Retained EU Law (Revocation and Reform) Bill

David Davis Excerpts

Report stage
Wednesday 18th January 2023 Commons Chamber

[Sir William Cash]

I am grateful for that intervention, because nothing could have been more obvious than the fact that the hon. Member for Ellesmere Port and Neston, and indeed many Opposition Members, simply do not have a clue about how the operations of the European Union function. I will deal with them in a minute, as the hon. Gentleman will find out—I would be interested if he would like to intervene and repudiate what I am about to say.

The Lords themselves—unelected, of course—are subject to the Parliament Acts, which may well prove necessary in relation to this Bill. This is therefore an issue of democracy.

I have watched and participated in the evolution of change in relation to European matters both in this House and outside, in referendum campaigns and the like, for the best part of 38 years. It is essential for those who are not so well acquainted with the manner in which EU law is made, which became more objectionable as the competencies in each of the treaties expanded, to appreciate just how undemocratic and unaccountable the EU system unequivocally is. I have to say that my own party is responsible for many of the problems that were created, but I am delighted to say that the democratic decisions of the British people have now demonstrated the need for this Bill, along with the fact that we have left the European Union.

The democratic deficit is one of the most important reasons—if not the most important reason—why we had to leave and why the Northern Ireland protocol arrangements and the Northern Ireland Protocol Bill are in need of immediate resolution. That Bill, which has passed all its stages in this House, is now becalmed like the Mary Celeste in the House of Lords, with nobody on board, pending agreement from the European Union to change its mandate and resolve this outrageous democratic deficit immediately.

As Con O’Neill, who negotiated our entry into the European Union, admitted in his 1983 report to Lord Hume—by then, far too late—the Government simply did not understand the undemocratic system that was and remains employed by the European Union. Many people, as is quite obvious from what we have heard in the past 40 minutes, do not have the foggiest idea what that means in practice and the way in which the European Union actually functions.

[Mr David Davis (Haltemprice and Howden) (Con)]

Will my hon. Friend give way?

[Sir William Cash]

No. In a nutshell, every single law that goes to the Council of Ministers, which is the ultimate law-making body, does so by a majority vote of the 27 member stated behind closed doors, without even so much as a transcript and in total secrecy. Indeed, I had an exchange with the noble Lord Clarke of Nottingham on this matter when he was still in this House in 2017. He made it abundantly clear in his response to an intervention that the real legislative power of the Council of Ministers was exercised in private, going on to say,

“I used to find that the best business at the European Council was usually done over lunch”,—[Official Report, 14 November 2017; Vol. 631, c. 215.]

which is fundamentally different from the way in which we have legislated since we left the EU and in this actual debate today. By contrast, we are conducting business today, and taking democratic decisions, by a majority of this House, which is proof in itself that it works.

In practice, in the context of the sunset arrangements in this Bill, clauses 12 to 16 provide delegated powers to restate, revoke and/or replace and update certain retained EU laws, which are secondary retained EU law and a new category of “secondary assimilated law”. Many of these powers are subject to the negative procedure, but the affirmative procedure is required where primary legislation is being amended or substantive policy change implemented. Some primary legislation is in the Bill. Where the negative procedure applies, the scrutiny system is similar to the work done by the European Statutory Instruments Committee, and it will be for the House to decide how that evolves in line with the democratic decision taken by this House today.

When the original proposals for the first withdrawal agreement Act were brought into effect, at my suggestion—I introduced a Bill on the subject—all EU law was then deemed to be UK law. But then remainers got to work and came up with the concept of retained EU law, which asserted the supremacy of the principles of EU law and decisions by the European Court. We may have left the EU, but a massive ball and chain was embedded in that Act preventing us from making our own sovereign laws on our own terms. I add, by way of parenthesis, that the Prime Minister responsible for that Act resigned—thanks to the Spartans.

Those laws had been made under sections 2 and 3 of the European Communities Act 1972. It is certainly true to say that since that date, not one single European law was ever repudiated by this House, because the provisions of that 1972 Act prevented it. We were therefore subjugated to the European Union and decisions of the European Court of Justice by our own irresponsible, voluntary abdication of the inherent and democratic procedures that evolved in this House over the best part of 400 years.

Our entry into the EU in 1972 was therefore a blind step into the void of an undemocratic and unaccountable system of government. These thousands of laws lack inherent democratic legitimacy, and must therefore be removed from and/or replaced on our statute book. The Bill also allows us to move back to the certainty implicit in the UK common-law way of doing things, as compared with the purposive interpretation of law by our judges, as laid down by the principles of EU law. Nobody can dispute that.

--- Later in debate ---

[Emma Hardy (Kingston upon Hull West and Hessle) (Lab)]

One of the loveliest plaudits I have had since becoming a Member of Parliament is to be named as a species champion for the brimstone butterfly. If I had longer, I would tell the House about what a beautiful butterfly it is and how it can be conserved.

This debate reminds me of my daughter’s favourite film, “The Lorax”, which I have seen many, many times. The Lorax stands and speaks for the trees. Today I am speaking not only for the trees but for nature. There are very legitimate concerns about the impact of revoking all retained EU law, and those concerns come from the Royal Society for the Protection of Birds, Butterfly Conservation, Buglife, Plantlife, the Bumblebee Conservation Trust, the Bat Conservation Trust and the Amphibian and Reptile Conservation Trust. These are not radical or militant groups. They are not interested in the rights and wrongs of Brexit, and many were in existence long before the UK even joined the EU. Their intervention is unprecedented. These are mainstream conservation charities that rely on their membership, which I know personally is comprised of people with completely different political beliefs who share a common desire to improve and support nature. When the RSPB calls this Bill “an attack on nature,” we have to listen.

The Government created the category of retained EU law to ensure continuity after leaving the EU, and their deadline is arbitrary. Anyone would think the Prime Minister is more concerned about the upcoming local elections and the impending general election than about doing the right thing. The Bill flies in the face of common sense. Rushing to get rid of legislation without the time or the capacity to consider properly what we might want to keep does not make sense. As has been repeatedly pointed out in this debate, the Minister is not even aware of all the legislation that we might be getting rid of. It feels as though the Government are intent on cutting their nose off to spite their face. This is childish and it is another example of the Prime Minister putting the needs of his Brexit extremists ahead of what is right for our country.

The Environment Secretary had told the Environment and Climate Change Committee that 1,000 pieces of legislation were possibly involved, but we know that that figure has doubled, and the Minister is unable to give a final figure. If we do not know how much legislation is impacted, how can we possibly consider what we want to keep? Let us look at what is at risk. The environmental protections at risk include the highly effective habitats regulations, which protect some of most threatened and rare species and their habitats from the impacts of inappropriate development and persecution; the water framework directive, which regulates water pollution prevention and drives forward quality improvements in rivers and lakes; and the plant protection products regulations, which provide protection for all the environment and human health from pesticides.

Of course, what we want is to strengthen and not destroy, but this Bill makes a nonsense of the country’s environmental targets and commitments, and the Environment Secretary knows it. The confusion in this Government is shown by the fact that, on the one hand we have the new statutory English biodiversity targets published under the Environment Act 2021, which add to the pre-existing target of having 30% of the country protected for wildlife by 2030, while on the other hand DEFRA is consumed by a scramble to redraft regulations that have taken decades of work and expert consultation to evolve, under the direction to “lessen environmental burdens”. Like the rest of government, DEFRA is pulling in two directions at the same time.

Clause 15 prevents redrafting by precluding any that would “increase the regulatory burden”, even if these burdens that we are so worried about increasing amount to only an administrative inconvenience. It is crystal clear that the only outcome can be a weakening of environmental protections for our air, soils and water, and an increase in the loss of biodiversity. I believe that the public really care about this. The membership of all those organisations, right across the whole of our country, in every constituency, care too. We are a nation of animal lovers and we want the air we breathe and the waters around us to be clean. If we do not know what we are getting rid of, how it may have an impact and what difference it might make, how can we be sure we are doing the right thing? I was always taught that if something is worth doing, it is worth doing well. So will the Government just calm down, focus and get it right? Our country will pay the price if they do not.

[Mr David Davis (Haltemprice and Howden) (Con)]

I will be brief. My arguments will be simple and they will go straight to amendment 36.

When the right hon. Member for Leeds Central (Hilary Benn) spoke, I had a flash of déjà vu, back to the days when I co-operated with his father, thwarting the Blairite attempts to bypass Parliament some years ago. It came back to me that his father and I also shared a view on the European Union, with both of us knowing that it was undemocratic. We knew that both from ministerial experience and because we had read out history; Monnet and Schuman had designed it to be undemocratic, which was why we wanted to leave.

I say to the Minister, given what was said before from the Front Bench, that I come at this as a convinced and campaigning Brexiteer. I remind the House, given the substance of this Bill, that I resigned from Cabinet to preserve the right to diverge from the EU. So I agree with the aims of the Bill, but I also agree with the SNP spokesman, the hon. Member for Stirling (Alyn Smith), about its effectiveness in delivering those aims. I voted and campaigned to improve democracy; I wanted to take back control in order to give it to Westminster, not to Whitehall. However, that is what we have here.

When the Minister was speaking earlier, she talked about the consultations, but they were not with us—they were with the Scottish Government, the Welsh Government, the Departments of State and not with us. But we are the people who are responsible for this legislation. What is more, we are being asked to sign a blank cheque—one might almost say a pig in a poke—because we do not even know how many pieces of legislation are going through on the back of this Bill, let alone what they are. That, of course, is not democratic. We have heard the anoraks talking about this SI Committee, that sifting Committee and so on. That is not the Floor of this House. These issues are sufficiently important—some of them, not all of them—to be debated in the Chamber. Just glancing down the list, I see: aviation safety; compensation rules; insider trading; protecting a pensioner’s payout when a company goes bust—I cannot think of anything more significant to our constituents than that; and preventing the trafficking of illegal weapons. These are substantive issues that need to come to us.

[Stella Creasy]

I hesitate to stop the right hon. Gentleman, but does he therefore agree with me that the fact that Ministers have already unilaterally decided to revoke the piece of legislation that protects our constituents getting 50% of a pension pot if their company goes bust, without any consultation with us because they will use the powers in the Bill simply to let it be deleted, makes exactly his case as to why this is not democracy or taking back control?

[Mr Davis]

If the hon. Lady had given me 30 seconds, I would have made exactly that point. I agree with her. This morning, or last night, we had No. 10 rushing to brief the papers and to write to us saying that the Bill will not remove existing rights and protections, which is plainly not true, and that it will not impinge on environmental rights and so on. That demonstrates what a great hole there is in the middle of this legislation. If those matters were covered in the law, we would not need to have that assurance. All of the non-governmental organisations that are concerned—I do not agree with all of them—would not have had to have their say either.

[Mr Rees-Mogg]

I am very grateful to my right hon. Friend for giving way, because I, too, am very much in favour of parliamentary scrutiny and things being done properly. Everything that is covered by this Bill came in by a secondary measure and therefore it is proportional. Primary legislation is not within the scope of the Bill. If anything that came out of Europe came through in primary legislation, it will have to go through consideration on the Floor of the House. Unless my right hon. Friend is against secondary legislation altogether, I do not quite understand why he finds this Bill so shocking.

[Mr Davis]

I am sorry, but two wrongs do not make a right. The reason why I did not like the European Union was precisely what my right hon. Friend has just described. We had things almost de facto imposed on us. We went down an SI-type route to do things that I thought were important enough to justify discussion on the Floor of the House. The depletion of debate on the Floor of the House, mostly in the years before he came into the House, was one reason I was a Brexiteer.

We have approached this issue in a different way in other respects. Let us imagine that we are talking about 4,000 pieces of law, regulations or whatever. In truth, probably 90% of that may be clunky and may not work very well, but there is one thing in the Bill that I approve of, which is dealing with the superiority of European law—taking those priorities out of it. That is sensible. Once we have dealt with that, things will broadly work and will not justify a rush at this exercise. Let me explain very briefly what I think the consequences of that will be. I said that it is not democratic, but it will also be inefficient and possibly incompetent. I give the House, as a demonstration of this, what we did on 3 March 2020. You may remember, Mr Deputy Speaker, that that was the day that we gave the Government all sorts of powers under the emergency Coronavirus Act 2020. If we look, we can see how many errors were made in governing the country over the next six months, until we corrected that Act. If we do not bring a Minister to that Dispatch Box to justify what they are doing, the quality of the decision goes down, and that is dangerous when we are talking about measures as important as these.

The right approach is the one that we have actually taken in some areas. For example, we are rewriting the General Data Protection Regulation under a digital Bill. We are rewriting Solvency II and other financial measures under primary legislation, and the same is true for some procurement work. We should be doing similar things with some other software elements and biomedical rules. That is the way to do it: pick off the 10% or the 5% that really matter—that make 100% of the difference—and do that properly, on the Floor of the House, and not by remote control on a ministerial diktat in an SI Committee upstairs.

[Sarah Olney (Richmond Park) (LD)]

It is a pleasure to follow the right hon. Member for Haltemprice and Howden (Mr Davis) in this debate. I rise to speak to amendment 36, tabled in my name and the names of right hon. and hon. Members from across the House, and to pay tribute to the hon. Member for Walthamstow (Stella Creasy) for her hard work in drafting and tabling it.