European Union (Withdrawal) Bill

Kerry McCarthy Excerpts

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

[Mr Ranil Jayawardena (North East Hampshire) (Con)]

It is always a pleasure to follow the hon. Member for Penistone and Stocksbridge (Angela Smith), for whom I have a great amount of time. I shall not continue the debate about the environment on this occasion, but I welcome her consideration of points of scrutiny. I have, however, come to a slightly different conclusion, as I will outline in a moment.

It is a pleasure to speak to the amendments tabled by my hon. Friend the Member for Broxbourne (Mr Walker), which are also in my name and those of other Members. In particular, I am delighted that the Government have accepted amendments 393 and 397. I believe that this demonstrates consensus, and I want to focus on consensus this evening. These amendments have been tabled by Procedure Committee members from both sides of the House and, indeed, from both sides of the Brexit debate. They genuinely benefit from a consensus of support precisely because they do not seek to replay the many arguments of the referendum or undo the will of the British people as expressed in it. We recognise that the UK has voted to leave, and the amendments come up with a way of helping to make that happen.

One reason why that is important, particularly in the context of scrutiny, is that the referendum day poll of about 12,000 voters, commissioned by the noble Lord Ashcroft, showed that the biggest single reason for voting leave—it was given by over half of leave voters—was to take back control of, among other things, the laws and decisions of the United Kingdom. The amendments tabled by the Chairman of the Procedure Committee do just that: they focus on sovereignty, give Parliament control and ensure scrutiny of our laws.

As my right hon. Friend the Member for Broxtowe (Anna Soubry) said, it is important to recognise that amendments, whether these or others, are not necessarily seeking to reopen the Brexit debate. These amendments certainly do not do so; otherwise, I would not be supporting them. Instead, it is important to consider how to provide scrutiny of the laws that will be in place once we leave the European Union, which is what people have voted for.

In this instance and in that context, I am content with the Government’s proposed usage of the so-called Henry VIII powers in the Bill. The Leader of the House and the Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Wycombe (Mr Baker), were very frank and reassuring when they appeared before the Procedure Committee, as did the shadow Leader of the House, in what I thought was a good-spirited discussion of the substantive issues at stake.

I will come on to the scale of the challenge ahead in a moment, but I just want to say that, for a number of reasons, I am not particularly worried—strangely, some Labour Members have said they would be—about what would happen if the Labour party were ever in government again. The first is that the powers are mostly limited in nature. I do not want Labour Members to come back into government, for reasons that will be obvious, but I am not worried because the Government have clearly set out what the secondary legislation is and is not intended to do.

The Bill enables Ministers to create the necessary correcting instruments to prevent, remedy or mitigate any failure of or deficiency in retained EU law, but, as the excellent and independent House of Commons Library briefing sets out, “express legal limitations” are imposed on the secondary legislation. The secondary legislation cannot be created to impose or increase taxation, to create new criminal offences or, as the Minister said earlier, to amend human rights legislation. This is a well controlled piece of legislation designed to deal with the challenge of leaving the European Union in a way that allows parliamentary scrutiny while ensuring that the Government can get a smooth and orderly Brexit through this place.

Primary legislation will be needed on a number of key issues over which Parliament will become sovereign when we leave the European Union, such as a customs Bill, a trade Bill, an immigration Bill, a fisheries Bill, an agriculture Bill, a nuclear safeguards Bill, an international sanctions Bill—I am sure there are many more in the minds of Ministers—but there is only a short space of time. Given the sheer volume of retained EU law, there is no alternative to the Henry VIII powers for dealing with any deficiencies. The delegated powers under clause 7 are essential in that light.

The alternative would be legal chaos. With over 20,000 EU laws, having an individual parliamentary vote on each would take over 200 days of parliamentary time—sitting 24 hours a day, seven days a week. To be rid of that chaos, which I hope Opposition Members seek to rid our country of, and to provide the certainty that I am sure businesses in their constituencies and mine want to see, and indeed as witnesses to the Procedure Committee have pointed out, with this volume of delegated legislation being made in such a short space of time, any additional scrutiny by Parliament will provide further legal certainty to the courts and confirm that any law is the will of a sovereign Parliament, but it must be done in a way that allows the Government to get on and do it.

That brings me to a potential concern, which I hope Members agree has been satisfactorily addressed. As the Government have been at pains to make clear many times, the main purpose of the Bill is twofold: first, to respect the referendum result; and secondly, to ensure that our country has a functioning statute book on leaving the European Union. I was therefore pleased to see the inclusion of condition 3 in amendments 393 and 397, which makes it clear that if no recommendation as to whether regulations should be subject to the negative or affirmative procedure has been made by a committee of the House, then after 10 sitting days they can proceed by the negative procedure.

I hope that no committee would seek to play such games on this issue, such is the significance of leaving the European Union, but this critical condition will prevent any committee that was so minded from frustrating the progress of a statutory instrument in order, by extension, to frustrate the will of the British people to leave the European Union positively and constructively. It will stop that happening, enabling scrutiny without sabotage.

Let me affirm again that I am very pleased that these amendments have secured consensus across the parties. While the United Kingdom is leaving the European Union—that is not up for debate—this, I believe, will help to ensure that there is parliamentary scrutiny of the laws that need to be in place once we leave, but without stepping on the Government’s legislative toes or tying their hands in the negotiations with the European Union. That is ever more important as we progress to the stage 2 negotiations on trade and other matters. That relates to amendment 124.

I firmly believe that trade is our kingdom’s path to prosperity, and our generation’s chance to widen consumer choice, reduce the cost of living, improve quality of life and give those with the tightest purse strings a hand up. This we seek to do while maintaining the greatest possible access to, but not membership of, the single market. Leaving the European Union is not just about economics and markets, though; it is about the political and constitutional view of the British people. It was a vote to take back control of our laws as well as our borders, trade policy and money. These amendments enshrine that control.

I understand that the Government have accepted these amendments, and I hope that they will have continued support across the House, and indeed that the committee, once it is set up, will have the support of Members across the Brexit divide, ensuring that it can conduct its work in an effective and well respected manner.

[Kerry McCarthy (Bristol East) (Lab)]

It is a pleasure to see you in the Chair, Mr Hanson.

I rise to speak to support new clause 24 and amendment 96, in my name, as well as amendment 104, also in my name, which relates to new clause 27 and others on institutional arrangements. I do not know whether the hon. Member for Brighton, Pavilion (Caroline Lucas) intends to return to the Chamber to press new clause 27 to a Division, but it is an important clause about governance arrangements and I hope she does.

It is welcome that the Government have accepted the Procedure Committee’s amendments. There was much concern about the sweeping powers set out in clauses 7, 8 and 9, which, as many Members have said, would give Ministers excessively wide powers to make secondary legislation. There has been near universal recognition that we need to strengthen sifting and scrutiny powers, and there is huge scepticism about the process under schedule 7 for sifting through the 800-plus statutory instruments. There is a suspicion—I believe it to be justified—that it was to avoid much needed parliamentary scrutiny and that it could be used to weaken EU laws in the process of transposition.

I understand what the hon. Member for North East Hampshire (Mr Jayawardena) said, which is that there simply is not the time to work through them one by one, but that is why some of us voted against triggering article 50 when the Government chose to rush into it. We knew that this was an incredibly complex procedure and that it would not be easy in the way that some Conservative Members said it would be. We needed the time to do this properly. The reason we cannot do it properly is because we triggered article 50 too early.

[Mr Jayawardena]

Does the hon. Lady not accept that the European Union was very clear that until we triggered article 50 we could not begin any of the discussions to allow us to consider any of these matters?

[Kerry McCarthy]

In the previous Parliament, I was a member of two Select Committees. I was on the recent chemicals inquiry. It is not just that Ministers have not got their heads around it and do not know where they want to go in terms of chemicals regulation, it is that they have not even had discussions with stakeholders. They have not even explored the issues. They are coming to it almost with a blank sheet of paper way after the referendum vote was held. A lot of these discussions should have taken place before we even had the referendum, so we could know what we were letting people in for.

I welcome the Procedure Committee’s amendments, but they do not provide for enhanced scrutiny as such. They simply provide a mechanism for a committee to recommend that statutory instruments introduced under the Bill should be treated under the affirmative procedure rather than the negative procedure. The committee sits, but it does not scrutinise. Members may request a debate and a vote, but they cannot require a vote to take place. The White Paper said that MPs could require a debate, but that is simply not correct. The Hansard Society described that inaccuracy in the White Paper as ignorance at best, deception at worst. Members who have been in the House for some time will know that for an affirmative resolution to be objected to and end up in a proper debate is very rare. The tactic is used very infrequently. I believe we need a model that allows for enhanced scrutiny. It should include options such as: requiring a Minister to provide further evidence and explanation for the statutory instrument; requiring a debate and vote on the Floor of the House; allowing a committee to be able to recommend amendments to a statutory instrument, which many Members have mentioned; and public consultation. My hon. Friend the Member for Wakefield (Mary Creagh) talked about alerting Members to what is being brought forward before the House as a statutory instrument, because it is all too true that so many of them just pass unnoticed and we do not know what we are legislating on.

Enhanced scrutiny alone is not enough. The power to make corrections in clause 7 is still too broad, too general and too vague. It needs to be improved and clarified. The Bill must also put stronger substantive limitations on the powers in the Bill itself, including a general limit, as in new clause 24, and specific limits to safeguard environmental standards, such as in amendment 96. It is only by carefully restricting the Government’s powers and effectively scrutinising their use can we prevent powers in the Bill from being used in ways that weaken environmental protections or threaten to roll back 40 years of environmental gains. The hon. Member for Wells (James Heappey) said that Greener UK praised the earlier debate on the environment. I think it was praise for the amendments tabled and the discussion rather than the end result, because the Government did not accept any of the amendments, but we will continue to push on those issues.

--- Later in debate ---

[Kerry McCarthy]

I think Hansard did record that the Environment Secretary nodded his assent, but I am not entirely sure that he knew what he was nodding his assent to.

[James Heappey]

For those of us with an environmental mindset, there is a temptation—and I may say more about this later—to think that it is almost too good to be true that the Environment Secretary should sit there and, quite unequivocally, nod to all those requests. People are not quite willing to accept that it is true, but I am not sure that the things that my right hon. Friend has been saying about environmental matters in recent weeks should do anything to discourage us from believing that it is. He really has been setting the pace.

The non-governmental organisations have raised a number of matters. I agree with what they are saying, but I also believe that what we are already doing in the Bill and—much more importantly—our commitments beyond it will meet their expectations. Their concern about the governance gap is entirely justified. There needs to be a new body to reinforce the regulatory standards that we establish.

Significant powers relating to our environment are being vacated by the EU, and we must, as a matter of urgency, ensure that those powers are allocated to either existing or new regulatory bodies. Those bodies must be independent, they must be accountable, they must be accessible to the public who are seeking redress, their processes must be transparent, and they must have teeth so that they can hold Governments and others to account. We all agree on that, and nothing that I have heard from the Environment Secretary suggests that his ambition for legislation on the environment post-Brexit will not deliver those requirements.