European Union (Withdrawal) Bill

Kerry McCarthy Excerpts

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[Kerry McCarthy (Bristol East) (Lab)]

I beg to move amendment 57, page 2, line 42, leave out clause 4.

This amendment is linked to NC19, which would aim to preserve, more comprehensively than the existing Clause 4, rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from EU law and incorporated into domestic law via the European Communities Act 1972.

[Mr Speaker]

With this it will be convenient to discuss the following:

Amendment 4, in clause 5, page 3, line 23, leave out subsections (4) and (5) and insert—

“(4) Notwithstanding subsection (5), the Charter of Fundamental Rights continues to apply to retained EU law after exit day save as set out in subsections (5) and (5A) below and all references in the Charter to “the law of the Union” shall be deleted and replaced with “retained EU law”.

(5) The following provisions of the Charter shall not apply after exit day—

(a) the Preamble, and

(b) Title V.

(5A) Article 47 of the Charter shall apply after exit day as if it was drafted as follows—

“Right to a fair trial

“Everyone whose rights and freedoms guaranteed by retained EU law are violated is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

“Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice.”

(5B) With effect from exit day EU retained law, so far as it is possible to do so, must be interpreted consistently with the Charter.

(5C) With effect from exit day decisions, judgments, advisory opinions of the Court of Justice of the European Union must be taken into account when determining cases under the Charter.

(5D) With effect from exit day in relation to the rights conferred by the Charter with respect to retained EU law—

(a) section 4 of the Human Rights Act 1998 shall apply and the words “a Convention right” shall be replaced by “a Charter right” and all references to “primary legislation” shall be replaced by “retained EU law”,

(b) section 5 of the Human Rights Act 1998 shall apply,

(c) section 12 of the Human Rights Act 1998 shall apply and the words “the Convention right to freedom of expression” shall be replaced by “the Charter right to freedom of expression and information”, and

(d) section 13 of the Human Rights Act 1998 shall apply and the words “the Convention right to freedom of thought, conscience and religion” shall be replaced by “the Charter right to freedom of thought, conscience and religion”.

(5E) With effect from exit day, any derogation or reservation made under sections 14 or 15 of the Human Rights Act 1998 shall apply to rights under the Charter in the same manner as they apply to Convention rights.

(5F) With effect from exit day sections 16 or 17 of the Human Rights Act 1998 shall apply to rights under the Charter in the same manner as they apply to Convention rights.”

This amendment would retain the Charter Rights in UK law and afford them the same level as protection as the rights in the Human Rights Act.

Amendment 7, page 3, line 23, leave out subsections (4) and (5).

This amendment would allow the Charter of Fundamental Rights to continue to apply domestically in the interpretation and application of retained EU law.

Amendment 42, in clause 6, page 3, line 36, at end insert

“other than a matter referred to in paragraph 38 of the joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of the negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union dated 8 December 2017.”

This amendment would ensure that UK Courts and Tribunals can refer matters to the CJEU as agreed between the EU/UK negotiators in December 2017.

Amendment 55, page 3, line 36, at end insert—

“(1A) So far as it is possible to do so, retained EU law must be read and given effect in a way which allows it to operate effectively.”

This amendment (linked with Amendment 56) borrows language from the Human Rights Act 1998 to require courts and tribunals to interpret retained EU law, so far as possible, in order to overcome deficiencies in the operation of retained EU law which have not been dealt with using powers under clause 7.

Amendment 43, page 3, line 37, leave out subsection (2) and insert—

“(2) A court or tribunal may regard the decisions of the European Court made on or after exit day to be persuasive”

This amendment enables UK Courts and Tribunals to consider the decisions of the European Court to be persuasive.

New clause 7—EU Protocol on animal sentience—

“The obligation on Ministers of the Crown and the devolved administrations to pay regard to the welfare requirements of animals as sentient beings when formulating law and policy, contained within the EU Protocol on animal sentience as set out in Article 13 of Title II of the Lisbon Treaty, shall be recognised and available in domestic law on and after exit day.”

This new clause transfers the EU Protocol on animal sentience set out in Article 13 of Title II of the 2009 Lisbon Treaty into UK law, so that the obligation on the Government and the devolved administrations to pay due regard to the welfare requirements of animals as sentient beings when formulating law and policy is not lost when the UK leaves the EU.

New clause 9—Saving of acquired rights: Anguilla—

“(1) Nothing in this Act is to be construed as removing, replacing, altering or prejudicing the exercise of an acquired right.

(2) Any power, howsoever expressed, contained in this Act may not be exercised if the exercise of that power is likely to or will remove, replace or alter or prejudice the exercise of an acquired right.

(3) In subsection (2) a reference to a power includes a power to make regulations.

(4) In this section an acquired right means a right that existed immediately before exit day—

(a) whereby a person from or established in Anguilla could exercise that right (either absolutely or subject to any qualification) in the United Kingdom; and

(b) whereby the right arose in the context of the United Kingdom’s membership of the European Union and Anguilla’s status as a territory for whose external relations the United Kingdom is responsible.

(5) Nothing in this section prevents the use of the powers conferred by this Act to the extent that acquired rights are not altered or otherwise affected to the detriment of persons enjoying such rights.”

The intention of this new clause is to mitigate the impact of Brexit on the British territory of Anguilla which is dependent on frictionless movement between Anguilla and adjacent French and Dutch possessions of St Martin/Sint Maarten that are EU territories.

New clause 13—Classification of retained EU law (No. 2)—

“(1) Any retained EU law that was a legislative act or implements a legislative act enacted under Article 289 of the Treaty on the Functioning of the European Union is deemed to be primary legislation on or after exit day.

(2) Any retained EU law that was a delegated act or implements a delegated act under Article 290 of the Treaty on the Functioning of the European Union or was an implementing act or implements an implementing act under Article 291 of the Treaty on the Functioning of the European Union is deemed to be a statutory instrument on or after exit day, unless that law is already enacted as an Act of Parliament.

(3) Any change to the preceding characterisation shall be by regulation which may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.”

This new clause would provide greater legal certainty by classifying retained EU law as either primary or secondary legislation.

New clause 16—Consequences of leaving the European Union: equality—

“(1) This section comes into force when this Act is passed.

(2) The purpose of this section is to ensure that the withdrawal of the United Kingdom from the European Union does not diminish protection for equality in the law of the United Kingdom.

(3) All individuals are equal before the law and have the right to the equal protection and benefit of the law.

(4) All individuals have a right not to be discriminated against by any public authority on any grounds including sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.

(5) The following provisions of the Human Rights Act 1998 apply in relation to the rights conferred by subsections (3) and (4) as they apply in relation to Convention rights within the meaning of that Act—

(a) section 3 (interpretation of legislation);

(b) section 4 (declaration of incompatibility);

(c) section 5 (right of Crown to intervene);

(d) section 6 (acts of public authorities);

(e) section 7 (proceedings);

(f) section 8 (judicial remedies);

(g) section 9 (judicial acts);

(h) section 10 (power to take remedial action);

(i) section 11 (safeguard for existing human rights); and

(j) section 19 (statements of compatibility).

(6) A court or tribunal must have regard to any relevant decisions of the European Court of Human Rights in considering—

(a) the application of this section generally, and

(b) in particular, the meaning of discrimination for the purposes of this section.”

This new clause would ensure that the rights of equality presently enjoyed in accordance with EU law are enshrined in free-standing domestic law after the UK leaves the EU.

New clause 19—Saving for rights etc. under section 2(1) of the ECA (No. 2)—

“(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day are part of domestic law by virtue of section 2(1) of the European Communities Act 1972 continue on and after exit day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly).

(2) Subsection (1) does not apply to any rights, powers, liabilities, obligations restrictions, remedies or procedures so far as they form part of domestic law by virtue of section 3

(3) Where, following the United Kingdom’s exit from the EU, retained EU law incorrectly or incompletely gives effect to any rights, powers, liabilities, obligations, restrictions, remedies or procedures created or required by EU law in force immediately before exit day, a Minister of the Crown shall make regulations for the purpose of giving effect to such rights, powers, liabilities, obligations, restrictions, remedies and procedures.

(4) This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation).”

This new clause is linked to Amendment 57 to leave out Clause 4 and aims to preserve, more comprehensively than the existing clause 4, rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from EU law and incorporated into domestic law via the European Communities Act 1972. Where such rights are incorrectly or incompletely transferred, it imposes a duty to make regulations to remedy the deficiency.

Amendment 40, in schedule 8, page 54, line 6, at end insert

“to which subsection (2) of section (Classification of retained EU law (Amendment2)) applies.”

This amendment is consequential on NC13.

Amendment 41, page 54, line 44, at end insert

“to which subsection (2) of section (Classification of retained EU law (Amendment2)) applies.”

This amendment is consequential on NC13.

Government amendments 37 and 38.

[Kerry McCarthy]

Amendment 57, which would leave out clause 4, is linked to new clauses 19 and 21. Many of the amendments I tabled in Committee have been proposed by Greener UK, a coalition of many environmental organisations that are concerned about the possible impact of Brexit on environmental protections. They see it as one of the biggest threats: I know other people see it as an opportunity, especially when it comes to rejigging how we subsidise agriculture once we leave the common agricultural policy. The concern is what protections would remain, given the importance of our membership of the EU for everything from cleaning up water pollution and protecting biodiversity to improving recycling and reducing waste. It is hard to believe that we used to allow untreated sewage to flow into our seas before the EU’s bathing water directive forced the UK Government to make our bathing waters fit for swimming and to test for bacteria such as E. coli. In 1990, only 27% of our bathing waters met minimum mandatory standards; by 2014, 99% complied.

When the then Secretary of State for Environment, Food and Rural Affairs gave evidence to the Environmental Audit Committee’s inquiry on the natural environment after the EU referendum, she told the Committee that approximately a third of the more than 800 pieces of EU environmental legislation will be difficult to transpose into UK law. The Committee also identified a considerable governance gap, which the Government have acknowledged, and I support new clause 18, which would enshrine what the Government have said they want in relation to carrying over environmental principles and establishing a new environmental regulatory body.

My amendment addresses the substantial flaws, gaps and democratic deficit in the Bill that were not addressed in Committee, in particular to fully transpose current EU environmental legislation in all areas effectively into UK law to avoid any weakening or loss of existing environmental protection during Brexit. The Secretary of State for Environment, Food and Rural Affairs has been encouraging in saying that:

“We must not only maintain but enhance environmental standards as we leave the EU. And that means making sure we secure the environmental gains we have made while in the EU even as we use our new independence to aim even higher”.

Opposition Members share the same aspirations and visions, but we cannot just take his word for it. We need those promises written into the Bill and concrete measures to deliver on those aspirations. This has to last longer than he is in post.

Amendment 57 would leave out clause 4, with a view to replacing it with new clause 19 which would preserve—more comprehensively than clause 4—rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from EU law. The new clause seeks only to properly realise the Government’s stated ambition for the Bill—they have repeatedly assured us of this during the process—that the same rules and laws will apply after we leave the EU as before.

In their White Paper, the Government sought to reassure us that this Bill will mean that

“the whole body of existing EU environmental law continues to have effect in UK law”.

The Prime Minister has promised:

“The same rules and laws will apply on the day after exit as on the day before”,

but that is simply not the case. As drafted, the Bill will not properly capture and convert all EU environmental law into stand-alone domestic law.

Clause 4 appears to deal with full transposition. In Committee, the then Minister of State for Courts and Justice described it as a sweeper provision that

“picks up the other obligations, rights and remedies that would currently have the force of UK law under section 2 of the European Communities Act 1972.”—[Official Report, 15 November 2017; Vol. 631, c. 498.]

But it fails to do its sweeping properly, because some inexplicable and unnecessary restrictions in clause 4(l)(b) and (2)(b) mean that important aspects of environmental law will be lost. Those exceptions include rights that have not been recognised by a court before exit day. Effectively, the basic rights that everyone accepts but that have not been litigated on are at risk. Those rights have been hardwired into EU law and do not need enforcing, but once we no longer have the safety net of the EU, they could fall.

The Government’s defence of the limitations in these subsections in Committee was far from convincing. The Minister essentially argued that they were necessary because directives do not produce directly effective rights until they have been recognised as such by courts. However, if a provision in legislation creates directly effective law, it does not need a court to confirm that that is the case. If a piece of legislation creates a legal position, it does not need a judge to verify that that is the case. In fact, the Government have often not transposed certain provisions of directives on the basis that they function adequately directly from the directives without any need to transpose them into national law. That clearly demonstrates that there are parts of directives that currently form part of UK law that will be removed by subsection (2)(b).

Clause 4 does not adequately engage with failures to properly transpose EU law. An obligation should be placed on the Government to remedy incorrect and incomplete transposition. The powers to do so are contained in clause 7(2)(f), but there is a significant difference between a power to do something and a duty to use that power.

To summarise, amendment 57, in getting rid of clause 4 and replacing the linked new clause 19, seeks to rectify those errors. New clause 19 is simpler and more comprehensive than the existing clause 4. It would ensure that rights arising under EU directives are preserved and that a mechanism is in place after exit day to deal with problems arising from the incomplete or incorrect transposition of EU law before exit day.

If clause 4 is not amended, we could lose vital EU law provisions, including requirements to review and report on the adequacy and implementation of laws that are crucial to ensure the law is complied with and up to date. That includes the requirements contained in article 20 of the marine strategy framework directive, article 17 of the habitats directive and article 32 of the air quality directive. Without reported data under the latter, ClientEarth would not have been able to hold the Government to account through the courts on air pollution.

We will also lose obligations on the Government to report and send information to the European Commission, which is then able to aggregate it and use it for considering the appropriateness of laws and their implementation. On day 6 in Committee, I gave an example of how losing reporting requirements under article 10 of the birds directive could, for example, present a barrier to future investment in, and the roll-out of, marine renewable energy and other developments. The Government still have not said whether they intend these reporting requirements to disappear.

Without amendment, we will also see a loss of environmental standards and conditions. Some obligations on member states have not been transposed into UK law, such as article 9 of the water framework directive, which requires water pricing policies to provide adequate incentives for users to use water efficiently, or article 5 of the energy efficiency directive on energy performance requirements for publicly owned buildings. We have been promised a green Brexit, and we are told that leaving the EU will not threaten the health of people or nature, so why is there opposition to amending the Bill to make those promises legally binding?

Let me turn briefly to the other new clause tabled in my name. New clause 21 would ensure oversight of the transfer of functions from EU institutions to domestic institutions. It would do that by requiring the Government to establish a publicly accessible register of environmental governance functions and powers exercised by EU institutions and to make regulations that ensure that all relevant environmental powers and functions are continued. The register would allow the public to monitor and hold the Government to account on their plans for robust arrangements to be in place on exit day to deliver their ambition for a world-leading environmental justice system. The new clause also reflects strong public concern that the environmental governance gap that would arise on leaving the EU is filled as quickly as possible.

To conclude, I am simply saying that if the Government want the Bill to match their stated intentions, they need to accept these provisions.

[Mr Dominic Grieve (Beaconsfield) (Con)]

It is a pleasure to follow the hon. Member for Bristol East (Kerry McCarthy) in respect of her provisions and to have the opportunity this afternoon to talk about the schedule of amendments in front of us, which we have to consider as a block between now and 4 pm.

The hon. Lady’s concern is about the fate of environmental law, as provided to us by the EU, once we leave, and about what provision we will make to provide it with adequate protection. However, the whole list of amendments, including those tabled by the official Opposition, goes to the issue of what happens to areas of entrenched law that have developed during our EU membership after we have gone. My right hon. and hon. Friends on the Treasury Bench keep on repeating insistently that it is not the intention, as a result of our removal from the EU, that any of these protections should be diminished in any way at all.

It is true that one or two of my right hon. and hon. Friends have made hinting noises at various times that there are areas that they might like to alter in future, in a way that suggests a possible diminution, but in fairness to the Government, that has never been the Government’s position. Indeed, as we have spent time looking at issues such as equality law or children’s rights, the message has come back over and again that the disappearance of the charter of fundamental rights or environmental law issues, for example, will not be used as an excuse for diminishing the existing legal framework.

The difficulty—it is the one that exercised me in Committee—is that it is all very well Ministers coming to the House and making very pleasant statements that that is what they intend to do, but it must be the responsibility of this House to ask the Government how, in practice, that is to be done, when such a powerful mechanism as our EU membership is about to be removed.

That raises a second and more fundamental problem, where I have considerable sympathy with the Government. I understand why, for many in this House—I think that I count myself as one of them, as a good Conservative—the idea of entrenched rights that override the sovereign power of Parliament is something with which we are not comfortable. Indeed, the official Opposition, when in government post-1997 and when seeking to enact the Human Rights Act 1998, recognised that, in that they did not seek to provide entrenched laws; they sought to provide a mechanism through the Human Rights Act whereby rights under the European convention on human rights might be protected in a special way through declarations of incompatibility. That was not sufficient to override primary legislation of this House, but, of course, it did provide a mechanism by which it could be overridden and struck down in the case of secondary legislation. That has always been a way of doing things that has commended itself to me.

I have always accepted that one of the consequences and problems of EU membership is that it has provided entrenched laws that ultimately override by virtue of our international obligations and the direct effect of the European Court of Justice. So I can understand that there should be reluctance on the Government side of the House, as we leave the EU, to simply take this category of laws and say that we are going to give it a special status that overrides the ordinary way in which this House does its business.

If we do that, however, it raises the question of what the Government propose to do to provide, for example, at least as much protection for these categories of rights as is currently enjoyed under the Human Rights Act. One possibility—we canvassed it in Committee—was that the Government might wish to enact primary legislation to add clauses to the Human Rights Act to provide such a mechanism. Indeed, if the Government were to come up with such a proposal, I would be enthusiastic about it, and it is a matter to which we have to give careful consideration.

I am also aware that some of the rights provided in the charter, for example, clearly pertain to EU citizenship, so they are irrelevant to this country once we leave. I also accept that some of the rights may be said to have a socioeconomic aspect, which makes it debatable whether they should be categorised as rights at all. However, that still leaves a very big area indeed of matters that, as I understand it from listening to my right hon. and hon. Friends on the Treasury Bench, Ministers acknowledge are of such importance that they are now seen as being equivalent to rights, yet they do not enjoy the protection of the convention.

--- Later in debate ---

[Mr Leslie]

Treaties are reformed every time there are adaptations to them, whether it is Maastricht, Nice or Lisbon. The body of European rules and regulations is adapted and reformed all the time. It is all part of working together in co-operation. Sometimes we get our way on particular issues; sometimes we have to continue to argue our case. That is the nature of pooling some of our rules and sharing sovereignty in some respects with our wider neighbours. That is the nature of agriculture and of the environment in which we live.

[Kerry McCarthy]

It is an absolute fallacy to suggest that this Government have been dying to ban live animal exports and that it is only the EU that has held them back. I think it was Germany and the Netherlands that tried in the past few years to put a limit of eight hours, transit time on live exports. The UK went along to those negotiations and argued against those proposals. This is definitely a question of political will.

[Mr Leslie]

My hon. Friend absolutely nails the point and brings it home. She knows a great deal more about such issues than I do. The Government of the day do have a say on the rules and can sometimes effect reforms or block them.

--- Later in debate ---

[The Solicitor General]

May I reassure the hon. Lady by pointing out that there are many areas on which we have heard debates, such as on live importation? I want to make sure the new domestic law we introduce is comprehensive in a way that I know she would fully support. Cross-referencing to the obligations in article 13 —which apply only to EU policies, not to UK policies—would, if anything, create more confusion once we have left the EU.

Frankly, article 13 has not delivered and its effect on domestic law is minimal, and as my right hon. Friend the Environment Secretary has said, we can do better. We have made it clear that we intend to retain, and indeed enhance, our existing standards of animal welfare once we leave. This Bill will convert the existing body of EU animal welfare law into our law and will make sure the same protections are in place in the UK and that laws still function effectively after we leave.

The purpose of this Bill is not to improve EU laws; it is about providing a functioning statute book. That is why, as the hon. Lady has acknowledged, the Government have now published draft legislation—the Animal Welfare (Sentencing and Recognition of Sentience) Bill—which sets out why we can do it better. It is a significant improvement on article 13; it will impose a clear duty on the state to have regard for animal welfare when considering all policies, rather than just the six areas in article 13.

I also say to the hon. Lady that it is open to public consultation and we have to respect the views of thousands of members of the public who will be coming forward and making—[Interruption.] The hon. Lady believes in open and public consultation and democracy, and that is why we are doing what we are doing. [Interruption.] It ill behoves the hon. Lady to assume that my party somehow lies on a lower moral plain when it comes to issues of animal welfare. We share the passion and commitment to animal welfare that she professes and I know many other Members in this House do—I look to the hon. Member for Bristol East (Kerry McCarthy) as a shining example. We want to hear from the public and their view about it, and we want to get it right in domestic legislation, which is the right place for it.

There is much I could say about the wonderful, if small, British overseas territory of Anguilla. Having visited it myself in a ministerial capacity, I was very grateful to the hon. Member for Ilford South (Mike Gapes) for his description. We are very conscious not only of the importance of Anguilla, its people and its economy, but the need to make sure that the concerns of the Anguillan Government are considered and the rights people have in Anguilla, which are exactly the same as those of UK nationals, are preserved after we leave the EU. We will make sure that that situation will not change.

The debate on the charter has been an important one. It has been a further stage in the way in which we have looked carefully at the Bill. The Government remain open and we are listening to all views on how we can get this right. I am sure that, as the Bill makes its way into another place, the deliberations of this House will have done much to enhance the quality not only of the Bill but of our democracy itself.

[Kerry McCarthy]

I thank the Minister for praising me as a shining example on animal welfare, but that does not quite make up for my disappointment that he has failed to address the issues in my amendments. I therefore seek to press amendment 57 to a vote.

[Mr Speaker]

The hon. Lady had 10 seconds, and she has been indulged very modestly.