill. I hope that Labour Front Benchers will be persuaded not to press their amendments.

I turn briefly to new clause 11, which was tabled by the right hon. Member for Carshalton and Wallington (Tom Brake). His contribution and the presence of the hon. Member for Streatham (Chuka Umunna) in the Chamber reminded me of a rather fetching photograph of the hon. Member for Streatham posing with a remain campaign poster pointing out that the leave campaign had said that we would leave the single market. If any Member wishes to see that, I might tweet it later.

It would be remiss of me if I did not thank all those involved with the passage of the Bill: all right hon. and hon. Members who took time to participate; all the Clerks in the Public Bill Office who have provided invaluable support to Members of the House; and the world-class officials in DExEU and across Government who have ensured the Bill’s smooth passage.

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.

European Union (Notification of Withdrawal) Bill

Chris Stephens Excerpts

Committee: 2nd sitting: House of Commons
Tuesday 7th February 2017 Commons Chamber

[Patrick Grady]

I outlined at the start of my speech the amendments that we tabled. My hon. Friend makes a good point. We have spoken about the uncertainty caused by Euratom, which was, I accept, covered in important detail by Labour Members.

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

Is not amendment 74 the most important one, because it includes workers’ rights? Many of us view the Government’s attitude to workers’ rights with great suspicion.

[Patrick Grady]

Absolutely; indeed, an entire new schedule on workers’ rights has been tabled.

Amendment 75 calls on the Secretary of State for Communities and Local Government to publish an impact assessment on his Department’s responsibilities. Local government throughout the UK receives a host of funding from the European Union, not least the structural funds that we have heard about many times.