European Union (Withdrawal) Bill

John Redwood Excerpts

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

[Mr Leslie]

I do not want to digress at this stage. I want to focus particularly on the powers that Ministers are taking in clause 7, if my hon. Friend will allow me to do so.

[John Redwood (Wokingham) (Con)]

rose—

[Mr Leslie]

I cannot resist.

[John Redwood]

Ministers have assured us that if they want to change policy—if, for instance, they see a need for a new fishing policy, or a new customs and trade policy—there will be primary legislation and full parliamentary debates in both Houses. Does the hon. Gentleman not understand that? We are dealing with a very narrow set of provisions, relating only to statutory instruments to deal with technical matters which, of course, the House can ultimately determine in any event.

[Mr Leslie]

It is touching that the right hon. Gentleman takes those assurances from Ministers at face value, but the Ministers may not be here for very much longer. Who knows? If we are going to make policy changes, that should be done in a Bill that comes before Parliament, or in a statutory instrument subject to affirmative resolution.

I now invite Members to pick up their copies of the Bill, because I want to deal with a couple of provisions in clause 7 which I think contradict the understanding of the right hon. Member for Wokingham (John Redwood) of the scope of the order-making powers that are being taken. It is, in fact, fairly wide. Clause 7(4) states:

“Regulations under this section may make any provision that could be made by an Act of Parliament.”

In other words, a provision in a statutory instrument could have the same effect as one in primary legislation.

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[Sir Oliver Letwin]

The hon. Gentleman is a doughty defender of his party interest and of the House of Commons. On this occasion, if such an assurance is given from the Dispatch Box and if the advice of the committee is not followed, people on both sides of the House will cause a sufficient fuss to ensure that the House does have the opportunity to debate instruments under the affirmative procedure.

[John Redwood]

Will my right hon. Friend clear up one other uncertainty created by the hon. Member for Nottingham East (Mr Leslie)? Is it not the case that the powers that we are debating are strictly time limited to two years from the date of departure? This is not a long-term issue.

[Sir Oliver Letwin]

One of the most striking moments of hyperbole was when the hon. Member for Nottingham East asserted that the situation would last for many years. He will of course know, as my right hon. Friend the Member for Wokingham (John Redwood) points out, that the provisions are sunsetted.

--- Later in debate ---

[Matthew Pennycook]

I could not agree more with my hon. Friend. That is why strengthened scrutiny procedures for approving secondary legislation made under this Bill are so important, and it is also why long-standing conventions must be honoured, so that in the rare cases where the Committee might recommend an SI be subject to the negative procedure but the Opposition disagrees, there is a chance to bring the matter before Committee.

[John Redwood]

This debate is very important. As someone who wants this Parliament to take back control on behalf of the sovereign British people who voted in that way in the referendum, I can see that there is an irony in this debate. We hear that a number of Opposition Members are very worried that Ministers will have too much power as a result of this legislation, but by the very act of our having this debate, and in due course the votes, on how we should proceed, I think that we are demonstrating that, indeed, Parliament is taking back control. The purpose of these debates today and tomorrow and the subsequent votes will be for Parliament to set a very clear framework within which Ministers will have to operate.

We are, after all, debating how we translate a very large burden of existing European law into good United Kingdom law in order to ensure continuity and no change at the point when we exit the European Union. This is a task that unites people of all political persuasions, whether they were in favour of leave or remain, around the need for legal certainty. We all see the need to guarantee that all that good European law under which we currently live will still be there and effective after we have left.

We also agree something else: some of us do want to change some of those laws. I want to change the fishing law very substantially, because we could have a much better system for fishing in this country if we designed one for ourselves. We will probably need to amend our trade and customs laws, because as we become an advocate for and an architect of wider free trade agreements around the world, that is clearly going to necessitate changes, which we think will be positive. I think we all agree that where we want to change policy—to amend and improve—we should do so through primary legislation. As I understand it, Ministers have agreed with that. I am sure that this House is quite up to the task of guaranteeing that Ministers will indeed have to proceed in that way, so that we know that when they wish to change—amend, improve or even repeal—policy, they will need to come through the full process of asking for permission through primary legislation.

Today we are talking about the adjustments, many of which are technical, that need to be made to ensure the continuity of European law when it passes from European jurisdiction to the jurisdiction of the United Kingdom Parliament and courts. Ministers will obviously play up the fact that they think most of these matters will be very technical, such as taking out the fact that the UK is a member of the European Union when we exit and rewriting the legislation to point out that we are no longer a member of the European Union, or decreasing the number of members states by one from the current number if they are referred to in the regulation. More difficult will be the substitution of a UK-based body for a European body to ensure proper enforcement. Many of us see that as largely technical, although there may be wider issues. This Parliament is now properly debating how much scrutiny that kind of thing would require.

We have three possible models to ensure parliamentary sovereignty over any of these processes. The weakest is the negative resolution procedure, whereby Ministers will have to make a proposal for technical changes to the law, and Parliament will have to object and force a vote if it wishes to. The middle model is the affirmative resolution statutory instrument, whereby Parliament will have a debate and a vote; Ministers would make a proposal and we would have a vote. In some cases, we might even conclude that we need primary legislation, as it appears we are deciding with the issue of animal welfare. In that case, we wish not only to transfer the European law but to ensure that it is better in British law, so that will need primary legislation.

Today we are debating how to determine which of those processes are appropriate for each of the different matters that arise. A lot of items will definitely be in the technical area of rather minor changes just to ensure that things work smoothly, which is what I thought the Government were trying to capture in clause 7. We have heard from Opposition Members who think that the clause goes too far and will allow the Government to elide matters from the category of technical changes to the category where there are more substantial changes going on, and still leave us with the negative resolution procedure. I am not as worried as some Opposition Members. The power under the clause is a two-year power only, so it is clearly related to the translation and transition period, which I find reassuring. There are also clear restrictions in clause 7(6) on Ministers changing taxes, inventing criminal offences and all those kinds of things, because they would obviously require primary legislation. We need to continue our debate on whether those two lists—the list of permissive powers and the list of restrictions—are the right lists.

[Chris Bryant]

I have been listening very carefully to the right hon. Gentleman. He is resting on the word “technical”, which he has used repeatedly, but that is not what the Bill says. If the Government had come forward with something saying that they will only be able to use secondary legislation in technical changes, we might have been interested in looking at it. But that is not what it says; it is a widely drawn list. The right hon. Gentleman may well have perfect confidence in the Under-Secretary of State for Exiting the European Union, the hon. Member for Chipping Wycombe. Sorry, he is the hon. Member for Wycombe (Mr Baker)—[Laughter.] Well, the constituency used to be Chipping Wycombe. The right hon. Member for Wokingham (John Redwood) might have confidence in this particular Minister, but it may one day be another Minister. I suspect that the right hon. Gentleman thinks that the Leader of the Opposition is a Marxist revolutionary in a Venezuelan style. Well, he might yet be a Minister who will be making precisely these decisions, and that is why we should always legislate with caution.

[John Redwood]

I am intrigued to hear that characterisation of the hon. Gentleman’s leader; it is not a phrase that I have ever used in this House. I find that very interesting, but I do not want to take the conversation into that party political realm.

We are trying to explore the proper constraints and controls to put on Ministers through this primary legislation, which will drive our democratic processes for this transfer of law. I look forward to hearing the Minister’s response because I want reassurances—of the kind I think he will be able to give me—that this power is well meant and is designed to prevent Parliament from being clogged up with literally hundreds of rather minor drafting changes. Such minor changes are simple consequences of going from being a member to being a non-member that we do not need to worry about too much, so we need somebody to do them for us. The Bill says that Ministers are going to do it for us. Various Members are a bit sceptical about that for some surprising and interesting reasons, such as that we have just heard. There is also a suggestion, which has a lot to recommend it, that there be a sifting mechanism so that Parliament is involved in the process and can say to Ministers, “We do think this matter is a bit more than technical, so we cannot have the negative resolution procedure. This has to be a proper debate and a proper vote in order to preserve parliamentary process.”

[Mary Creagh]

On that point, does the right hon. Gentleman think that the draft Animal Welfare (Sentencing and Recognition of Sentience) Bill, which was published today, is a technical measure or something that merits scrutiny on the Floor of the House—and, ditto, the new environmental body that has been proposed by the Secretary of State for Environment, Food and Rural Affairs?

[John Redwood]

As I understand it, that decision has been made for me. I have not yet had the advantage of reading the draft Bill, so I cannot give the hon. Lady my personal view, but the Government’s view is that it is primary legislation. They think that even though that Bill is reaffirming practices in European law, because the Government think that it is going a bit further than European law, they have quite properly said, “We must make this primary legislation.” The example makes my case rather well that the Government are being cautious because they are trying to reaffirm and go a bit further than European law, probably in a direction that most people in the House would be entirely comfortable with. But the House will have the benefit of going through the full processes of primary legislation. I hope that there will be other examples like that, where Ministers recognise that there could be changes of substance that will warrant either primary legislation or a statutory instrument.

I do not want to take up too much time because many people wish to speak, but I would like to pick up on something that the Labour Front-Bench spokesman, the hon. Member for Greenwich and Woolwich (Matthew Pennycook), started to mention and which I found very interesting. He drew our attention to the way in which we handle statutory instruments in the House in general. There are occasions when it is a weakness of our procedures that we cannot amend a statutory instrument, and we need to think about this for the future. This issue does not arise just from the transfer of European law; it goes to the fundamental business of how we generally exercise control and ensure that legislation works.

I remember being on a statutory instrument Committee under the previous Labour Government for an SI to regularise a series of payments to councils because the Government had been a bit late in giving themselves the legislative permission to make the payments—there was a surprise. I realised as soon as I read it that somebody had put in the statutory instrument the full amounts of money involved, and someone else had come along and put, “£millions” across the top of the table, so we were actually invited to vote six extra noughts on every figure going to the councils.

I am a generous man, but I thought that that was a bit excessive because it meant that the sums were probably bigger than the GNP of the country. If not, they were certainly approaching the GNP of the country in a rather alarming way. I was regarded as a bit of a nuisance for pointing this out because there was absolutely no way of correcting the figures. The Committee just had to sit and enact the statutory instrument as it was, even though it was clearly laughable, giving far too much cover for payments and not acting as a proper control. That is a minor example, but it shows that there are occasions when Ministers make mistakes and when it would be quite helpful if there were some kind of correcting procedure.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

My right hon. Friend is making an important point because he is exposing the very fact that, despite the fine occupant of the Front Bench today, one cannot be 100% certain of the quality of the procedure that is being carried out from the ministerial office. This House is fundamentally the custodian of the public purse and the taxpayers’ money, and we must be absolutely certain that no cheques are blank and signed and left on Government desks.

[John Redwood]

I am glad we agree about that. I am trying to make a helpful suggestion for the future on this issue and a wider issue to which we need to return at some point. We need a system that establishes parliamentary control—as I have explained, all the methods we are discussing today are parliamentary control of one form or another—but we may need to think about how we improve processes for the future when that control is a statutory instrument.

[Mr Grieve]

My right hon. Friend is making some important points. If I may say, I have signed up to the amendments tabled by the Procedure Committee because they are a reasonable compromise, but they are most deficient in the absence of a revision mechanism to ask a Minister to reconsider. My right hon. Friend may agree that, even at this stage, those on the Treasury Bench could go away, reconsider the issue and bring a further amendment forward on Report to deal with it.

[John Redwood]

That may be hanging a bit too much on this piece of legislation. I think this is a wider issue, which Parliament may need to consider, so I was not going that far in my recommendation. However, Ministers would be well advised, if by any chance they did make a mistake in a draft instrument, not to do what the previous Government did and just drive it through, but to accept that they needed to withdraw it and to come back with a corrected version, which would make for better order.

The Bill as drafted, with the amendments to provide a process to make the task of parliamentary scrutiny manageable, is a perfectly sensible package, and I look forward to hearing sensible promises from Ministers on the Front Bench, who I am sure will want to exercise these powers diligently and democratically.

[Tommy Sheppard (Edinburgh East) (SNP)]

I rise to speak to amendments 264, 222, 73, 234, 239, 240, 266, 269 and 272, in the name of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford), and amendment 233, in the name of my hon. Friend the Member for Airdrie and Shotts (Neil Gray). I will also speak in general terms to amendments 206, 268, 271, 274, 216, 265, 207, 208, 205, 267, 270 and 273, in the names of my hon. Friends, which are grouped for debate today, but which will be voted on tomorrow. May I also say that I hope the hon. Member for Cardiff South and Penarth (Stephen Doughty) will push his amendment 158? It was debated earlier in Committee, but it is very germane to this debate. [Interruption.] I read that list out because I could not possibly memorise it.

As I said on Second Reading, we are in a dilemma of our own making. We are discussing the possibility that all these powers should be given to Ministers simply because we have not adequately prepared for the process of leaving the European Union. It is three months now since Second Reading, and we do not appear to have gone one step forward in terms of knowing what the effects of that process will be on the body of legislation that already exists in the United Kingdom.