European Union (Withdrawal) Bill

Lady Hermon Excerpts

2nd reading: House of Commons
Monday 11th September 2017 Commons Chamber

[Sammy Wilson (East Antrim) (DUP)]

DUP Members’ starting point on the Bill is, “Does it help us deliver the will of the people of the United Kingdom to leave the EU?” We believe that it does. We believe that it is, in fact, an essential building block.

I have listened to the arguments that have been made today. Some Opposition Members—the hon. Members for Bath (Wera Hobhouse) and for Cambridge (Daniel Zeichner) and the right hon. Member for Tottenham (Mr Lammy)—have made it quite clear that their reason for opposing the Bill is that they do not want to leave the EU. If they had stopped there, I could have understood their argument, but it is rather ironic that they go on to say how undemocratic the Bill is when they are quite happy to stay in the EU with directives and other laws going through without any reference to this House. In fact, 20,000 have gone through, yet those Members want to continue that.

[Lady Hermon (North Down) (Ind)]

I am very grateful to the hon. Gentleman for allowing me to interrupt his rhetoric. There is one critical point that I would like him to address, and that is that the Bill is not going anywhere without the legislative consent of the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. We have no Assembly in Northern Ireland, so how will the Government get legislative consent?

[Sammy Wilson]

The fact that we do not have an Assembly in Northern Ireland might make it easier for the Government, but we will leave that aside.

The other argument that has been made is that the Bill is flawed and people want changes, yet the only way of getting them is to allow it to go to the next stage where the Minister has already made it clear he will consider amendments, provided that they are not designed as wrecking amendments.

May I make something clear from our point of view? We do not want to give the Government carte blanche to do whatever they wish. First, that is why we wanted to leave the EU. Secondly, we have had some experience of that in Northern Ireland. During the period of direct rule, decisions about the laws in Northern Ireland were made by Orders in Council in this place, which could not be amended. Of course, that sometimes led to bad law.

Arguments have been made against the Bill, claiming that it is a power grab. It is quite clear from what Ministers have said, from what the legislation says and from the restrictions placed on Ministers that that is not the case. First, it enables EU law to be brought into the sphere of this Parliament where eventually, if it is not appropriate, it can be amended through due process. Secondly, Ministers have made it quite clear that the powers in this legislation will be limited. Thirdly, they have made it clear that they will be only for technical amendments and that there cannot be changes, for example, that create criminal offences, change human rights, introduce new tax powers and so on. There are limits on what Ministers can do.

--- Later in debate ---

[Mr Lidington]

For the most part, those rights are used when they are given effect through specific items of European Union legislation, rather than in the abstract. My right hon. and learned Friend makes an important point, and it is true that after exit it will not be possible for an individual to bring a free-standing claim, or for the courts to quash an administrative action or disapply legislation on the grounds that it breaks one or more of the general principles of European law, except as those principles have been preserved by the Bill—which will be the case if those principles have been given effect through a specific piece of legislation. That position flows logically from the decision by the electorate to leave the European Union, because that does involve separating the United Kingdom’s legal order from the European Union’s legal order.

The issue of devolution has been the subject of much debate among Scottish Members of Parliament—

[Lady Hermon]

I am grateful to the Secretary of State for allowing me to intervene and help him with the general principles of EU law, which are respect for human rights and the principles of proportionality and non-discrimination. Those are principles that we in this country should be enormously proud of and embrace, instead of setting them aside. The Bill, in schedule 1, excludes anyone from relying on those general principles before a court, tribunal or public authority.

[Mr Lidington]

Those principles of human rights and non-discrimination are embodied in United Kingdom legislation and given effect by our courts. That was the situation 40 years ago, before we entered the European Union, it has remained the situation throughout our membership, and it will continue to be the position, unaffected by this Bill.

As for devolution, every single decision taken by the devolved Administrations will continue to be taken by them. The only question is how we best allocate to the UK Government and to the devolved Administrations the competencies and powers that will return to this country, because the devolution Acts were drafted in the context of this country’s membership of the European Union and the lists of devolved and reserved powers were drawn up against that background. For example, the common fisheries policy includes matters relating to the detailed management and regulation of fisheries, but it also covers EU agreements with third countries, such as the EU-Morocco fisheries agreement, and includes such matters as the UN convention relating to migratory fish stocks—international agreements that one might think should fall naturally to the United Kingdom Government. That will be a matter for continuing discussion between the United Kingdom Government and the devolved Administrations.

We shall need to come forward with some common frameworks to ensure, for example, that a Scottish farmer can sell some of his produce to customers in England or Northern Ireland without having to worry about two different sets of hygiene and food safety regulations, or that a Welsh paint manufacturer can sell freely anywhere in the United Kingdom without having to be concerned about different rules on the regulation of the chemicals in that paint. I am confident that the outcome of negotiations and continuing discussions with the devolved Administrations will be a significant increase in the powers being exercised by those devolved Administrations. That remains the Government’s intention. I can also say to my hon. Friend the Member for East Renfrewshire (Paul Masterton) that, yes, Ministers in the Department for Exiting the European Union and across Government will continue to talk to and listen carefully both to the views of Ministers in the devolved Administrations and to parliamentarians in the Scottish Parliament, the Welsh Assembly and soon, I hope, in the Northern Ireland Assembly.

Above all, the debate has centred on delegated powers, and I emphasise that the Bill already contains significant safeguards, which the debate has sometimes tended to overlook. Each of the four clauses that authorise secondary legislation has a defined purpose, and a statutory instrument made under such a clause cannot be made to do something else. It has to deliver something that is within the purpose defined in that clause. If we look at clause 7, for example, the power to make a statutory instrument is limited to something that will put right a failure or deficiency in retained EU law

“arising from the withdrawal of the United Kingdom from the EU.”

That power cannot be exercised for any other purpose. A Minister cannot make regulations because he dislikes the underlying policy or indeed because he dislikes the underlying EU law, but only when there is a problem with the operability of a piece of EU law that has been brought about by this country’s departure from the EU.

A similar condition applies to clause 8, which deals with our international obligations. There has been a lot of debate about clause 9, but its powers can be used only for the purpose of implementing the withdrawal agreement. The powers in clause 17 are limited to consequential amendments, and “consequential” has a long-established, tightly defined meaning in parliamentary practice and in law. The idea that there is some sweeping power in the Bill to rewrite the law of the United Kingdom is simply wrong. The statutory instruments may be used only for the purposes set out in the Bill.

In addition, the Government have included sunset clauses. The powers in clauses 7 and 8 lapse two years after exit day, and those in clause 9 lapse on exit day itself. The Bill also includes further safeguards in a list of exclusions from the scope of any delegated legislation, so none of the powers that grant secondary legislation can be used to make retrospective provision, to increase taxation, to create criminal offences or to affect the scope and application of the Human Rights Act 1998.

Despite the assurances incorporated in the wording of the Bill, very genuine, sincere concerns have been expressed on both sides of the House about whether there is sufficient parliamentary control over and scrutiny of how the powers will be used. [Interruption.]