European Union (Withdrawal) Bill

Kate Green Excerpts

Committee: 2nd sitting: House of Commons
Wednesday 15th November 2017 Commons Chamber

[Dominic Raab]

Perhaps shortly, but I am going to make some progress now, because I am hearing censorious noises from the Chair and I want to respond very obediently to them.

I turn to amendment 70, in the name of the right hon. Member for Ross, Skye and Lochaber (Ian Blackford). I think the sentiment behind the amendment is laudable, but I reassure the House that the amendment is unnecessary for the protection of rights. In fact, it is potentially counterproductive. Clause 4 will save all the directly effective rights that arise under the EU treaties to the extent that they are available now; that is the point that I wanted to get across to the hon. Member for North Down (Lady Hermon). We have deliberately not included a list of those directly effective rights in clause 4 or in the rest of the Bill, because there is no single, comprehensive and reliable list of all directly effective rights in the EU treaties. They are not set out in legislation—UK, EU or otherwise—but they are determined by the courts. Our approach is therefore based on procedural as well as substantive legal continuity.

The explanatory notes to the Bill set out a list of the articles from the treaty on the functioning of the European Union that the Government consider to contain directly effective rights, which will remain available in domestic law following our departure from the EU. That list, which includes article 157 on the right to equal pay, is intended to be illustrative of some of the rights that will continue to be available under clause 4. If we were to define a single list—especially if it was a non-exhaustive one—and legislate for it, we would inevitably run a significant risk of inadvertently omitting or mis-stating rights that individuals and businesses rely on, or suggesting to the courts that those rights were supposed to have a special status beyond the ones that were not listed.

We can reasonably expect individuals and businesses to want to rely on any list that we produced. Quite reasonably, they may not realise that they can rely on a wider set of rights that are not on any such list. The effect of amendment 70 would be at best to create legal uncertainty, and at worst—this is my concern—to mislead people about the rights available to them. The Government do not want that to happen, and I hope that I have persuaded the hon. Member for Airdrie and Shotts (Neil Gray) not to press the amendment.

I want to turn as briefly as possible—I will not take any further interventions to allow others to speak—to amendment 148, in the name of the hon. Member for Stretford and Urmston (Kate Green), who is in her place. It is important that the issue of children’s rights has been raised through the amendment, and I hope I can give her some reassurance. Most importantly, I want to reassure the Committee that the UK’s commitment to children’s rights and the UN convention on the rights of the child is and will remain unwavering. Our ability to support and safeguard children’s rights will not be affected by UK withdrawal from the EU.

Domestically, the rights and best interests of the child are protected in England primarily through the Children Act 1989 and the Adoption and Children Act 2002, as well as in other legislative measures. Scotland, Wales and Northern Ireland have their own measures for the protection of children’s rights, in accordance with the UN convention on the rights of the child.

The UK will of course continue to be a party to the UN convention, but amendment 148 is flawed in seeking to apply an EU principle of direct effect to a global UN treaty, which is of course governed by general principles of international treaty interpretation under the Vienna convention and customary international law. I am afraid that that is a recipe for legal confusion.

In any event, we already give effect to all our international obligations under the UN convention. For example, the Children Acts 1989 and 2004 set out a range of duties to safeguard and promote the welfare of children. In 2013, we issued statutory guidance to directors of children’s services, which requires them to have regard to the general principles of the convention and ensure that children and young people are involved in the development and delivery of local services. The Children and Social Work Act 2017 is a further example of how we constantly seek to make sure that we not only protect children’s rights but enhance them.

[Kate Green (Stretford and Urmston) (Lab)]

The Minister says that we already have a number of vehicles to ensure that we give effect to our obligations under the UN convention, but does he not accept that we have had cases in this country of decisions by the courts saying that legislation that is not compatible with the convention is, none the less, not unlawful?

[Dominic Raab]

As I have said, we continue to keep these matters under review. If there is a court decision, we will obviously comply with it, whatever it is. I suggest that her amendment would not meaningfully or practically enhance such rights. If what she wants to do is outside the scope of this vehicle—the snapshot that we are taking of EU law and reproducing in UK law—she should make the case for further innovations. She is of course at liberty to do so, and I would expect her to do so.

--- Later in debate ---

[Kate Green]

I rise to speak to amendment 148 and the other amendments and new clauses in my name, which relate to the rights and interests of children. Most of the debate this evening has not concentrated on that important group of people, who will be affected significantly by this legislation, and many hon. Members will share my deep concern at the shockingly limited amount of time we have been given over the debates on the Bill to attend to such vital matters.

The decision to leave the European Union and the manner in which it is done could not be of more importance for our children and young people. They are the generation who will live with the consequences of our decisions, yet they did not get a say in them, so we have a special responsibility in this place to make sure that we put their interests at the heart of this legislation.

My amendments and new clauses seek to place that responsibility on a statutory footing and to remedy the constitutional gap that will otherwise arise in relation to children’s rights when we leave the EU. They take as their basis our existing commitments as a signatory to the UN convention on the rights of the child, which is itself the basis of the EU law and rights framework that applies to children.

The Government said that rights and obligations in the UK should, where possible, be the same after we have left the EU as they were immediately before we leave. I heard what the Minister said, and I will reflect on it: he believes that other provisions in UK domestic law will serve to continue the protection that is currently in place through EU law and its relationship to the UN convention. However, I do have concerns, and although I do not intend to press my amendments and new clauses to a vote tonight while I consider the Minister’s position, I hope that he will consider some of those concerns, particularly in relation to the Henry VIII powers. Those powers mean that amendments could be made in future to the rights currently enjoyed by children and that those rights would not necessarily be properly protected, as they are now, by the UN convention.

We have seen a number of EU instruments enacted that have conveyed direct entitlement for children on a whole range of issues, from migration, child protection, health and safety, medicine, and access to social and economic rights, to family breakdown. Some of those rights have been conferred under directives that have been partly implemented and incorporated into UK law. Nevertheless, the missing bits of the directives can be automatically accessed by children because of our membership of the EU and because the constitutional underpinning to the EU rights framework for children is that the UNCRC is followed in EU law. We see that in the treaty on European Union and in the charter of fundamental rights, which impose a constitutional obligation on member states to adhere to children’s rights standards when implementing EU law.

The position in the UK, however, is somewhat different. Although the UK has ratified the UNCRC and therefore remains bound by it, the UNCRC is viewed merely as an interpretive tool for other human rights instruments and the common law, which are directly justiciable in the UK. There is no explicit constitutional commitment to children’s rights in the UK at central Government level. Instead, our children’s rights framework relies on a combination of domestic legislation, as the Minister said, of directly applicable EU law and regulations, and of interpretation of those measures in the light of our obligations under the UNCRC and other treaties.

That gives rise to a number of concerns about the protection of children’s rights post Brexit. Unlike the Court of Justice of the European Union, the UK courts and tribunals, particularly at first instance, are largely resistant to drawing on the UNCRC or the EU charter to interpret domestic obligations. All evidence to date reveals patchy compliance with the provisions of the convention, and the UK’s human rights instruments, such as the Human Rights Act 1998, do not provide full protection for children—as we saw, for example, in the recent Supreme Court case of SG, where it was found that, despite being in breach of the UN convention, national law could breach children’s rights and still not be unlawful.

This incomplete coverage calls children’s rights into question in future when EU law is either not fully transposed or where the Bill will enable the Government to modify legislation post Brexit. That is a concern, for example, where national law is silent on the implementation of specific positive obligations, and where the absence of comprehensive protection for children across UK domestic law means that children will face gaps in their rights. Even if transposition is complete, the Bill will allow the Government to modify legislation in ways that might not conform with international obligations, without further scrutiny.

This is also a concern in relation to trade deals. Under current EU law, the free circulation of goods and services between member states has to be balanced against the need to subject such goods and services to sufficient scrutiny with a view to protecting the welfare of children who may be exposed to them. As the UK embarks on new trade deals, particularly if it withdraws from the customs union, we will need a comparable mechanism to ensure that any new trade deal includes sufficient safeguards for children who will be exposed to foreign products and services.

There are questions in relation to children’s residence and citizenship status. EU law requires that any decisions on residence and status must take into account the best interests of the child. The continuing lack of clarity in relation to the position of EU citizens, including EU child citizens, in this country is deeply troubling. Serving the best interests of children should not mean that their rights are dependent on the rights of their parents, but without a clear instrument for protecting children’s rights and interests post Brexit, they could be so dependent.

Given the range of potential gaps in the domestic legal framework for children’s rights, direct incorporation of the UNCRC into domestic law would provide sturdier protection against any diminution in children’s rights under EU laws following Brexit. Amendment 148 therefore seeks to preserve after our withdrawal from the EU any rights or obligations arising from the UNCRC. It would ensure that the rights that children have previously been able to rely on before the CJEU do not become illusory in the absence of an explicit UK constitutional commitment to children’s rights in future.

Amendment 149 would ensure that new legislation introduced by Ministers to deal with deficiencies arising from withdrawal would have to be UNCRC-compliant. Amendment 150 makes a similar provision in relation to regulations introduced by Ministers for the purposes of implementing the withdrawal agreement. New clauses 34 and 36 would require public authorities to act compatibly with the UNCRC after exit day. New clause 34 would also require a child rights impact assessment to be conducted.

In summary, my amendments would ensure that additional powers afforded to Ministers in this Bill do not contravene our international obligations. They would place on a statutory footing the Government’s undertaking to protect the same rights that children have on leaving the EU as they have before we leave. They demonstrate that the UK fully recognises the importance of children’s rights and the seriousness with which we take them.

[James Heappey (Wells) (Con)]

It is a pleasure to follow the hon. Member for Stretford and Urmston (Kate Green). I am conscious that other Opposition Members still wait to speak, so I will try to keep my remarks quite brief.

New clauses 60 and 66, while I do not support them, demonstrate that there is a real consensus across the Committee about the requirement to maintain EU environmental standards beyond Brexit. Those standards are a good thing and they have done good things for our environment. Colleagues on both sides of the House have been very thoroughly briefed by, among others, Greener UK. I can report that the response to that briefing among Conservative Members was very enthusiastic, as I am sure it was among Opposition Members. The disagreement is not about what we are trying to achieve but exactly how it is to be achieved. There is no doubt that the Bill will not provide the environmental protections that we would wish, but that does not necessarily mean that there is a requirement for amending it.

The Government are already demonstrating great credentials on the environment. I hope that the ban on microbeads, the consultation on single-use plastics and the clear action plan on clean air will reassure colleagues on both sides of the House that the Government have a clear commitment to raising environmental standards in the UK, not just because we are subject to EU laws but because we seek to create the very best environmental conditions for our country. I understand the Opposition’s cynicism and perhaps scepticism and therefore why amending the Bill seems so appealing. In reality, the Secretary of State for Environment, Food and Rural Affairs has indicated that legislation for environmental protection is forthcoming, and I think that that resolves the matter somewhat.

I support keenly the proposal by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) for a national policy statement, at the suggestion of which the Secretary of State nodded enthusiastically when he was in the Chamber. The NPS will expand on and explain in a UK context the principles committed to in article 191 of the Lisbon treaty, and it will clearly set out the Government’s policy on those matters. It is a good way to proceed, and it arguably provides more than the amendments would do, if we accepted them.

I agree with my right hon. Friend the Member for West Dorset that there must be an independent body to enforce those principles, and I was heartened to see the Secretary of State nodding enthusiastically when my right hon. Friend talked about the need for such an enforcer. Such a statutory body—independent, funded and with teeth—which could to take the Government and others to court, would be most welcome and exactly what we need.

We have gained a great deal from being subject to EU environmental law. It has raised standards and made our beaches, coastlines and rivers far cleaner than they used to be. In my constituency, it was announced yesterday that the bathing water quality in Burnham-on-Sea had again fallen just short of the EU standard. Although some people in my constituency might argue that that is an excuse to leave the EU, abandon those standards and say that they are no longer an issue, I disagree. We should expect to have the cleanest possible beaches. We have been set those standards, and we should seek not only to achieve them but to exceed them.

We should remind ourselves that just because we are leaving the EU it does not mean that we are turning our back on the standards that have led to such environmental improvements while we have been in it. Given the Government’s success in pursuing an exciting environmental agenda right now, we can be enthusiastic—thanks to the national policy statement and the support of a body that will help to hold the Government to account for their delivery of environmental principles—about the fact that we will be able to do far better than the EU standards when we set those standards for ourselves.

European Union (Withdrawal) Bill

Kate Green Excerpts

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Mr Leslie]

Absolutely. We might hear a different argument from Ministers, but traditionally the Government’s argument has been, “Don’t worry about the charter of fundamental rights; it doesn’t have any effect, it isn’t necessary and we can do without it because it is already there in British law.” It is rather like what the right hon. Member for New Forest West (Sir Desmond Swayne) said in his intervention. Of course, if that is the case, why are the Government deliberately excising it from UK law, and why would they resist new clause 16? The new clause does not even require the charter to be retained—I happen to think that it should be retained—but simply states that Her Majesty’s Government should lay before Parliament within one month of Royal Assent a review of the implications of removing it.

[Kate Green (Stretford and Urmston) (Lab)]

Does my hon. Friend agree that one advantage of the new clause is that we could explore properly the impact of losing the access that the charter gives to UN conventions, for example on the rights of persons with disabilities and on the rights of the child, which currently are not fully incorporated into UK law? We will therefore lose the way in which they are currently accessible through the charter.

[Mr Leslie]

Indeed. We need a far more detailed analysis from Ministers of the consequences of deleting the charter of fundamental rights, which are potentially myriad and far ranging. I pay tribute to my hon. Friend for her tireless campaigning on children’s rights. She has tabled several amendments in relation to the UN convention on the rights of the child, and she will know that many non-governmental organisations that campaign for children’s rights, the Children’s Society in particular, have several anxieties about the deletion of the charter of fundamental rights and the lack of clarity that would exist around protecting children, who are sometimes in vulnerable circumstances.

European Union (Withdrawal) Bill

Kate Green Excerpts

Committee: 8th sitting: House of Commons
Wednesday 20th December 2017 Commons Chamber

[Mr Leslie]

The right hon. Lady and my hon. Friend the Member for Wakefield (Mary Creagh) are right to focus on supply chains. The tariff could be a problem. Who knows what that would be—3%, 4% or 5%—if we fell back on the World Trade Organisation? Think of the disruption to business planning. A lot of firms would almost need to have an insurance policy at their disposal for the warehousing just to cope with the flows. We could be on the brink of many manufacturers fundamentally having to move away from the just-in-time business models that they have developed; it is almost like “RIP JIT” in this circumstance. We could almost see a whole new business model—we could be stepping back into the 20th century and earlier—if we get this wrong.

[Kate Green (Stretford and Urmston) (Lab)]

I am grateful to my hon. Friend, and indeed to the right hon. Member for Broxtowe (Anna Soubry), for drawing attention to this wider point, which greatly troubles manufacturers in my constituency, in particular. As things stand, they manufacture and ship immediately to customers in other parts of the European Union. We have a huge shortage of available space for new warehousing facilities in Greater Manchester, and it is really important that the Government understand that wider context—it is not just a question of problems at the ports.

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[Robert Neill]

It is a pleasure to see you in the Chair, Sir David. I start by associating myself with the condolences of the hon. Member for Wakefield (Mary Creagh) to the right hon. Member for Chorley (Mr Hoyle) and his family. He is greatly regarded by every one of us across the Chamber, I am sure.

I pay particular tribute to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). I listened to his speech, as I did to pretty much all of today’s speeches, and invariably I found myself agreeing with pretty much every word he said. He has been an absolute stalwart in working to improve the Bill. As others have said, our purpose, through our amendments, has been to improve, not to obstruct. We do not want to obstruct the outcome of the referendum, but we want to ensure that the legislation does the best possible job of the important task that it must do. I hope that the Government have come to recognise that, and that we can continue forward in that spirit.

In a similar vein, it is worth endorsing the comments made by my right hon. Friend the Member for Broxtowe (Anna Soubry). She is right: most people were not consumed by the minutiae of our arrangements. A fairly broadbrush debate, which was often pretty unsatisfactory and low grade, infected both sides from time to time. Frankly, the topic in hand was not done the justice it should have been done. We must now deliver on the decision, but it is pretty rich when some media commentators seem to regard the efforts of hon. Members to do their job as parliamentarians as some kind of betrayal, which is of course nonsense.

One is reminded more and more of the continuing relevance of those words of Stanley Baldwin when he got his cousin, Rudyard Kipling, to supply some lines about power without responsibility being, if I might paraphrase, the prerogative of the journalistic harlot throughout the ages. Those words are as applicable now as they were in the 1930s.

My three amendments relate to financial matters and matters linked to the City of London Corporation. I am grateful to the Minister and to the Solicitor General for their constructive approach.

Obviously I will not seek to press new clause 71 to a Division. I welcome the Government’s recognition of the centrality of the financial services sector to our economy, which is the point I want to stress. The deal we reach has to look after the interests of this jewel in the crown of the British economy. I am sure that that is the intention, but it is critical that we achieve it. To walk away without a deal would, of course, be of no value at all to the financial services sector, because WTO rules do not apply to it—it is not tariffs but regulatory burdens that would be the obstacle to our successful financial services sector.

As my constituency is that with the 16th highest number of financial and professional services workers in the country, it is my absolute duty to make sure that I am able to have a meaningful say on a deal that will affect their livelihoods and the livelihoods of their neighbours, friends and families. Thanks to the good work of my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) and others, I hope we are now in a position for me to have that say on their behalf. It is important we retain that say.

I was grateful for the Minister’s intervention on my right hon. Friend the Member for Broxtowe. The truth is that the more a person kicks a hornets’ nest, the angrier they get. I take the Minister’s comments in the spirit in whey they were made, and I hope we can move forward constructively.

New clause 72 addresses another aspect of the City’s work: the question of port charges and port authorities. Again, I welcome the helpful clarification of the Government’s stance. The port of London, of course, is one of the country’s largest ports, and the City of London is the port health authority. Estimates by port health authorities indicate that there could be a minimum increase in their workload of 25%. The facilities needed to carry out checks will involve a cost not just in revenue terms but in capital terms. If we are able to secure a continuing alignment on standards—I am grateful to the Minister for quoting a number of the regulations—it would obviate those difficulties, which is in the interest of the agricultural sector both here and in the EU, and in the interest of the food retail sector because of the last-minute delivery systems that now play a full part in its way of working.

Amendment 362 addresses the interpretation of contracts, and I am grateful that the Government have said we can continue working on that. Contractual certainty is critical, because many international legal contracts are written using English law because of the high regard in which it is held. That makes our legal services sector a considerable national asset. Maintaining certainty for the sector is important to all the business that comes into the UK, and it underpins the rest of the financial sector, too. I am grateful for the Government’s recognition of that important point.

Finally, I come to new clause 56, on Gibraltar, which I signed, but which stands in the names of SNP Members and others across the House. It has had cross-party support, for which I am grateful. I declare my interest as the chair of the all-party group on Gibraltar. I welcome the Government’s statement, both from Ministers today and from the Prime Minister earlier, of their full commitment to Gibraltar. What is important for Gibraltar—the new clause was designed to probe this—is not just the issue of the predatory approach that Spain takes to Gibraltar and the border. Although that is one issue on which we must fight on Gibraltar’s behalf, we must also address its people’s real desire—this is an absolute necessity for their wellbeing—to maintain access into UK markets and, in particular, to preserve the rights that we and they currently have as common members of the EU. I welcome the fact that the Government will try to find a constructive way of taking that forward. Gibraltar has a thriving financial services sector. It has transformed its economy from a dockyard and garrison economy to one with a significant financial services base. That economy complements the City of London in a number of key sectors, including insurance. Maintaining access is crucial and to the advantage of both the UK and the Gibraltarians. I am, again, grateful to Ministers on that.

I end on this note: the vote was about leaving, not the form of the new relationship. We are talking today about the process. In terms of where we end up, the one thing that has been made clear to me by the many constituents I speak to, particularly those in financial services, manufacturing and many other areas of business, is the absolute criticality of having a proper transitional period. That is vital for the financial services in particular, but also for many other areas. A constituent of mine has a manufacturing business that feeds into a complicated supply chain across EU boundaries. He wants to have certainty about the availability of the supply chain to make his products, and it is critical that there is certainty about the City’s ability to adapt. The City does adapt, and financial services can and will adapt, but they need time to do so, given the varied and complex nature of regulations.

My right hon. Friend the Member for Broxtowe hit on a fair point when she said, “Perhaps don’t start ruling out things that you don’t need to have to rule out.” Some people on the other side of the argument from me never ruled out either the customs union or the single market during the referendum campaign, but it seems that many of them seek to do so now. I would have thought that we ought to be keeping as many options open as possible, and the European Free Trade Association is one such option. I speak as a lawyer and someone who is concerned that we should have a proper dispute resolution mechanism. EFTA does have a court, which, although its jurisprudence historically tends to follow that of the ECJ, is institutionally independent. That is perhaps important for those who regard the move away from a direct jurisdiction as one of the important issues for the negotiations. EFTA is capable of ticking that box, so I simply say that we should not rule it out from the mix of the things we should look at.

In that—I hope—constructive spirit, may I wish you, Mrs Laing, and all hon. Members a happy Christmas? I might exclude from that the gentleman who sent me a card that said on the outside, “The peace and joy of God be upon you”, but said inside, after I opened it, “Judas, leave the country at once and never come back.” [Laughter.] Given that that probably is the least thing that has been said to some people, it is one thing we can laugh about. I say merry Christmas sincerely to all hon. Members. I hope that everybody has a good Christmas and that we can have a constructive new year as we take forward a great issue, on any view of the debate, for this country.

[Kate Green]

It is a great pleasure to follow my good friend the Chair of the Justice Committee. I had the honour of serving on that Committee when we prepared our report on Brexit’s impact on the justice system, to which the Government provided their response earlier this week. May I say to Ministers that new clause 31, which is about the best interests of children and safeguarding those interests, has a particular relevance to some of the issues that the Committee uncovered? Those relate to family law, which has not been the subject of much debate in Committee but is, none the less, an extremely complicated and important issue for the wellbeing of children. Our EU membership gives us access to institutions that protect and safeguard children as potential victims of crime.