European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

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

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

This Bill is, fundamentally, not a decision-making Bill; it is an enabling Bill—it is an administrative measure. I spent many years on the Opposition Benches—on the Front Bench and on the Back Benches—practising the professional outrage we saw practised very effectively in the Chamber last Thursday and, if I may so, just now by the hon. Member for Penistone and Stocksbridge (Angela Smith). Of course, there are scintillas of truth in the points being made, but we should remember that the big decisions have been made—on 23 June last year and in the article 50 Act. We are leaving the European Union, and a vote against the Bill, as my right hon. Friend the Member for Basingstoke (Mrs Miller) pointed out, is just a vote for chaos and a chaotic Brexit, rather than a smooth transition.

Much of the debate is actually not about sovereignty, but about scrutiny and the proper role of Parliament, as the hon. Member for Penistone and Stocksbridge just said. There is huge complexity to deal with, and a quantity of legislative changes need to be made, but we need to keep this in proportion. If the official Opposition are really serious about having a sensible discussion about how to improve the scrutiny of secondary legislation, and particularly of the so-called Henry VIII provisions, let us have that conversation, and I would be delighted to talk about how we do those things. However, the Hansard Society proposals are far more about the procedures we adopt in this House and in the other place than about making fundamental changes to the Bill, albeit that some changes may be necessary.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

My hon. Friend and I rarely agree totally on European matters, but I actually agree with him that we need a practical Bill, not a policy Bill, that enables us to have a smooth transition. Would he therefore not agree that the whole issue under debate could be solved if the Government agreed to amend the Bill so that they gave themselves only the powers the Secretary of State explained to us yesterday that he requires, and so that it achieves only the ambitions that his letter to all MPs set out? Surely no one would miss the rather sweeping powers in clauses 7, 9 and so on if they were removed, because the Government express no intention of using them in the way everybody fears.

[Mr Jenkin]

My right hon. and learned Friend sets out the common ground we should all be on. However, the debate was not assisted by Tony Blair, who was on the television yesterday speaking about how to deal with this issue. He said:

“Paradoxically, we have to respect the referendum vote to change it.”

There is an understandable suspicion among Conservative Members that some people have not really accepted that we are leaving the European Union. The fact that the official Opposition have chosen to vote against the whole Bill underlines that they are rather reluctant to accept the decision the British people have made.

Before I move on, I should re-emphasise that the Hansard Society proposals have a lot to them, and we should be able to discuss them. I hope that, behind the scenes, colleagues will talk across parties on these matters, as one or two of us have already suggested we should.

However, let me put this in the much wider context, because we are getting rather lost in the detail of the Bill. We are forgetting what the Bill is for and the context it is being discussed in: we are leaving on 28 March—or whichever date it actually is—next year. It might be helpful to have the exit date on the face of the Bill at the outset, to provide additional clarity that negotiations are in progress, or should be.

I think everyone is getting a bit disappointed that there has not been more substantive discussion about the issues that really matter. The European Union’s position is beginning to look more and more unreasonable as it refuses to discuss the end state of the relationship that we all want to see, insisting on an up-front payment, or promise of payment, before it will discuss those matters. I have absolutely no doubt that the EU is playing for time for some reason, possibly because of the German elections, and is likely to crumble on that, and to start to talk seriously about the issues that we need to discuss.

We can talk too much and too glibly about cliff edges; I notice that even the Government have put the term “cliff edge” into their documents. Let us face it—the United Kingdom does not want a cliff edge. We are offering the rest of the European Union seamless trade, as far as possible, no tariff barriers and mutual recognition for products and services.

--- Later in debate ---

[Mr Pat McFadden (Wolverhampton South East) (Lab)]

The Bill attempts to incorporate into domestic legislation the body of European Union law that has built up in the 44 years since we joined the EU. The stated purpose is to provide the country with continuity and certainty on what our statute book will contain on the day when we leave. Yet the purpose of leaving the EU is to depart from the laws incorporated by the Bill, otherwise there would be no point. So the legal certainty that the Bill aims for can last no longer than day one itself.

Leading leave campaigners have attempted to assuage such fears by pretending that they want to change nothing—not labour laws, not environmental protections, and not consumer protections. Those who have been the most vociferous opponents of any regulation that has stemmed from the EU, including members of the Cabinet who have attacked its laws and protections, such as those for people at work, now profess to agree to all the regulation that they previously detested. As we have come to expect in the pattern since the referendum, any attempt to ask questions about the Bill has been met with the usual accusations of betraying the public and denying the referendum result. Our democracy deserves better than that. If the proposals cannot stand scrutiny and questioning, the proposals are at fault, not those doing the questioning and trying to apply scrutiny.

Let us look at the content of the Bill. Most attention has been focused on the delegated powers provisions set out in clauses 7, 8, 9 and 17, and on the scrutiny provisions set out in schedule 7. In simple terms, those are the powers to amend the law without the usual legislative process of full debate. For example, clause 7 states that a Minister

“may by regulations make such provision as the Minister considers appropriate”,

and clause 9 states:

“Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act).”

Up until last week, the cornerstone of the Government’s defence of those proposed powers was the claim they were supported by the House of Lords Constitution Committee. Indeed, last Wednesday, the day before this debate began, the Prime Minister told the House that the Government’s approach

“has been endorsed by the House of Lords Constitution Committee.”—[Official Report, 6 September 2017; Vol. 628, c. 148.]

Let us look at what the Committee actually said in last week’s report. It stated:

“The executive powers conferred by the Bill are unprecedented and extraordinary and raise fundamental constitutional questions about the separation of powers between Parliament and Government.”

It continued by saying that

“the Bill weaves a tapestry of delegated powers that are breath-taking in terms of both their scope and potency”

and that the

“number, range and overlapping nature of the broad delegated powers would create what is, in effect, an unprecedented and extraordinary portmanteau of effectively unlimited powers upon which the Government could draw. They would fundamentally challenge the constitutional balance of powers between Parliament and Government and would represent a significant—and unacceptable—transfer of legal competence.”

If that is the Government’s case for the defence, I would not like to see the case for the prosecution.

[Mr Kenneth Clarke]

Does the right hon. Gentleman agree that there have been a lot of arguments in the past about Henry VIII powers and about the Executive taking power away from Parliament, and that it has all steadily gone in one direction? The danger now is not only the consequences of this Bill and of the details of Brexit, but that if the House does not challenge this Bill and change it, it will be quoted as a precedent for years to come. I have no doubt that if the Labour party ever gets back into power, a future Labour Government will start lecturing a Conservative Opposition that there are clear precedents for taking powers of this kind.

[Mr McFadden]

The right hon. and learned Gentleman is, of course, correct that we have had some of these debates before.

The criticism does not stop with the House of Lords Committee. The Hansard Society says that

“the Bill will strengthen the…executive, not Parliament”.

Its report on the Bill says:

“the broad scope of its…powers, the inadequate constraints…on them, and shortcomings in the proposed parliamentary control…will be…a toxic mix”.

We have had regulatory Bills before, and many years ago, when I was first elected, I was involved in taking the Legislative and Regulatory Reform Act 2006 through the House. There was huge controversy about the powers contained in that legislation, and many Conservative Members who most vociferously defend the European Union (Withdrawal) Bill attacked that Act as a huge power grab.

The response to the 2006 Act led to the setting up of a special scrutiny process for deregulatory measures, and the Hansard Society says:

“Previous legislation, such as the Legislative and Regulatory Reform Act 2006, provides examples of ways in which”

the Government

“could introduce safeguards into the EU (Withdrawal) Bill to tighten the scope and application of the powers.”

But there are no special scrutiny measures proposed in the Bill, even though its scope is far, far broader than the 2006 Act.

--- Later in debate ---

[The Lord Chancellor and Secretary of State for Justice (Mr David Lidington)]

By my count, no fewer than 107 Members have spoken during the two days of this Second Reading debate. I hope that the House will forgive me when I say that, in the time left to me, I shall not be able to respond fully and in detail to each one of those contributions. However, I do want to express my appreciation to all Members who have taken part; and, like the hon. Member for Greenwich and Woolwich (Matthew Pennycook), I want to single out the hon. Member for Canterbury (Rosie Duffield), who made a fine maiden speech. Those of us who were in the Chamber to listen, or who read her speech in Hansard, will recall the obvious passion and affection with which she spoke about the different communities that make up her constituency. Let me add that I—and my parliamentary friends—also appreciated the generous tribute that she paid to her predecessor, Sir Julian Brazier, and I thank her for it.

I want to spend the time that I have in trying to address what seem to me to have been the three chief criticisms of the Bill expressed in various quarters of the House during the two days of debate on Second Reading: the question of the underlying principles of EU law; the matter of devolution and the powers of the devolved Administrations; and the issue of the delegated powers that are granted by the Bill. Then, again, I will try to say something about how the Government see the way forward. Let me start, however, by reminding the House why the Bill is needed.

Both the Opposition Front-Bench spokesman, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), and my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), neither of whom could be characterised as ardent champions of the leave cause—indeed, I count myself rather in their camp on the issue—said that the Bill does not determine whether or not we leave the European Union. That was a decision that the electorate took democratically last year, and both the fact of our departure and the process and timetable that govern that have to proceed now according to the process and timeframe laid out in article 50 of the treaty on European Union. What the Bill does is enable us to have a coherent, functioning statute book and regulatory system on the day that we leave and thereafter, because at that date—to take the words of article 50—the treaties cease to apply to the United Kingdom, so the rights and responsibilities that have effect legally in the United Kingdom because of European law will fall away unless they are imported into United Kingdom law by this Bill.

There were many eloquent contributions from Members about the concerns they or their constituents had about the future of various rights—employment rights, environmental rights and so on—that they currently enjoy; the hon. Member for Blaydon (Liz Twist), in recent hours of the debate was one such. My response is that those very employment, environmental and other rights, conferred as a result of EU regulations or judgments of the European Court, are continued by this Bill on a United Kingdom legal basis as part of what my hon. Friend the Member for Louth and Horncastle (Victoria Atkins) described as the wholesale adoption of European law. I have to say to the official Opposition that to vote against the Bill, as they propose to do, is therefore to vote against continuing those rights on a United Kingdom legal basis. It is to put those rights at risk, and open up the risk of a chaotic departure from the European Union, which is not going to be in the interests of either individuals or businesses in this country.

[Mr Kenneth Clarke]

rose—

[Stephen Timms (East Ham) (Lab)]

rose—

[Mr Lidington]

I give way to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke).

[Mr Clarke]

Throughout the discussion on this Bill, it has been entirely uncontroversial for everybody to agree that a Bill is required to ensure continuity and certainty for existing EU legal arrangements, putting them into British law straight away for the future. Will my right hon. Friend give an undertaking that when we move to the Committee stage in a few weeks, or probably about a month, the Government will produce substantial amendments to address what this whole debate has been about: the huge extension to the Government of discretionary powers that go far beyond the limited ambition my right hon. Friend is describing? I would prefer him and the Government to come back, address those issues and turn this Bill into one that resembles the reassuring descriptions of it that keep being given by the Secretary of State for Brexit and by him—two members of the Government whose word I would actually accept implicitly, but in the political world I have known Governments to go back on reassuring words quite frequently.

[Mr Lidington]

I want to come on to that point later, but I first give way to the right hon. Member for East Ham (Stephen Timms).