European Union (Withdrawal) Bill

Kerry McCarthy Excerpts

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

[Mr Leslie]

I want to make a little more progress, if I may, because I need to reference a number of other amendments.

I hope this is not the case, but it seems to me that the Prime Minister, worried that hard-line Eurosceptics and Brexiteers on her Benches are champing and nipping at her heels, had to throw them a bone. There was a need to give them something, and therefore the charter of fundamental rights was the scalp she felt she had to throw in the direction of some, but not all, Conservative Members. I hope that is not the case, because significant protections on data, on children’s rights and on public health—even the protections that the Secretary of State for Exiting the European Union himself has used—are rights and privileges that we should jealously guard. It is our job in this Parliament to stand up and point out when the Executive are potentially trying to erode many of those rights. I hope we can keep the charter or, at the very least, have a report on its effect.

Amendment 62 also addresses changes in rights. This is not a pure copy-and-paste exercise, and the amendment seeks to preserve something known as the Francovich rule in our legal system. Essentially, it is a fundamental principle of any democracy that Governments should not be above the law. In EU law, the principle is made real by the Francovich rule, which was established by case law that provides citizens with tools to recover damages when their Government fall short of legal obligations. In this case, again, the Government are trying to do away with those protections, and I tabled the amendment—other hon. Members have tabled similar amendments—to probe the Government and to find out what will be the effect of removing the Francovich protection.

[Kerry McCarthy (Bristol East) (Lab)]

The recent prosecutions of the Government under clean air laws, for example, might not have been possible if the Francovich duty were not enshrined in law. The result of the Bill, as drafted, is that, the day before Brexit, people will have the right to claim damages from the Government for the harm they suffer, but there is a danger they will not have that right the day after Brexit.

[Mr Leslie]

My hon. Friend makes the point well. We can all imagine circumstances in which the Government could be in part responsible for failures to comply with various legal obligations—as she says, it might well include failure to comply with air quality directives—and those who suffer harm as a consequence of those Government failures may no longer have the right of redress. Those rights exist not only in environmental legislation but in, for instance, equal opportunities legislation. I can foresee circumstances in which a same-sex couple seek retroactively to claim their right to pension arrangements that might not have existed in the past so that they can accrue their pension rights, but they would not have redress to do so under the proposed arrangements.

The other big one is competition law, which relies very much on the right to challenge the Government, particularly on procurement arrangements. Companies that say they did not get a contract for such and such a reason may well feel that it was partly because they were unfairly treated by Government. Under the Francovich arrangements we have protections so that contracts can be let fairly, be it for house building, transport infrastructure or anything else we can name. A number of protections need safeguarding there.

Perhaps the biggest one that has not been addressed by Ministers and where Francovich may still be required is the protection of the rights of EU nationals after Brexit. A number of EU nationals will continue to reside in the UK after Brexit, but what will happen if their residency rights or definitions change, if their children are affected by changes of arrangements with the Government, or if rights to claim various tax reliefs or other things change in an unfair way for them, as EU nationals? There should be some level of redress against malfeasance by Government in that respect, so at the very least we need to hear from Ministers a better justification for the deletion of this Francovich protection.

--- Later in debate ---

[Theresa Villiers]

I can assure the hon. Lady that this Government and, I am sure, all successive Governments will remain strongly committed to the Good Friday agreement and to the protection of individual rights. As she will appreciate, of course, the agreement expressly referred to in the Good Friday agreement in relation to human rights is the European convention on human rights. However, I fully understand her point of view on this matter, and it will always be important for us as a Chamber to respect individual rights. The tenet of my speech is that we do not need the charter to enable us to do that. We have extensive legal frameworks available to us as a Parliament, and through our judiciary and legal system, and that will ensure that we properly protect our citizens, whether in Northern Ireland or in the rest of the United Kingdom.

Let me turn to my final reason for concern. I well remember the clarity of former Prime Minister Tony Blair about the fact that the charter would not be given legal force. As far back as 2000, the Prime Minister and the Europe Minister of the day stated that very clearly for the House. In 2003, the Labour Government’s lead negotiator on the convention, Peter Hain, said there was no possibility of the Government agreeing to incorporate the charter. In 2007, Tony Blair told Parliament that we had an opt-out from the charter, and this approach was supported by a number of pro-EU groups, such as the CBI. Even my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) expressed scepticism about the charter and described it as “a needless diversion”.

While the ECJ may since have ruled that the opt-out secured by Mr Blair was nothing of the sort, we now have the opportunity to see those promises fulfilled. We have a long history of protecting the rights of the individual against the arbitrary exercise of power by the state. We have ample means to do that in the future, with hundreds of years of case law and statute establishing strong principles of accountability in our unwritten constitution. We can legislate in the future if we ever find any gaps in our current framework. We do not need the charter to protect our citizens, and I appeal to Members not to accept the amendments being debated today.

[Kerry McCarthy]

It is a pleasure to see you in the Chair, Mr Hanson. I rise to support amendments 101 and 105, tabled in my name. They relate to the debate we had about environmental principles on day two of the Bill’s Committee stage, and particularly about new clauses 60 and 67, and new clause 28, which I also tabled.

As it stands, UK laws that arise from EU laws such as regulations and directives and that do not comply with the general principles of EU law can be challenged and disapplied. Administrative actions taken under EU law must also comply with the general principles. I say that by way of clarification, because I think a lot of people are trying to follow the debates in this Chamber during the Committee stage, and they are perhaps wondering what on earth we are talking about, so I am trying to make things as simple and as clear as possible for the public out there—and perhaps for some of us in the Chamber as well.

That is the situation while we are members of the EU. Post Brexit, though, schedule 1, as I interpret it, places unnecessary and unjustified restrictions on how these principles will be applied. That is what my amendments seek to rectify. Paragraph (2) states that retained principles will be only those that have been recognised or litigated by the Court of Justice of the EU in a case decided before exit day. Only those principles will be retained in domestic law; others will not, even if recognised in treaties. In the debate on day two, the Minister said in response to new clause 28 that this was because we needed a cut-off point and could not have ongoing interpretation of directives that would affect the situation in the UK. However, I would argue that there is still a real lack of clarity, and a danger that if we allow only principles that have been litigated on to apply after exit day, the non-controversial ones that people do not have a problem with will end up falling away, while only the controversial ones are retained. It is also unclear whether these general principles include environmental principles, as the term “general principles” has not been defined by the ECJ or by the treaties. If environmental principles are not explicitly recognised as general principles, they could be lost entirely. I hope that the Minister can give us a bit of clarity on that.

Paragraph 3 of schedule 1 explicitly limits the legal remedies available when general principles are contravened. Under this paragraph, UK courts will no longer have the power to disapply domestic legislation on the grounds that it conflicts with these general principles. They could only be used like the pre-exit case law of the CJEU to inform the interpretation by UK courts of retained EU law. Paragraph 3(2) therefore appears to narrow the scope for judicial review that currently exists. In the previous debate, some of my colleagues argued very eloquently as to the importance of judicial review in environmental cases but also highlighted the fact that it is often inadequate, and increasingly so, given the cap that is imposed. Paragraph 3(2) would further narrow the scope of judicial review and make it harder for the public to hold the Government to account. As discussed last week, it is vital that the courts are able to enforce the environmental principles.

Amendments 101 and 105 speak to those points. Amendment 101 clarifies that all existing principles of EU law will be retained in domestic law, whether they originate in the case law of the European Court, EU treaties, direct EU legislation or EU directives. It also makes it clear that the key environmental law principles in article 191 of the Lisbon treaty are retained. Amendment 101 therefore expands the meaning of general principles to specifically include the environmental principles. Following on from that, amendment 105 seeks to retain the right of action in domestic law for the public to hold the Government to account for their breaches of the principles.

I know that the Government are proposing an environmental principles policy. I have lots of questions about how that would operate—whether it would be on a statutory footing and so on—but at this stage I ask the Minister to confirm whether they will publish at least an outline version of what that principles policy would look like while there is still time to consider it and its implications for this Bill. So far in Committee, Ministers have been very fond of asking us to take their word for it, but I am simply not prepared to do that: I want to see what these policies would look like.

Will the Minister also explain the Government’s objection to the idea of having internationally recognised principles of environmental law enshrined in UK statute? The Government could include the basic principles in UK law by accepting my amendments. Not least, that would provide us with much needed reassurance that the Environment Secretary will win out against the International Trade Secretary in ensuring that future trade deals with countries such as the US will not lead to imports of chlorine-washed chicken and hormone-pumped beef on our shelves. The Environment Secretary has encouragingly said that the UK should say no to chlorine-washed chicken from the US and that we are

“not going to dilute our high food-safety standards or our high environmental standards in pursuit of any trade deal”.

But as was pointed out during last week’s debate, the environmental principles set out in the EU treaties have been instrumental in decisions such as the EU ban on imports of hormone-fed beef, the moratorium on neonicotinoid pesticides, and the control of the release of genetically modified organisms in the EU.

The debate on day two saw a degree of political consensus emerging around the value of environmental principles such as the precautionary principle, as well as in other areas, particularly the Environment Secretary’s mooted plan for a new independent body to hold the Government to account. I hope that when we consider the governance gap on a future day, we will hear more about his plans for that body. I think we also got confirmation from the Environment Secretary, although it was only a nod from a sedentary position, that he intended to follow the Environmental Audit Committee’s recommendation and introduce an environmental protection Act. I hope that we will hear more about that and the timetable for it. I understand that the much delayed 25-year environment plan may be with us in the first quarter of next year, a fisheries Bill is coming from the Department for Environment, Food and Rural Affairs and the agriculture Bill is due, I think, after the summer recess. If the Government are going to introduce an environmental protection Act before exit day, they will have their work cut out for them. I would be grateful to hear a bit more about that.