European Union (Withdrawal) Bill

John Penrose Excerpts

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

[Mr Baker]

I am extremely grateful to my hon. and learned Friend, and I would be happy to meet him, our legal team and my right hon. and learned Friend the Member for Beaconsfield to take their suggestions on board. I am keen to address this, and I know that the Secretary of State is keen to do so, but I am not in a position today to have tabled or accepted an amendment. I ask them to bear with me and have further meetings with us and our legal teams to try to find a way through.

[John Penrose (Weston-super-Mare) (Con)]

The Minister is being very generous and carefully considered in his responses. May I just check what he has said? Is he saying that he intends, if he can, to bring forward an amendment, perhaps on Report, to fix this, after these conversations have taken place, given the sympathy he says both he and the Secretary of State have for the amendments, or is he unable to give that promise to the Committee?

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[Mr Baker]

I think what we would say to the hon. and learned Lady is that “appropriate” will follow the plain English definition, which she will find in various places, but what I want to do is move on.

I want to set out why it is important that the test of appropriateness extends to the use of the power in clauses 8 and 17, to which the right hon. Member for Ross, Skye and Lochaber has tabled amendments 205, 207, 208 and 216. For example, leaving the EU, the customs union and the single market may alter the way in which the UK complies with its international legal obligations in relation to taxation, and there will not always be a clear single choice about how to comply with those obligations. Clause 8 will give Ministers the flexibility, as necessary, to make those changes. Using the word “necessary” would risk constraining the use of the power to the extent that where it is appropriate for the UK to adjust our domestic legislation to ensure compliance with international obligations but where there are multiple ways to do so, we might not be able to ensure compliance with our important obligations under international law, thereby undermining the core intention of clause 8.

[John Penrose]

rose—

[Mr Baker]

I shall be here for some hours if I take too many interventions, but I will give way to my hon. Friend.

[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.

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[Steve McCabe (Birmingham, Selly Oak) (Lab)]

I want to speak briefly in favour of amendments 15 and 49, 132, and 5 and 2, tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve), my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) and the Leader of the Opposition.

I know that many Members in all parts of the House have spent hours battling away on the Bill over the past few weeks, and I am full of admiration for them. I do not remotely pretend that I could compete with their expert knowledge of Europe or the constitution, and I will certainly spend as many hours as I can find poring over the Minister’s brief after tonight’s performance to see whether I can improve my understanding. Despite all this effort, however, all we have really seen are a few nudges and hints from Ministers to date; there has been no real tangible progress in terms of any substantial change to this Bill. That is the most worrying thing about the whole process. It appeared tonight that the Minister was sent out with a brief designed purely to bat away everything put in his way. That suggests to me that the Government are not interested in taking on board the views of Members of this House.

I am choosing to make a contribution at this stage in the debate because I believe that clause 7 is the nub of the Bill; it is certainly the area about which constituents have contacted me the most. That is because it is where we learn whether Parliament is going to be taking back control, or whether we are on the verge of leaving one big bureaucratic union to which many people in this country object—whatever our views, that is one of the reasons why people object—only to hand over unprecedented powers to Ministers in a Government who do not actually have a majority. More than anything, clause 7 is about parliamentary sovereignty and our rights as parliamentarians to represent the interests of the public, especially where they do not coincide with the interests of the Executive. That is what this is really about.

Amendment 15 addresses the fact that clause 7 attempts to define partially and envisage deficiencies that may arise. The right hon. and learned Member for Beaconsfield is right that it makes much more sense to leave this open and hence it is better to say:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate…any failure of retained EU law to operate effectively”,

and simply leave it there. The attempt to go further with a partial list does not help us.

Amendment 49 deals with a similar concern, but is clearer about the fact that delegated powers should be used only when absolutely necessary. Why should we give increased delegated powers to the Executive when we are not convinced of the necessity for them? It is their job to convince us of their necessity. Our job today is to build protection against the risk of a Minister acting excessively.

Amendment 1 makes it clear that, whatever the arguments about taking back control, no one thought when that phrase was used in the referendum campaign that it meant handing excessive powers to Ministers without proper parliamentary scrutiny; and of course, turning to amendment 32, it would be absurd in parliamentary terms if the very delegated powers that the Minister is given in order to amend defects in his plans are then capable of being used to reconstruct the entire Act. The Minister claims that that will not happen, but I was not massively convinced; it was a long performance—there is no argument about that—but I was not convinced. I have recently read Tim Shipman’s book, and I am aware that the Minister has lots of skills and talents, which came to the fore in the lead-up to the referendum. However, I wish I had seen more evidence today of how he goes around convincing colleagues; I did not witness that happening at the Dispatch Box tonight. We have to ask whether we are on a slippery slope. Is this about dismantling parliamentary authority? Is this the start of law-making by Executive fiat and therefore the bypassing of this entire place? If that is the case, that is not what we came here for and it is not what this Bill should be about.

Amendment 5 returns to the fear that existing functions, and therefore rights, could be taken away from the British people in an exercise that is supposed to be about making EU law operable from exit day. That is not the debate that we have been having here, however, and it is not what the Government have been concentrating their energies on. I cannot see how anyone who genuinely believes in parliamentary democracy could be satisfied to see this Bill, and clause 7 in particular, go through unamended. That would be tantamount to our giving up our proper rights and responsibilities.

I know that we will not come to this until another day, but by the same token it would be a total dereliction of duty if we were to make a withdrawal agreement that was not subject to full and proper parliamentary scrutiny and a meaningful vote. Otherwise, what was the referendum for? If all we are going to achieve is a transfer of power from Europe to a bunch of Ministers in a Government without a majority, we will have defeated the whole purpose of the exercise.

[John Penrose]

I sympathise instinctively with an awful lot of fears and analyses expressed by the hon. Member for Birmingham, Selly Oak (Steve McCabe); I speak as a former constitution Minister. I am the No. 2 signatory on six of the amendments tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve)—not quite the total number that he has tabled. I was persuaded and inspired to do that because I was equally concerned that, under the guise of taking back control, we were going to fail to take back control—that Parliament would unintentionally but none the less effectively be an end run if we were not careful.

I have been focusing on two areas. The first is the sifting committee. The second is the scope of the ministerial powers to introduce statutory instruments not only under clause 7 but under clauses 8 and 9, which are obviously linked and which will be discussed and voted on today and tomorrow. For me, and I think for my right hon. and learned Friend the Member for Beaconsfield, the sifting committee has been largely put to bed by the excellent cross-party work of the Procedure Committee, to which I pay tribute.

This might not be to everybody’s taste, but because it is a cross-party Committee, because the matter has been carefully debated and thought through, and because this is a significant step in the right direction, I am certainly willing to back the Committee’s proposal. My right hon. and learned Friend has put his name to the Committee’s amendment: he and I are not minded to press our version, which was based on proposals from the Hansard Society. We are happy not to press that to a vote, and instead to support the proposals from the Procedure Committee.

Incidentally, I must gently and respectfully disagree with the hon. Member for Birmingham, Selly Oak, because I think that the Government’s behaviour over the sifting committee amendments shows that they have given ground. They have accepted some amendments—[Interruption.] He is suggesting that they have given only a small amount of ground, but I think it could be larger than he is giving them credit for. That is because we would otherwise have faced two big problems.

One problem would have been that it is impossible for the Government to predict at this stage precisely what SIs will be introduced. We all know that there will be a large number of them, and we can probably guess what 95% of them are going to be, but we will not be able to guess 5% of them simply because we do not know what is going to be in the final agreements. There will obviously also be other things that are consequential on that that we will discover much nearer the day. Therefore, having a sifting committee of parliamentarians that can be flexible and make proper, balanced judgments of what is important and what needs a higher level of scrutiny is no small thing.

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[Mr Charles Walker]

I thank my hon. Friend for his kind words about the excellent work of the Procedure Committee. Does he accept that one of this House’s great achievements has been the work of Select Committees and the cross-party consensus that they can find and build?

[John Penrose]

I absolutely accept that. Another important thing about the sifting committee will be that many of the other bits of Brexit-related legislation that are starting their journey through this House may contain large numbers of statutory instruments—potentially primary legislation-amending statutory instruments. What we agree for this particular Bill may well be an important template for how we treat those similar powers in subsequent pieces of legislation. We are doing important work here and it is crucial that we do it. I also urge my hon. Friend to broaden out the Procedure Committee’s approach to look more broadly at SI scrutiny powers after all this is done; many of us would encourage him to do that. However, such an approach is perhaps too wide for this Bill right now.

[Sir Oliver Letwin]

Before my hon. Friend moves on from sifting, does he agree that it represents substantial progress that we have heard from the Dispatch Box today that the recommendations made by the Procedure Committee will be respected by the Government in their conduct in the House?

[John Penrose]

Absolutely. Those commitments will be important and consequential, but we also need to ensure that everything gets baked properly into the Standing Orders and that the relevant votes are passed correctly.

Moving on to scope, I think still we have further to travel. A whole slew of amendments—not just the three or four tabled by my right hon. and learned Friend the Member for Beaconsfield that I have put my name to, but those of the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) and others—are trying to address the scope of the powers that Ministers will be given. In fact, Ministers themselves have accepted the principle, saying that they are sympathetic to the idea of trying to limit the scope of the powers. The Minister said that both he and the Secretary of State would like to do that if they could; it seemed to be a question of how, not whether it was desirable in principle.

When I tempted the Minister in an intervention, he also said that the view in the Department is that Ministers want to try to take just enough powers to successfully translate EU laws into British laws and no more. We all accept that there must be no less than the minimum required, but he was clear that Ministers only want to take the minimum. The question is not about the principle of necessity and sufficiency; it is about how that is translated into a legal wording that will allow the principle to be clearly expressed. I gently, but I hope forcefully, say to Ministers that the words in the Bill at the moment do not pass the sniff test for an awful lot of us in the Chamber.

I am extremely pleased, therefore, with the open, positive and constructive way in which Ministers have approached the issue and with the commitment from the Dispatch Box this afternoon to go back and have a further look. I could not tempt the Minister into a firm promise to introduce an amendment, but I think that that is going to be necessary by the time we get to Report if the Bill is to be amended in a way that becomes acceptable and passes the sniff test for most of us here.

The Minister was saying—I paraphrase him—that Ministers accept the principle that the minimum necessary, the necessity test, is the right one in principle, but they cannot find the right words because if they use the word “necessary”, and they have multiple necessities, the courts will interpret that in a way that is unhelpful and does not deliver what everyone wants. The problem Ministers have is that the word that they have chosen instead of “necessary” is too broad and brings in all sorts of other possibilities that give a great deal of concern around the House that Ministers will unintentionally but in practice introduce other powers that they have said this afternoon they do not desire, need or want to give themselves in principle.

[Sir Oliver Letwin]

Is my hon. Friend sure that the source of the problem lies in the term “appropriate”? The more I have listened to the debate this afternoon, the more it has seemed that the problem may come from the word “arising”. Perhaps we need words more like “entailed by”, which would limit the scope of appropriateness.

[John Penrose]

What my right hon. Friend has just demonstrated is the point that I was just about to come on to. We are going to need different words—in the plural—than we have at the moment and the discussions that have been promised from the Dispatch Box, even if an amendment has not yet been promised, will be essential to get the issue right. It is not right at the moment.

During the debate this afternoon, three or four options have already been proposed from the Back Benches, by my right hon. and learned Friend the Member for Beaconsfield, by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) just now and by a couple of others. It is clear that there is no shortage of solutions; it will not be acceptable for Ministers to say, “This problem is too hard so we are going to stick with what we have.” There are enough brains in the room for us to get this right—there are certainly enough on the ministerial Benches and among advisers. So it ain’t going to be good enough for Ministers to say, “We understand the principle and have already accepted it in our remarks today, but it is all too hard and we can’t possibly manage it.” That will not fly.

I have discussed this response with my right hon. and learned Friend the Member for Beaconsfield. We are content, based on what we have heard, not to press the amendments on scope that we have tabled here this evening. However, it will be essential before we get to Report to see some creative alternatives that solve the problems that hon. Members on both sides of the House have alluded to. People on both sides of the House can propose lots of possible solutions. We need to find some that work and make sure that Ministers are content to introduce them in the impressively constructive tone with which they have already addressed the issue of the sifting committee. That needs to be done before Report.

[Deidre Brock (Edinburgh North and Leith) (SNP)]

I speak in support of the amendments to clause 7 in the names of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) and other hon. Members. As my hon. Friend the Member for Edinburgh East (Tommy Sheppard) has already mentioned, they are amendments 264, 222, 73, 233, 234, 239, 240, 266, 269, 272 and 161. They are important because they go to the heart of the debate on democracy—whether so much power in so many important areas should be exercised by Ministers without substantial oversight by Parliament. I have not been reassured by the Minister’s lengthy response.

Particular importance has to attach to protecting the rights of consumers and of workers, and I was disappointed at the Minister’s rejection of the amendments we suggested. We have heard some rumblings from Government Back Benchers and fellow travellers that leaving the EU is an opportunity to strip away protections from workers, consumers and the environment, and to cut supposed “red tape” from manufacturers and producers. The hon. Member for Wakefield (Mary Creagh) reminded us of the previous views of the Secretary of State for Environment, Food and Rural Affairs on this. The Foreign Secretary has also been one of these siren voices in the past, and the Brexit Secretary wrote an article during the EU referendum in which he said:

“The continental response to competition is, rather than trying to compete, to make sure that regulation tilts the playing field in their favour.”

He also said that:

“while the single market may seem like a good idea, in reality it has distorted market incentives, reduced competition and burdened European economies with unnecessary regulations.”

So there are people at the very heart of the UK Government who seriously believe that regulations designed to keep us safe and to prevent us from being ripped off, and regulations to ensure that the environment gets a break and that workers get paid and protected properly, are bad things. There are Cabinet Secretaries of the opinion that these things were invented by European bureaucrats as a weapon against UK productivity—that truly is health and safety gone mad.

I mention the current Government members to make it clear that there is a clear and identifiable danger to our continued safety, to the standards we expect in goods and the services we buy, and to the rights that workers enjoy—and it occupies Whitehall today.

As has been said by other Members, the extent of the power aggregation is such that it would leave Ministers, in effect, changing primary legislation by fiat. This is a coup, a very Tory coup, that is seizing power from this place—the power to create and amend legislation—and centralising it in the hands of a few who would have nothing to do with these protections and who would claim that we did well enough without them before.