European Union (Withdrawal) Bill

David Lidington Excerpts

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

[The Lord Chancellor and Secretary of State for Justice (Mr David Lidington)]

By my count, no fewer than 107 Members have spoken during the two days of this Second Reading debate. I hope that the House will forgive me when I say that, in the time left to me, I shall not be able to respond fully and in detail to each one of those contributions. However, I do want to express my appreciation to all Members who have taken part; and, like the hon. Member for Greenwich and Woolwich (Matthew Pennycook), I want to single out the hon. Member for Canterbury (Rosie Duffield), who made a fine maiden speech. Those of us who were in the Chamber to listen, or who read her speech in Hansard, will recall the obvious passion and affection with which she spoke about the different communities that make up her constituency. Let me add that I—and my parliamentary friends—also appreciated the generous tribute that she paid to her predecessor, Sir Julian Brazier, and I thank her for it.

I want to spend the time that I have in trying to address what seem to me to have been the three chief criticisms of the Bill expressed in various quarters of the House during the two days of debate on Second Reading: the question of the underlying principles of EU law; the matter of devolution and the powers of the devolved Administrations; and the issue of the delegated powers that are granted by the Bill. Then, again, I will try to say something about how the Government see the way forward. Let me start, however, by reminding the House why the Bill is needed.

Both the Opposition Front-Bench spokesman, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), and my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), neither of whom could be characterised as ardent champions of the leave cause—indeed, I count myself rather in their camp on the issue—said that the Bill does not determine whether or not we leave the European Union. That was a decision that the electorate took democratically last year, and both the fact of our departure and the process and timetable that govern that have to proceed now according to the process and timeframe laid out in article 50 of the treaty on European Union. What the Bill does is enable us to have a coherent, functioning statute book and regulatory system on the day that we leave and thereafter, because at that date—to take the words of article 50—the treaties cease to apply to the United Kingdom, so the rights and responsibilities that have effect legally in the United Kingdom because of European law will fall away unless they are imported into United Kingdom law by this Bill.

There were many eloquent contributions from Members about the concerns they or their constituents had about the future of various rights—employment rights, environmental rights and so on—that they currently enjoy; the hon. Member for Blaydon (Liz Twist), in recent hours of the debate was one such. My response is that those very employment, environmental and other rights, conferred as a result of EU regulations or judgments of the European Court, are continued by this Bill on a United Kingdom legal basis as part of what my hon. Friend the Member for Louth and Horncastle (Victoria Atkins) described as the wholesale adoption of European law. I have to say to the official Opposition that to vote against the Bill, as they propose to do, is therefore to vote against continuing those rights on a United Kingdom legal basis. It is to put those rights at risk, and open up the risk of a chaotic departure from the European Union, which is not going to be in the interests of either individuals or businesses in this country.

[Mr Kenneth Clarke]

rose—

[Stephen Timms (East Ham) (Lab)]

rose—

[Mr Lidington]

I give way to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke).

[Mr Clarke]

Throughout the discussion on this Bill, it has been entirely uncontroversial for everybody to agree that a Bill is required to ensure continuity and certainty for existing EU legal arrangements, putting them into British law straight away for the future. Will my right hon. Friend give an undertaking that when we move to the Committee stage in a few weeks, or probably about a month, the Government will produce substantial amendments to address what this whole debate has been about: the huge extension to the Government of discretionary powers that go far beyond the limited ambition my right hon. Friend is describing? I would prefer him and the Government to come back, address those issues and turn this Bill into one that resembles the reassuring descriptions of it that keep being given by the Secretary of State for Brexit and by him—two members of the Government whose word I would actually accept implicitly, but in the political world I have known Governments to go back on reassuring words quite frequently.

[Mr Lidington]

I want to come on to that point later, but I first give way to the right hon. Member for East Ham (Stephen Timms).

[Stephen Timms]

I invite the Secretary of State to respond to the criticism of his party colleague, the right hon. and learned Member for Beaconsfield (Mr Grieve), who is surely absolutely right to describe this as an “appalling monstrosity” of a Bill, which the House, frankly, should throw out.

[Mr Lidington]

That is a not a verdict with which I agree. Some of the criticisms of the Bill have been exaggerated up to and beyond the point of hyperbole, and I will seek to explain why.

In concluding my comments about why the Bill is needed, I want to stress that the time available to us under the terms of article 50 is limited. We must assume that in March 2019 this country will leave the European Union. That will be the deadline, and therefore by that date we need not only to have primary legislation enacted, but to have established the new regulatory bodies. We will need to have given effect to the secondary legislation that is proposed under the defined powers laid out in the Bill.

Several right hon. and hon. Members have said, “Yes, certain rights may be being preserved, but what about the general underlying principles of EU law?” As I said earlier, when we leave, the treaties will cease to apply to this country, but under the Bill, the general principles of European law, as recognised by the Court of Justice before exit day, or as embodied in extant European legislation, will be retained in United Kingdom law for the purposes of interpreting retained EU law. Existing sources of rights and domestic rights of action will continue to operate in United Kingdom law undisturbed by the Bill. That includes rights such as the right to equal treatment and non-discrimination. Similarly, notwithstanding our exit from the EU, individuals will continue to be able to challenge secondary legislation and administrative action under our domestic law by way of well-established grounds of judicial review.

To take two important issues that have been raised, all the rights and remedies available under the working time directive or the Equality Act 2010 will remain in force, but they will be enforced through the United Kingdom courts—ultimately, our Supreme Court—rather than through the European courts.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I wonder whether what my right hon. Friend says can actually be correct. The feature of the Bill is that it removes the right of challenge for breach of the general principles of EU law. As a consequence, rights that currently exist and are exercised—indeed, were exercised by our right hon. Friend the Secretary of State for Exiting the European Union—will in future not be available. That is an important point that the Government will have to consider during the passage of the Bill.

[Mr Lidington]

For the most part, those rights are used when they are given effect through specific items of European Union legislation, rather than in the abstract. My right hon. and learned Friend makes an important point, and it is true that after exit it will not be possible for an individual to bring a free-standing claim, or for the courts to quash an administrative action or disapply legislation on the grounds that it breaks one or more of the general principles of European law, except as those principles have been preserved by the Bill—which will be the case if those principles have been given effect through a specific piece of legislation. That position flows logically from the decision by the electorate to leave the European Union, because that does involve separating the United Kingdom’s legal order from the European Union’s legal order.

The issue of devolution has been the subject of much debate among Scottish Members of Parliament—

[Lady Hermon]

I am grateful to the Secretary of State for allowing me to intervene and help him with the general principles of EU law, which are respect for human rights and the principles of proportionality and non-discrimination. Those are principles that we in this country should be enormously proud of and embrace, instead of setting them aside. The Bill, in schedule 1, excludes anyone from relying on those general principles before a court, tribunal or public authority.

[Mr Lidington]

Those principles of human rights and non-discrimination are embodied in United Kingdom legislation and given effect by our courts. That was the situation 40 years ago, before we entered the European Union, it has remained the situation throughout our membership, and it will continue to be the position, unaffected by this Bill.

As for devolution, every single decision taken by the devolved Administrations will continue to be taken by them. The only question is how we best allocate to the UK Government and to the devolved Administrations the competencies and powers that will return to this country, because the devolution Acts were drafted in the context of this country’s membership of the European Union and the lists of devolved and reserved powers were drawn up against that background. For example, the common fisheries policy includes matters relating to the detailed management and regulation of fisheries, but it also covers EU agreements with third countries, such as the EU-Morocco fisheries agreement, and includes such matters as the UN convention relating to migratory fish stocks—international agreements that one might think should fall naturally to the United Kingdom Government. That will be a matter for continuing discussion between the United Kingdom Government and the devolved Administrations.

We shall need to come forward with some common frameworks to ensure, for example, that a Scottish farmer can sell some of his produce to customers in England or Northern Ireland without having to worry about two different sets of hygiene and food safety regulations, or that a Welsh paint manufacturer can sell freely anywhere in the United Kingdom without having to be concerned about different rules on the regulation of the chemicals in that paint. I am confident that the outcome of negotiations and continuing discussions with the devolved Administrations will be a significant increase in the powers being exercised by those devolved Administrations. That remains the Government’s intention. I can also say to my hon. Friend the Member for East Renfrewshire (Paul Masterton) that, yes, Ministers in the Department for Exiting the European Union and across Government will continue to talk to and listen carefully both to the views of Ministers in the devolved Administrations and to parliamentarians in the Scottish Parliament, the Welsh Assembly and soon, I hope, in the Northern Ireland Assembly.

Above all, the debate has centred on delegated powers, and I emphasise that the Bill already contains significant safeguards, which the debate has sometimes tended to overlook. Each of the four clauses that authorise secondary legislation has a defined purpose, and a statutory instrument made under such a clause cannot be made to do something else. It has to deliver something that is within the purpose defined in that clause. If we look at clause 7, for example, the power to make a statutory instrument is limited to something that will put right a failure or deficiency in retained EU law

“arising from the withdrawal of the United Kingdom from the EU.”

That power cannot be exercised for any other purpose. A Minister cannot make regulations because he dislikes the underlying policy or indeed because he dislikes the underlying EU law, but only when there is a problem with the operability of a piece of EU law that has been brought about by this country’s departure from the EU.

A similar condition applies to clause 8, which deals with our international obligations. There has been a lot of debate about clause 9, but its powers can be used only for the purpose of implementing the withdrawal agreement. The powers in clause 17 are limited to consequential amendments, and “consequential” has a long-established, tightly defined meaning in parliamentary practice and in law. The idea that there is some sweeping power in the Bill to rewrite the law of the United Kingdom is simply wrong. The statutory instruments may be used only for the purposes set out in the Bill.

In addition, the Government have included sunset clauses. The powers in clauses 7 and 8 lapse two years after exit day, and those in clause 9 lapse on exit day itself. The Bill also includes further safeguards in a list of exclusions from the scope of any delegated legislation, so none of the powers that grant secondary legislation can be used to make retrospective provision, to increase taxation, to create criminal offences or to affect the scope and application of the Human Rights Act 1998.

Despite the assurances incorporated in the wording of the Bill, very genuine, sincere concerns have been expressed on both sides of the House about whether there is sufficient parliamentary control over and scrutiny of how the powers will be used. [Interruption.]

[Mr Speaker]

Order. If the Secretary of State would be good enough to face the House, we would all benefit from his mellifluous tones.

[Mr Lidington]

It strikes me that there have been constructive comments and suggestions from a range of Members, including my right hon. and learned Friends the Members for Rushcliffe and for Beaconsfield (Mr Grieve), my right hon. Friend the Member for Broxtowe (Anna Soubry), my hon. Friend the Member for Totnes (Dr Wollaston), the right hon. Member for Birkenhead (Frank Field) and the hon. Members for Vauxhall (Kate Hoey) and for Blackley and Broughton (Graham Stringer). Between Second Reading and Committee, the Secretary of State for Exiting the European Union and his team intend to discuss those suggestions further with colleagues on both sides of the House.

We accept that we need to get the balance right—for example, between negative and affirmative procedure and between debates in Committee and debates on the Floor of the House—and, as my right hon. Friend the Secretary of State for Exiting the European Union has already pledged, we wish to discuss further the issue first raised by the right hon. Member for Leeds Central (Hilary Benn) about linking the timing of SIs under clause 9 to the date of debates on the withdrawal agreement, although we will have to bear in mind the possibility that that agreement might be concluded only very shortly before the date of exit.

[Mr Grieve]

My right hon. Friend is discussing matters that will have to be considered in detail in Committee. A sensible programme motion has been tabled, but can the Government assure the House that, if more time is needed because, in truth, we have difficulty getting through the programme within the period specified, they will properly consider making more time available to the House?

[Mr Lidington]

We think that the 64 hours that have been guaranteed are reasonable, and they compare with the 39 hours and 17 minutes that the Blair Government granted on the Bill to ratify the Lisbon treaty. We have shown today that, where there is good reason to extend debate further, we are willing to consider it very seriously and carefully indeed. I hope my right hon. and learned Friend will take that assurance in the spirit in which it is intended.

I hope that the House will recognise that it is in the national interest that we put this Bill on the statute book and that we deliver the democratic verdict of the British people in a way that allows businesses and individuals to plan for their future, confident in what the law will be on and after exit day. I hope that the House will therefore give a clear vote for the Bill on Second Reading.

Question put, That the amendment be made.

European Union (Withdrawal) Bill

David Lidington Excerpts

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[Stephen Gethins]

Thank you, Mr Speaker.

Let me make these points. What accountability is there on the promises that were made during the EU referendum? The Secretary of State for Scotland told us that we would have a “powers bonanza”, but there has been nothing. The Environment Secretary said that we would get powers over immigration, but there has been no accountability over that. The Foreign Secretary said that there would be £350 million for the NHS, and quite remarkably, he doubled down on that last night. No shame whatever. Is it any wonder that the latest NatCen survey shows that, rather than 59% of people in Scotland thinking that the Government are handling this badly, the figure has shot up to 67%? The hon. Member for Stirling (Stephen Kerr) mentioned this earlier.

Let us compare that to the attitude of the Scottish Government on this. The amendments that have gone down have been drafted by their working with colleagues from across this House and across the Administrations. We published our amendments in due time. Even yesterday, the Scottish Government used the economists that they have at their disposal to publish—not keep secret—their analysis of Scotland’s place in Europe. It showed an 8.5% loss in GDP, equating to £2,500 for every person in Scotland, through losing the value of EU nationals. Leaving the single market will be devastating. On this, I make a gentle point to our Labour colleagues, many of whom have stuck out their neck on the single market. This Government are on the ropes and we could have a majority that could achieve a sensible outcome. I urge my colleagues on the Labour Benches to reconsider some of their options on this. We can stay in the single market.

In conclusion, compromises can be reached but we must see the amendments. All of this is happening even though we were told that the only way to stay in the EU was to vote no. Two thousand years ago, the first Scot in recorded history, Calgacus, was said to have told his followers about the Romans:

“They are the only people on earth to covet wealth and poverty with equal craving. They plunder, they butcher, they ravish, and call it by the…name of ‘empire’.”

As we leave the European Union, we have nothing on clause 11, nothing on the rights of EU citizens, nothing about what will happen to our trade, and nothing on the opportunities for young people. That leads me to conclude that the only plan that the Brexiteers have is to create a desert and call it Brexit.

[The Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster (Mr David Lidington)]

The debate has been lively and has ranged quite widely over various aspects of the impact of this country’s withdrawal from the European Union on the devolution settlements. I therefore want to make it clear from the start that the Government’s expectation and intention are that the return of competences from the European Union will result in a very significant addition to the powers exercised in future by the devolved Administrations on the bases set out in their respective devolution statutes. However, we have to go about this complex task in the right way for the sake of individuals, families and businesses in every part of the United Kingdom, because the devolution settlements were negotiated, debated and enacted on the basis of certain competences being known to be within the power of the European Union and, on the quite reasonable assumption at the time that the devolution statutes went through this House, that that would continue to be the situation.

--- Later in debate ---

[Lady Hermon]

rose—

[Mr Lidington]

I will give way briefly to the hon. Lady, who has not made a speech in this debate.

[Lady Hermon]

May I congratulate the right hon. Gentleman on his new job? I was absolutely delighted for him. He just mentioned that, in the absence of a Northern Ireland Assembly functioning as we would want it, he has had discussions with leaders of political parties in Northern Ireland—that is what I understood him to say—so will he list which leaders of which parties he has had discussions with?

[Mr Lidington]

Parties have all been briefed on the Government’s position and therefore have had the opportunity to put forward their points of view. Obviously, in the absence of a functioning Assembly and Executive in Northern Ireland, we have regular contact with the civil service authorities in Northern Ireland, which are maintaining the administration of Northern Ireland in accordance with Northern Ireland law.

[Lady Hermon]

I am grateful to the Minister for taking another intervention.

I am very disappointed. I sit as an independent, and I take my seat in this House. Sinn Féin Members, seven of them, are absentee MPs. I would be extremely offended if I thought for one moment that the leader of Sinn Féin in Northern Ireland—she is not elected to this House—had been consulted when I had not.

[Mr Lidington]

The hon. Lady and I have known each other for a long time, and having now had overall responsibility for intergovernmental relations and devolution in the United Kingdom for seven days, I am happy to undertake to make it a priority to have that conversation with her to ensure that her views are properly heard.

Government amendments 26 and 27 will replace the current requirements for devolved Ministers to seek the consent of the United Kingdom Government when exercising the correcting power in specific ways with requirements instead to consult the United Kingdom Government. That achieves the same effect as Committee amendment 169, which was proposed by the Scottish and Welsh Governments and tabled in the name of the hon. Member for Cardiff South and Penarth (Stephen Doughty). Having discussed the matter with those Administrations and having listened to the debate in Committee, we have agreed to accept that proposal, with the addition of extending the change to the power by conferring it on the Northern Ireland Executive.

The United Kingdom Government have a vital role in considering the broader consequences for other parts of the UK where devolved Ministers legislate under these powers, and we think this change is justified. It remains important that, in using the conferred power, no action is taken that inadvertently places us in breach of EU law while we are still a member state or that would prejudice or pre-empt the outcome of negotiations; but on reflection, we consider that the devolved Administrations consulting with the UK Government before legislating in these specific circumstances relating to our negotiations will provide a sufficient safeguard and will preserve the autonomy of the devolved Administrations in correcting their laws.

[Patrick Grady (Glasgow North) (SNP)]

Will the Minister give way?

[Mr Lidington]

The hon. Gentleman will forgive me, but there are a lot of amendments in this group and I want to try to do justice to them.

Government amendments 25, 28 and 29 tackle a technical but important issue by allowing the devolved Administrations to use the powers conferred on them by schedule 2 to modify directly retained EU legislation in areas where a common framework is not needed. While we work with the devolved Administrations on where frameworks are or are not needed, we are maintaining existing common approaches to provide much welcomed certainty. To aid that, direct EU legislation that currently applies uniformly across the UK will be corrected at UK level in the first instance to avoid the risk of early, unhelpful divergence in areas where it may ultimately be determined that a common approach should apply. We have listened to the views of Opposition Members, my hon. Friends who represent constituencies in Scotland and Wales, the devolved Administrations and Committees in the devolved legislatures.

Given that the UK Government are committed to making swift progress on the frameworks, we agree that, where a matter is released from the clause 11 competence arrangement, the powers in the Bill should be fully available to the devolved Administrations to modify retained direct EU legislation, and we intend that that will be in the majority of areas. We and the devolved Administrations continue to make good progress in those framework discussions. We intend to agree as many areas as possible where frameworks are not needed in advance of exit day, so that those areas may transfer directly to the devolved Administrations without the need for an intervening period in which to operate the holding pattern described in the clauses.

Like my hon. Friends the Members for Harwich and North Essex (Mr Jenkin), for Ochil and South Perthshire (Luke Graham), for Stirling (Stephen Kerr) and for Aberdeen South (Ross Thomson), I am disappointed that we have been unable to reach agreement with the Governments of Scotland and Wales to make amendments to clause 11 on an agreed basis. That remains the Government’s ambition. When I spoke to the Deputy First Minister of Scotland and the First Minister of Wales a few hours after being appointed to my new responsibilities last week, I emphasised that I was instructing our officials to work with theirs even more intensively to try to achieve that agreement.

The discussions so far have revealed a great deal of common ground between us. For example, we are all agreed that common UK frameworks will be required in some areas even after we have left the EU. That was also recognised in Committee and reflected a shared understanding about protecting the internal UK market, managing common resources and meeting international obligations. But this is a complex area and we need to get it right, and we do not believe that amendments 3, 6 and 13 would achieve that. It is our assessment that in only a minority of cases will we require a legislative framework, in whole or in part.

I can confirm today that the Government will shortly publish our analysis of the areas where frameworks will and will not be needed, so that we are transparent about this progress as our discussions on both clause 11 and frameworks move into greater detail. I also wish to acknowledge the co-operative approach of both the Scottish and Welsh Governments and their officials in working with us towards the right outcome. I have full confidence that we will deliver this Bill with the legislative consent of both the Scottish Parliament and the National Assembly for Wales.

Let me turn to the Opposition amendments. Amendment 3, from the Opposition Front-Bench team, and amendments 6 and 13, standing in the names of the hon. Members for North East Fife (Stephen Gethins) and for Arfon (Hywel Williams), relate to the temporary arrangements established by clause 11, so that we might determine where and how frameworks would operate. The trouble with these amendments is that they would strip away certainty in areas where our citizens and our businesses rely on having common approaches across the UK, and they would pre-empt our framework discussions. They would risk our ending up when we leave the EU with unchecked divergence where common approaches were in place, with no guarantees of if and when they might be re-established. That is simply not good enough. I do not think it right to accept such amendments, which would inadvertently risk creating new barriers to living and doing business right across the UK, however well-intentioned they might be.

[Ross Thomson]

Does my right hon. Friend agree that we have heard a lot of talk about respect between both Governments and that being why we should accept the amendment, but that in not securing Joint Ministerial Committee agreement and in not securing a legislative consent motion this actually shows no respect for that process and is simply a stunt?

[Mr Lidington]

I agree with my hon. Friend.

Let me turn to the amendments from the hon. and learned Member for Edinburgh South West (Joanna Cherry), who again raised the important debate between “necessary” and “appropriate” provisions made under the Bill. Members will not be surprised to know that “necessary” is a very strict legal test. It could be interpreted by a court as “logically essential”, and where two or more choices of law to correct EU law are available to Ministers, arguably neither one is strictly necessary because there is an alternative. So Ministers need to be able to exercise discretion to choose the most appropriate course. For example, if two agencies could arguably carry out a particular function, the UK Government—or in this case the devolved Administration—must propose that which would be the most appropriate choice. That is why we have chosen the word “appropriate” and would wish to stick to that.

The Government remain of the view that the power in clause 7(1) is crucial. We do not take delegated powers lightly, and we want them to be tailored as tightly to their purpose as possible. We have therefore listened to hon. Members’ concerns about the scope of the power in clause 7(1), and in bringing forward Government amendments 14 and 15, we have built on the amendment tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who was supported by my hon. Friend the Member for Weston-super-Mare (John Penrose).

We must ensure that we can correct all deficiencies that may arise from our withdrawal, but our amendments put it beyond doubt that some of the wilder speculation on how powers in the Bill would be used will not be possible, by providing an exhaustive list of the types of deficiency and taking up the constructive suggestion of my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox). That is the act of a responsible Government responding to the debate we have listened to in the House. I hope that—