European Union (Withdrawal) Bill

Gary Streeter Excerpts

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

[John Penrose]

I will endeavour not to try my hon. Friend’s patience too much; he is being very generous. I want to clarify one point. I think that his previous response on the difference between “necessary” and “appropriate” will have suggested to the plain non-lawyerly listener that he was accepting the principle that there should be no greater powers than are necessary to ensure that EU law is ported across correctly, and that the only argument he is making is that there might then be a legal interpretational problem when he has more than one choice. Will he at least confirm that he does not wish to bring in, for himself or for any other Ministers, powers that are higher than “necessary” as a basic principle, and that he will therefore try to find words that will give him that minimum level of—

[The Temporary Chair (Mr Gary Streeter)]

Order. This is a rather long intervention, and the Minister has made it clear that he does not wish to take too many more interventions as he is seeking to make progress.

[Mr Baker]

I am grateful to my hon. Friend the Member for Weston-super-Mare for putting his own clarification into my remarks.

The Government wish to take the minimum powers necessary—the minimum powers required—to do the job before us, which is to deliver a working statute book by exit day. We do not intend to make any major changes of policy beyond those that are appropriate to deliver a working statute book, where the law after exit day is substantially the same as the law before exit day, so that individuals and businesses can rely on it. The issue surrounding the definitions of “necessary” and “appropriate” is a technical and legal one, rather than a general issue of intent, and I stand by what we have said. We understand that “necessary” would be interpreted as logically essential and could land us with the problem that I have illustrated, with Ministers facing a number of choices about how to proceed. So if I may, I will leave that issue there.

The use of the word “equivalent” in new clause 24 is just as problematic. Returning to the example of a reciprocal arrangement that no longer exists, if we were —with the support of this House and entirely appropriately in line with our agreements with the EU—to end the obligations that were placed on the UK in law, this new clause could lead to a court taking the view that that would not be keeping the equivalent scope, purpose and effect of the law in relation to how the law stood before exit. This would undermine the Bill’s core objective of maintaining a functioning statute book once we leave the EU. I therefore urge right hon. and hon. Members not to press their proposed amendments, and the hon. Member for Brighton, Pavilion (Caroline Lucas) to withdraw her new clause.

I now want to address new clauses 1, 6 and 26, and amendments 33, 35, 36, 38, 39, 41, 68, 129 and 130, tabled by the Leader of the Opposition and others. These would all change the scrutiny process for secondary legislation made under the Bill. We have heard some fine speeches from distinguished parliamentarians, and it is clear that a great deal of thought has gone into the amendments and the arguments supporting them. First, let me be clear that we are committed to appropriate parliamentary scrutiny throughout the whole process of our withdrawal from the EU—Members will know that we make statements, Committee appearances and so on—and, as my right hon. Friend the Prime Minister has already made clear, Parliament will have a vote on the contents of the withdrawal agreement. Crucially, where we are seeking not to replicate current arrangements but to take substantially new approaches, there will be separate pieces of primary legislation for Parliament to work through, as we are beginning to see with the legislation that is being introduced.

However, we must be mindful of the large volume of statutory instruments necessary and the limited time available to work through them if we are to provide certainty and stability on exit. We are working to the timetable of the article 50 process, and there is over 40 years of EU law to consider and correct to ensure that our statute book functions properly on our exit from the EU. According to EUR-Lex—the EU’s legal database—more than 12,000 EU regulations and over 6,000 EU directives are currently in force across the EU. If the majority of statutory instruments do not complete the parliamentary process before we leave the EU, there will be significant gaps in domestic law, which could raise real problems with real consequences. Our law currently gives powers to EU regulators across a wide range of areas that affect people’s lives, from aviation safety to the environment, and we therefore have a duty to act.

New clauses 1 and 26 and amendments 33, 35, 36, 38, 39, 41, 68, 129 and 130 would all give a parliamentary committee or either House of Parliament the role of deciding the scrutiny procedure that each statutory instrument must follow. We are sympathetic to the intention behind the amendments, which is why we made our announcement in relation to the Procedure Committee’s recommendations. All that is in harmony with the existing arrangements for the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee in the House of Lords.

Amendments 34, 37 and 40, tabled by the Leader of the Opposition, would apply the affirmative procedure to a statutory instrument of sufficient policy interest, which is ambiguous and does not involve a practical, clear trigger for the affirmative procedure. Ultimately, it would end up being for the courts to decide what is “of sufficient policy interest”, creating legal uncertainty, which is contrary to the Bill’s central aim. I hope that Opposition Members will agree that that has been superseded by our commitment to the sifting committee.

Amendment 22, tabled by the hon. Member for Rhondda (Chris Bryant), would introduce a means for the Leader of the Opposition or a certain number of MPs to trigger an automatic debate on an SI made under the negative procedure. Again, I hope that the hon. Gentleman will accept that that has been superseded by the sifting committee.

I will now address several amendments relating to the important matter of environmental protection, on which this Government have a proud record. Amendments 96, 97, 98, 138, 333 and 334 and new clauses 27, 62 and 63 were tabled by the Leader of the Opposition and others. We agree with the intentions behind the amendments and new clauses and understand hon. Members’ concerns, but it is essential that the clause 7 power exists as drafted in the Bill. Its purpose is to make changes, often of a technical nature, to deal with deficiencies in retained EU law. While simple in nature, it is essential to ensuring that legislation that protects the environment and rights remains consistent and continues to function effectively once we leave the EU.

Turning to new clauses 27, 62 and 63, the UK has always had a strong legal framework for environmental protections, and that will continue. My right hon. Friend the Secretary of State for Environment, Food and Rural Affairs has recognised the risk of the governance gap, which has been explained, and that is why he announced on 12 November our intention to consult on a new independent and statutory body to advise and challenge the Government, and potentially other public bodies, on the environment, stepping in when needed to hold bodies to account and to enforce standards. We will consult on the specific scope and powers of the new body early next year. We understand the intention behind the new clauses, but they would create problems for our framework of environmental governance, about which we have made announcements.

New clause 27 would go further than the existing governance mechanisms for environmental protections set out in EU and UK law. For example, it would require the Government to give powers to this new independent body or bodies to set standards or targets and to co-ordinate action on the environment. Within the current EU mechanism, the exercise of those powers, such as legislating to set standards, would typically involve the Council of the European Union and the European Parliament; it does not normally rest solely with an independent body or bodies. Legislating for new standards and targets should be a matter for our Parliament in future.

New clause 62 would prejudge the consultation’s outcome and would necessarily limit the possible remit of a new body by requiring that it be established by regulations under clause 7. This power for functions currently exercised by EU institutions could be replicated by being given to UK bodies to exercise. Therefore, for example, significant domestic changes to the law post EU exit or new areas of the environment would fall outside its remit.

While we support the intention behind amendments 97, 98, 96, 138, 333, 334 and new clauses 62 and 63, they give no definition of what an environmental protection is or precisely how one might know that such protections were being weakened or narrowed. We believe that the hon. Members would be preparing the starting gun for a vast quantity of litigation so we cannot accept the amendments to clause 7, 8 or 9 or the new clauses.

Allow me to reiterate, Mr Streeter. Clause 7 powers are temporary powers limited in scope. Restricting the use of those powers further, as many of the amendments seek to do, would threaten rights and protections established in domestic and EU law, which we will be retaining. This is contrary to what I believe is the intention behind many of the amendments, so restricting the power as proposed would be counterproductive and we cannot accept the amendments.

Amendments 25, 26, 27, 52, 109, 111, 115, 266, 268, 267, 222, 363 to 373 and new clause 76, plus those amendments consequential on them, deal with the protection of rights in relation to the power in clause 7 or parallel restrictions in clauses 8 and 9. The UK has a long tradition of ensuring that our rights and liberties are protected domestically and of fulfilling our international human rights obligations. The decision to leave the EU does not change that. I reiterate the Government’s firm commitment to protecting rights throughout the EU exit process. As we have debated previously, the Bill ensures that, so far as possible, the laws we have immediately before exit day will continue to apply. As part of this approach, clause 4 will continue to make available any rights and so on which currently flow into domestic law through section 2(1) of the European Communities Act 1972 within the overall scheme of the Bill.

Moreover, the clause 7 power is already restricted so that it cannot amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it. The restrictions sought by amendments 25, 109, 363 and 364 are therefore not necessary. I am aware that amendments 365, 26, 366 and 367 would place the same restrictions on the powers in clause 8. The clause 8 power is already restricted so that it cannot amend, repeal or revoke the Human Rights 1998 or any subordinate legislation made under it. The restrictions sought by amendments 365 to 367 are therefore not necessary.