European Union (Withdrawal) Bill

Mary Creagh Excerpts

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

[Mr Leslie]

Exactly. People voting in the referendum might have been moved by that slogan “take back control”, but I do not honestly think many voters thought that that meant taking back control from a European Executive and handing it to Ministers of the Crown, outwith the powers and scope of Parliament to do much about it, yet that is effectively the proposal in clause 7.

I want to emphasise that this is not simply an exercise in transposing technical and necessary measures. The Government have extended the scope of the Bill into policy-making capability, which brings in the question of divergence. We have heard a lot recently about concepts of full alignment and this notion of diverging from rules and policies. The way clauses 7 and 9 have been drafted would allow Ministers, by order, through negative statutory instruments that we rarely get the chance even to vote on in this place, to make policy changes that could affect policy functions and the rights of our constituents—perhaps as part of a deregulating agenda—if that is indeed what the Government of the day sought to achieve.

[Mary Creagh (Wakefield) (Lab)]

My hon. Friend, like me, will have read in the newspapers about the Cabinet split opening up on divergence, with various Cabinet Ministers backing divergence and others not. How does he think this squares with the Prime Minister’s promise to our European partners and the Government of the Republic of Ireland that we will stay in full regulatory alignment after we leave?

[Mr Leslie]

I suspect that the European Commission and the Republic of Ireland Government saw the phrase “full alignment” and thought that full alignment meant full alignment. It turns out from the Prime Minister’s statement yesterday that full alignment does not quite mean full alignment. She said it only meant aligning the areas in the Good Friday agreement protocol, but of course that predates the notion of our leaving the single market and the customs union, so the Good Friday agreement did not cover such narrow issues—I say that sarcastically—as goods and manufacture trade. The list of issues that she thinks full alignment covers does not include trade in goods, which is a staggering thing, because of course if we do not cover trade in goods, we end up with that hard border, which is absolutely the point we have got to.

[Mary Creagh]

rose—

[Mr Leslie]

I do not want to digress at this stage. I want to focus particularly on the powers that Ministers are taking in clause 7, if my hon. Friend will allow me to do so.

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[Mr Leslie]

The offer from the Government has been a binary yes or no motion at some point when we see the withdrawal agreement, and then—potentially after the fact, post-signature by Ministers—a Bill later on down the line. That is obviously not good enough, but we will come to many of those issues in tomorrow’s debates. For now, there are further deficiencies in the way clause 7 has been drafted to be addressed.

Clause 7(5) talks about the functions and public services that the regulations can amend. The right hon. and learned Member for Beaconsfield has spotted in amendment 5, as I have in amendment 61, that these powers could allow Ministers to sweep away a public service function currently undertaken by an EU agency without making alternative provisions; Ministers have talked about a function being not only “replaced” or “modified”, but “abolished”. Ridiculously, Ministers have snuck in this phrase, under which by order they can abolish a whole area of public service activity through the powers they are granting themselves in subsection (5). That could affect lots of obscure and small areas of public policy that do not matter to all our constituents but will certainly matter to some, including chemical safety certification, medicine risk assessment activities, aircraft airworthiness, preparedness for disease prevention and control, aeronautic research, energy market trading, and maritime pollution.

There are lots of functions that EU agencies currently fulfil. Some Members might say that they should be fulfilled within the UK, which is a perfectly good argument, but clause 7 would allow Ministers to abolish those functions entirely by order. I do not believe that is appropriate, and that is why I think amendment 61 and certainly amendment 5 are necessary.

[Mary Creagh]

My hon. Friend has talked about the many agencies that we currently rely on to regulate all manner and aspects of our national life, but he has neglected to mention the regulatory and enforcement functions carried out by the European Commission and the European Court of Justice. Does he share my concern that, particularly in the environmental sphere—which I will talk about in my speech—removing the Commission as an enforcement body could be very detrimental to standards in all areas of regulation?

[Mr Leslie]

My hon. Friend has done important work as Chair of the Environmental Audit Committee on some of these questions. These are not small matters; they are important functions that over the years we have developed and grown to expect. Some of them are provided by EU agencies, but they should not be able to be abolished simply by order—by the sweep of a ministerial pen—without reference to this place and without the House of Commons having some ability to decide.

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[Caroline Lucas]

rose—

[Mary Creagh]

rose—

[Sir Oliver Letwin]

I will give way to both hon. Ladies, but I will just say one last thing in case they were going to make this point. Many people have raised the question of whether all this work will be done in time—I see the hon. Member for Brighton, Pavilion (Caroline Lucas) nodding and I suspect that she will want to raise that point—and I see that if there was doubt about whether it was, that would be a reason for legislating here, as opposed to waiting for a proper new statute. I am delighted to say that we have talked sufficiently to Ministers to be confident that they will be bringing forward both the consultation and the legislation in time to ensure that it is in place before we exit the EU. Of course, I would also want to wait until January to see the consultation to ensure that that engagement is fulfilled, and I am sure that the other place will want to look at what is said in the consultation and to assure itself that the new statute is coming forward before it consented to allow this Bill to proceed without the amendments that are being proposed. I believe that the right way to do this is in separate legislation. It is not about this business of Brexit; it is about trying to get the right answer for the environment. It is much better that we should do that in a fully fledged Bill that will be properly debated and contains all the relevant provisions and powers, which will never shoehorn into this Bill. I genuinely believe that that is the best way forward.

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[Sir Oliver Letwin]

I do not suppose that I will succeed now in persuading the hon. Lady. I do not wholly disapprove of the idea of her and others pursuing aggressive amendment tactics here and in the other place to ensure that the Government continue to respond effectively and rapidly. Once the consultation paper emerges and the Secretary of State has made further statements about this, and once legislative time has been allocated in the Parliamentary Business and Legislation Committee, assuming it is still called that, we will have that confidence. I would prefer to rest on that, because it would be at the least inelegant and possibly positively damaging to pass one piece of legislation and then introduce another that repealed or amended it. That sounds to me like a recipe for confusion.

Should we become sceptical at a later date about whether the Government will bring separate legislation forward, it would be open to the House of Lords to table amendments in the other place, which would come back to us. I, for one, would want to see those amendments made if the Government did not intend to put something in place before EU exit day. I am currently confident that they will, and that is the only basis on which I will not be voting for the new clause this evening.

[Mary Creagh]

I do not share the right hon. Gentleman’s confidence that all this will be done in time, and I share the concerns of the hon. Member for Brighton, Pavilion (Caroline Lucas). We have been waiting two and a half years for a 25-year environment plan, which will be a 22-year plan by the time it is published. We have had promises of legislation on fisheries and the common agricultural policy, and today a draft animal sentience and animal welfare Bill has been published. There is already a legislative logjam in the Department for Environment, Food and Rural Affairs as a result of the decision to leave the EU, and at the moment there is a reporting gap. Although there may be a new body in the future to do some of the enforcement, I do not believe that it will be up and ready at the point of leaving, when all our reporting obligations, which currently rest with the European Commission, will fall.

[Sir Oliver Letwin]

There are quite a lot of bits to unpack in that. If we were to leave without an agreement and hence without a transition period, there would be some merit in her observation, although the gap would be short if the new body had been legislated for by the time we left. If the Government’s plan succeeds and there is a transition period, we will no doubt be bound by the current rules during that period so there would be two full years in which to establish the new body. It is not likely that the hon. Lady’s concern on that front will be realised in practice, although I admit some theoretical possibility of it.

The hon. Lady adduces a legislative logjam in DEFRA. I accept the facts that she presents, but I see them exactly the other way round. We have a Secretary of State for Environment, Food and Rural Affairs who is probably the most powerful one we have had for a long time, for various reasons of which hon. Members on both sides are acutely conscious. He is probably more committed to this agenda than any we have seen in recent times in either Administration—[Interruption.] I am conscious that the right hon. Member for Leeds Central (Hilary Benn) will inevitably cavil slightly at that, and I respect his record. I genuinely believe that the current Secretary of State is even more devoted to the environment than he was.

An awful lot of DEFRA legislation will inevitably have to be brought to the House before exit. No Environment, Food and Rural Affairs Secretary and no Government could resist it. One cannot exit the EU without solving the problems of the common fisheries policy and the common agricultural policy so there is a natural legislative slot, and this powerful Secretary of State will be more than capable of bringing before the House the relevant statutory provisions. They will not be simple; they will require mature deliberation in both Houses. I am sure we all agree that it is incredibly important that we get the provisions exactly right. We need to make sure that it is a genuinely watertight system, with a set of policies that apply, that the court will enforce and that can be brought to court by an independent body. We need to ensure that the independent body is genuinely and completely independent of the Government, that it can bring Ministers to court, that it is properly funded and staffed and that it looks at the way in which the principles are applied through the policy statement in practice.

I believe that if all that can be done in a proper statute, it would be not just a replication of where we have been, which is now much lauded but was in practice very imperfect, but a huge advance on that. We would have a more comprehensive enforcement of a better environmental legislative framework than any country on earth. That is a goal worth striving for in a proper Act, instead of trying to shoehorn into this Bill a set of new clauses and amendments that are well intentioned but cannot perform the same purpose.

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[Matthew Pennycook]

I am happy to take that on board. I learn more about Government environmental policy from the right hon. Gentleman than I do from his Front-Bench colleagues, so I happily stand corrected.

[Mary Creagh]

What the Secretary of State announced to the Environmental Audit Committee on 1 November was the beginnings of an idea. During that evidence session, the one new environmental body morphed into four potential environmental bodies, which have yet to morph into a consultation, which has yet to be published. At the moment, we are chasing chimeras—I do not know whether I have pronounced that correctly. [Interruption.] I thank the genius of the group, my hon. Friend the Member for Rhondda (Chris Bryant), for helping me with my Greek pronunciation. What I have described stands in stark contrast to the hop, skip and jump on the animal sentience legislation that has been rushed out before Christmas—the triple jump on animal welfare legislation. The issues relating to devolution are further complicated by the promise to the Republic of Ireland on full regulatory alignment on agriculture, water and waste, which is now going to continue regardless.

[Matthew Pennycook]

My hon. Friend makes a series of good points. I do not take the Government’s commitment in this policy area lightly and I do not take issue with it. What is at issue is the scope and powers of the watchdog and the timing. I share the concerns expressed by my hon. Friend and by the hon. Member for Brighton, Pavilion (Caroline Lucas) about whether the new watchdog will be up and running in time and whether it will have the powers necessary to carry out the same functions as the institutions and agencies that currently exist.

New clause 63 would ensure that robust new domestic governance arrangements for environmental standards and protections were in place before exit day. It would also ensure that the body tasked with filling the governance gap was established by primary legislation before that date and that its scope, powers, functions and institutional design were shaped by public consultation.

[Matthew Pennycook]

The scope of new clause 63 is for the environmental watchdog in England, as we have already said. There would have to be agreement between the devolved Administrations and the UK Government about whether they choose to take the same approach.

[Mary Creagh]

One point that my Committee has specifically made on the devolution settlement is that business does not want to deal with four regulators setting up four different sets of rules and regulations on waste, on water and on chemicals. It wants one set of regulations to deal with, and it has made it consistently clear that the set of rules that it would like to continue to abide by is that set by the European Union.

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[Mary Creagh]

On that point, does the right hon. Gentleman think that the draft Animal Welfare (Sentencing and Recognition of Sentience) Bill, which was published today, is a technical measure or something that merits scrutiny on the Floor of the House—and, ditto, the new environmental body that has been proposed by the Secretary of State for Environment, Food and Rural Affairs?

[John Redwood]

As I understand it, that decision has been made for me. I have not yet had the advantage of reading the draft Bill, so I cannot give the hon. Lady my personal view, but the Government’s view is that it is primary legislation. They think that even though that Bill is reaffirming practices in European law, because the Government think that it is going a bit further than European law, they have quite properly said, “We must make this primary legislation.” The example makes my case rather well that the Government are being cautious because they are trying to reaffirm and go a bit further than European law, probably in a direction that most people in the House would be entirely comfortable with. But the House will have the benefit of going through the full processes of primary legislation. I hope that there will be other examples like that, where Ministers recognise that there could be changes of substance that will warrant either primary legislation or a statutory instrument.

I do not want to take up too much time because many people wish to speak, but I would like to pick up on something that the Labour Front-Bench spokesman, the hon. Member for Greenwich and Woolwich (Matthew Pennycook), started to mention and which I found very interesting. He drew our attention to the way in which we handle statutory instruments in the House in general. There are occasions when it is a weakness of our procedures that we cannot amend a statutory instrument, and we need to think about this for the future. This issue does not arise just from the transfer of European law; it goes to the fundamental business of how we generally exercise control and ensure that legislation works.

I remember being on a statutory instrument Committee under the previous Labour Government for an SI to regularise a series of payments to councils because the Government had been a bit late in giving themselves the legislative permission to make the payments—there was a surprise. I realised as soon as I read it that somebody had put in the statutory instrument the full amounts of money involved, and someone else had come along and put, “£millions” across the top of the table, so we were actually invited to vote six extra noughts on every figure going to the councils.

I am a generous man, but I thought that that was a bit excessive because it meant that the sums were probably bigger than the GNP of the country. If not, they were certainly approaching the GNP of the country in a rather alarming way. I was regarded as a bit of a nuisance for pointing this out because there was absolutely no way of correcting the figures. The Committee just had to sit and enact the statutory instrument as it was, even though it was clearly laughable, giving far too much cover for payments and not acting as a proper control. That is a minor example, but it shows that there are occasions when Ministers make mistakes and when it would be quite helpful if there were some kind of correcting procedure.

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[Tommy Sheppard]

Indeed so. There is always the danger that some of the policies that Government may wish to get through, and would run aground were they to try to introduce them through primary legislation, may be sneaked through the back door in a salami-style way. We do not know. The point is that we are being invited to give Ministers the power whereby these things could happen.

[Mary Creagh]

I understand and sympathise with the hon. Gentleman’s point on deficiencies. Does he agree that over the weekend we have seen varying interpretations of the meaning of full regulatory alignment, which seems to mean all sorts of different things to different people as the Cabinet tries to have its fudge and eat it?

[Tommy Sheppard]

Indeed. While I am tempted to digress into a debate on what happened with the phase 1 agreement and regulatory alignment, I think I had better stick to the subject in hand.

With regard to defining “deficiencies” properly, amendment 264 calls on the Government to provide reassurance by bringing forward clear definitions of what they might mean by “deficiencies”. If we had that, we might be better able to consider whether to give them these powers.

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[Mr Grieve]

That would be a very sensible course of action. As I say, the burden is on the Government to show some common sense and inventiveness in how they approach this. My understanding is also that, as was mentioned earlier, the committee will not have a Government majority—

[Mary Creagh]

Eight and eight.

[Mr Grieve]

Indeed. To that extent, it will, as I understand it, have sufficient flexibility and will, I hope, also be able to command enough confidence. These are difficult issues, but, as I say, I am mindful of the fact that my right hon. and hon. Friends on the Treasury Bench, having been asked to consider this, have gone and done it in a conciliatory and sensible spirit. For that reason—we were talking earlier about trust—this is one matter on which I have trust in the way that they have responded and that this will be sufficient for the work we have to do.

In the longer term, this issue will not go away, and I feel strongly that this House ought to be thinking about how it can assert itself again to take a better system of scrutiny than that which we have at the moment. Heaven knows, I have sat through enough of these Committees to know their deficiencies. It is also noteworthy that, although some jurisdictions have specialist committees linked to each of their select committees to consider legislation, we do not—something I have always found mystifying. I also served for four years on the Joint Committee on Statutory Instruments. It was a very interesting Committee, but, again, it did not really have the necessary bite to correct what were sometimes egregious howlers, of the kind that my right hon. Friend the Member for Wokingham pointed out.

I turn now to the other way this matter can be looked at: by trying to constrain the powers the Government are taking. Of course, the vast majority of the amendments I have tabled along with my right hon. and hon. Friends concern constraining those powers. For example, amendment 2, which has been mentioned, would use a process first introduced in 2006 in seeking to constrain the powers set out by applying the concept of reasonableness and proportionality. Another example is my amendment 1, which would leave out the words

“(but are not limited to)”,

and so limit the deficiencies to the list of powers and functions set out in clause 7(2).

The Government have here an enormous menu of options by which the powers in clause 7, and indeed elsewhere in the Bill, can be constrained. I do not want to repeat some of the things we have said in earlier sittings of this Committee. The question for me is: how will the Government respond? There is a legitimate argument from the Government, which I have heard and listened to, that they ought to go away and consider the variety of amendments—mine are not the only ones; a great range of amendments have been tabled from across the House, and each, in my judgment, is valid. The Government have to come up with a response on how they can constrain the powers set out. At the moment, my opinion is that these powers are far too stark, far too great and not necessary. My right hon. Friend the Member for West Dorset (Sir Oliver Letwin), to whom I also always listen very carefully on these matters, approaches this matter from a slightly different angle, so I was interested to hear him say that he thought the powers were excessive and unnecessary—I hope that I do not paraphrase him wrongly.

In those circumstances, the Government have to think again. I do not want to be particularly prescriptive, because it seems to me that there are a range of ways in which this could be done. I want to hear from Ministers this afternoon broadly how they will respond to the amendments and give some thought to coming back on Report with a constraint on the powers set out. There are probably two ways this can be done—indeed, we could do both. The first is to accept some of the amendments. On my amendment 1, for example, I continue to be bemused that, in view of the extensive nature of subsection (2)(a) to (g), it is in fact necessary to provide a further power. I think that there are excessive jitters within Departments. Somebody ought to have the courage to say, “Find me some examples that fall outside the scope,” and if they can, they should add those to the list and take out the unlimited nature of the powers at the top of the clause.

I accept, picking up something that was said earlier in Committee, that the word “deficiency” provides some constraint. I take the view that if an attempt were made to extend the use of the powers outside of correcting a deficiency, it could be challenged in court, but we do not want to end up with court challenges. I say to Ministers that that would be the worst possible place to end up in January 2019—the clock ticking and people claiming the Government have used excessive powers. That would contribute to chaos rather than certainty, so the issue needs to be addressed.

The second issue, which has been highlighted by some of the other Members who have spoken, is whether the Government can sensibly identify areas of particular concern to the House, such as children’s rights, environmental law or equality rights, that can be safely cordoned off—or, in the case of children’s rights, specifically inserted—to reassure the House that these powers will not be used for a purpose other than that which was intended. That seems to me to be the challenge.

For those reasons, I am going to listen very carefully. I want to avoid putting any of my numerous amendments to the vote, but that will depend first on the answer that I receive from the Dispatch Box this afternoon and secondly on whether the answer is sufficiently clear and shows a willingness by the Government overall—we have debated this on previous days—to go away and consider the matter properly, and then come back with a sensible proposal on Report. I should be happy to wait until then, because that is exactly what the process of legislation is about—waiting to see what the Government come up with—but I put them on notice that if what they come up with is inadequate, the debate on Report will allow us to re-table amendments, or table them in a slightly different form. If necessary, we will vote on them, and I will vote to ensure that the powers are not as they currently appear. That is the challenge to the Government, and I expect a response. Provided that I receive that response, I will sit on my numerous amendments this afternoon.

Let me say one more thing, about a matter that has not been much touched on. My new clause 82 deals with tertiary powers. This is a little bit technical, but I do not like tertiary powers. I do not like them one little bit. They are, of course, powers that ultimately do not come to this place at all. I want to find out this afternoon what tertiary powers are actually for, and I want the Government to give some examples to justify their appearance in the Bill. I confess that I found it slightly difficult to see why they had crept in. One or two people have suggested some possible reasons, but I should like to hear rather more this afternoon; otherwise, again, I put the Government on notice that I shall return to this matter on Report. I do not think that the world would come to an end if they were to disappear from the Bill, although my hon. Friend the Minister may persuade me otherwise. As a result of the Government’s approach, we have already made great progress on triage. I am grateful to them for that, because it is exactly how the Bill should be dealt with. However, I want to see some progress on constraining the powers and making them less extensive, because I think that they are unnecessarily broad.

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[Mary Creagh]

It is a pleasure to follow the right hon. and learned Member for Beaconsfield (Mr Grieve). If he is concerned about tertiary legislation, I invite him to co-sign my amendment 291, which will be taken on day 8 of our consideration of this Bill, and which would require all tertiary legislation made under powers under these regulations to be subject to parliamentary control. That would go some way towards addressing some of the concerns he and I have about tertiary legislation.

I rise to speak to new clause 62 and amendment 138, tabled in my name. This Bill poses a severe risk that environmental legislation on exit day becomes zombie legislation, no longer updated or enforced, and vulnerable to being watered down or dropped entirely. Amendment 138 seeks to prevent environmental protections from being watered down, and new clause 62 would require the Government to come up with a solution to the governance gap.

That is important because 80% of the UK’s environmental protections come from EU law. This Bill will have to deal with swathes of environmental law, and we do not want it tampered or fiddled about with in any way if we leave. Those laws have brought us a very long way since the 1970s when we were seen as the dirty man of Europe, but they are neither self-executing nor self-policing. They set air quality targets, climate change targets and water quality standards, and the rules and regulations affect almost every aspect of our waste management industry. It was interesting that the Prime Minister said yesterday that waste, water, food and agriculture would all be subject to continued regulatory alignment; we wait to see what that means in practice. Those laws mean we bathe on cleaner beaches, drive more fuel-efficient cars and can hold the Government to account on air pollution.

We are part of a global gold standard in chemicals regulation, and the chemicals and pharmaceuticals industry yesterday wrote to the Environment Secretary stating in terms that it wishes to stay in the registration, evaluation and authorisation of chemicals regulation. On a previous day’s consideration of this Bill, the Minister of State, Ministry of Justice, told me in response to my concerns on REACH that it is directly applicable in UK law, but he fundamentally misunderstands what REACH does. It creates a body—the European Chemicals Agency—which regulates, evaluates, authorises and enforces that law. We do not have such a body in UK law, so although that directive may be directly applicable and be valid in UK law, there is no body to carry out its functions. As we go through this Bill we are going to find that that is the case. There may be a body that the Minister thinks he can dump those functions on through a duplication of legislation, but that is not a perfect or elegant solution. Today, we are a world leader in environmental standards, and, crucially, we are able to hold this Government to account. That certainly focuses Ministers’ minds when there is the threat of infringement or infraction proceedings.

Leaving the EU means we lose those governance, enforcement and accountability mechanisms, and new clause 62 requires the Government to ensure that environmental law is enforced after exit day. That is why my Committee called for a new environmental protection Act. The Government have said that that will not be necessary, so since they have refused to introduce such an Act, amendment 138 aims to preserve retained EU environmental law. Much of this environmental law will need technical corrections, and the unpicking of 40 years of legal ties to EU institutions and agencies is the biggest administrative and constitutional task that this country has faced since world war two.

[Stephen Kinnock (Aberavon) (Lab)]

Is my hon. Friend aware of the fact that at least half of the approximately 42 EU agencies that exist offer no provision for the participation of third countries? Could she perhaps ask Members on the other Benches how the Government can possibly build the necessary capacity when we are unable to participate in those agencies?

[Mary Creagh]

My hon. Friend raises an excellent point, which has also been raised by the European Chemicals Agency. Those registrations, which will have cost our businesses £250 million, will fall on exit day. I know that that particular agency does allow third countries to participate, but when I tabled a parliamentary question to various Departments about the work they had done to prepare to duplicate the work of those regulatory agencies, I got a series of flannel-type replies that essentially said, “We don’t know how much it is going to cost, we don’t know what the system is going to be and we haven’t really started the work.” That is simply not good enough. Businesses and citizens deserve certainty. We are going to need between 800 and 1,000 statutory instruments before exit day to correct retained law. In a letter to the Environment, Food and Rural Affairs Committee in September, the Environment Secretary said that there were 850 pieces of legislation relating to his Department that would no longer work after exit day unless they were corrected. That is an absolutely huge body of law.

Clause 7, as we have heard, gives Ministers powers to make regulations that they believe are appropriate—again, I dispute what “appropriate” might be—to

“prevent, remedy or mitigate…any failure of EU retained law to operate effectively”—

again, how do we know what the full scope of this clause will cover? This is a huge amount of law—

“or…any other deficiency in retained EU law”

where this arises from exit. The Bill’s explanatory notes contain a worrying and rather brazen example of what this means. They use the example of the UK having to obtain an opinion from the EU Commission, stating:

“In this instance the power to correct the law would allow the Government to amend UK domestic legislation to either replace the reference to the Commission with a UK body”—

should the Government decide to have one—

“or remove this requirement completely.”

Once we start to see the removal of reporting and enforcement requirements, we get to the heart of the Bill, which is that Brexit is a deregulators’ charter. This is about taking rights away and about ensuring that environmental and social rights are lost to our citizens. I do not want to see Ministers making those sweeping changes with no scrutiny in this place.

In part 1 of schedule 7, paragraph 3(2) waives the affirmative procedure for regulations where the Minister is of the opinion that

“by reason of urgency, it is necessary to make the regulations without a draft being so laid and approved.”

That basically says that the Government will not consult this House if the matter is urgent. They have said that they will accept the amendments tabled by the Procedure Committee Chair, the hon. Member for Broxbourne (Mr Walker), but those provisions could be waived if a Minister was of the opinion that the regulations were urgent. The Government want to pass 800 to 1,000 statutory instruments, 850 of which are in the environment sphere. Can anyone tell me which of those regulations will not be urgent, given that they need to be passed before exit day?

[Mr Baker]

May I reassure the hon. Lady that it is the made affirmative procedure that is available for urgent instruments, so the instrument would have to be laid before both Houses.

[Mary Creagh]

But that would still be the negative procedure—

[Mr Baker]

No, it is set out in the schedule. It is the made affirmative procedure, which means that once the instrument has been made, it must be laid for a resolution of both Houses.

[Mary Creagh]

I thank the Minister for that clarification.

What could possibly be watered down? The Environmental Audit Committee asked the Transport Secretary for a guarantee that air quality standards would not be watered down after Brexit, but he refused to give us that guarantee, saying that he found it

“hard to believe that any Minister is going to stand before this House and argue for a reduction in air quality standards.”

He is right. No Minister will have to stand before this House and argue for that, because the Bill does away with that requirement. We saw the Secretary of State for Exiting the European Union’s mask slip once before during his statement to this House on the White Paper, when he said:

“This is about reversing—well, not reversing but amending—and dealing with 40 years’ accumulated policy and law.”—[Official Report, 2 February 2017; Vol. 620, c. 1220.]

That was a Freudian slip that I return to time and again. We have also seen that from the Environment Secretary. Paeans have been heaped on his head, but in April, between his visiting Donald Trump in January and his rehabilitation to the Cabinet, he railed against the habitats directive, which he now somehow wants to protect from himself. He talked about homes in his constituency being governed by the habitats directive and how onerous it was for developers to have to offset their projects with green spaces. There is obviously more joy in heaven over one sinner who repents, but he was a deregulator before his damascene conversion. He is now deeply penitent, spending his day listening to the experts, and has since acknowledged that the environment needs to be protected from

“the unscrupulous, unprincipled, or careless”.

I wonder which of his colleagues he had in mind and who may yet succeed him at DEFRA.

How might Ministers go about watering down EU standards? The 2008 classification, labelling and packaging regulation or CLP regulation—CLP means something quite different in Labour terminology—is an example of direct EU legislation under clause 3, which will become retained EU law under clause 6. The CLP regulation aligns the EU’s system of classifying, labelling and packaging chemical substances. It enables chemical products to be traded in the European single market while protecting workers, consumers and the environment. It is why drain cleaners—the sulphuric acid that has been used in the terrible acid attacks—and paint strippers bear the red diamond hazard signs, with which we are all familiar. The regulation will need to be corrected after exit day, but the corrections proposed in the Government’s delegated powers memorandum show how the CLP regulation would be dramatically watered down.

The draft statutory instrument proposes to omit article 46 of the CLP regulation. Article 46 obliges the Government to enforce the safety standards in the regulation and to report on how well those standards are being enforced. In that draft SI, the Government say that because the Commission does not exist, they do not need to report to the Commission, and because they do not need to report, they do not need to enforce. This is a granular and detailed amendment, but that is the sort of thing that the proposed sifting committee will have to consider with an electron microscope to get to the heart of every single deficiency, some of which—with the best will in the world—will not appear until there is a legal challenge. We do not want the labelling and packaging of dangerous chemicals not to be enforced and not reported to any body. Some hon. Members may not be as sceptical as I am about Ministers’ intentions, but none of us can predict the future. We have had three Environment Secretaries in as many years.

Amendment 138 would protect retained EU environmental law, requiring Ministers to certify that they are satisfied that regulations made under clause 7 will not remove or reduce any environmental protection provided by retained EU law. That certification—similar to that created by the Human Rights Act—would be justiciable, meaning that it can be challenged in a court of law. An individual or group could apply for a judicial review if they felt that regulations made under clause 7 had removed or reduced environmental protection. That would not delay leaving the EU, but it would provide a vital check on the powers in clause 7, and it protects the protections.

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[Jess Phillips]

I associate myself with the comments of the right hon. Member for Broxtowe (Anna Soubry). I agree entirely with her on this, as well as on a great many other things. I take the hon. Member for Stone (Sir William Cash) as my inspiration: if I cannot get what I want, I will just wait 40 years—saying the same thing—and it may come around again.

I will speak to amendment 385 and new clause 77, which are in my names and those of right hon. and hon. Friends, as well as right hon. and hon. Members from other parties. In the White Paper published earlier this year, the Government committed to continuing to work with the EU to preserve European security, to fight terrorism and to uphold justice across Europe, yet no mention at all was made of plans to continue the work, post-Brexit, with their European partners to protect women and girls fleeing violence. I need not really point to the lack of a certain sort of Member of Parliament—those with a certain chromosome—in the Brexit team or among those currently on the Treasury Bench as to why that was the case.

This omission is stunning given the current state of affairs in the UK. An estimated 1.3 million women in England and Wales experienced domestic abuse last year alone, while 4.3 million women will have experienced domestic abuse at some point since the age of 16. In addition, about one in five women will experience stalking or sexual assault at some point in their lifetime. Despite that desperately worrying state of affairs, the Government have so far failed to guarantee that such survivors of violence will enjoy the same legal protections post-Brexit as they do now.

Amendment 385 would at least retain one aspect of this protection. In February 2016, history was made in the Hammersmith specialist domestic abuse court, when the first European protection order was issued in England and Wales. This enabled the survivor to move to Sweden, enjoying protection in both the UK and Sweden. In the same year, another survivor was issued an EPO, allowing her to move to Slovakia safely. The UK has also recognised a number of EPOs issued by other EU member states in 2015 and 2016, meaning that these survivors were protected on entry to the UK. According to data provided by the European parliamentary research service, Britain makes disproportionate use of the framework, accounting for almost half of all orders granted in 2015 and 2016.

[Mary Creagh]

Does my hon. Friend think that the fact that we are disproportionately represented in that way reflects the UK’s status as both a transit point and a destination for people trafficking? It would be abhorrent if the process of leaving the EU afforded less protection to such survivors.

[Jess Phillips]

Absolutely. I cannot give with any real certainty the exact reason why Britain uses the orders more than anywhere else, except for the fact that—I can definitely say this—our human trafficking rates are much higher compared with other European countries. The issue that worries me is that British Governments of many colours over many years have prioritised domestic violence services and protection orders in relation to human trafficking, and it would be a real stain on what is not a bad reputation for this Government—certainly on human trafficking—if we undid some of the protections that we rely on very heavily in the realm of human trafficking.

While the number of EPOs granted since their inception is still quite small, because the framework is very young—let us say that, in its infancy, it is the hon. Member for Birmingham, Yardley compared with the hon. Member for Stone—there is no telling how the uptake may increase in the future. We must certainly not deprive survivors making use of the orders of what they have been guaranteed so far, otherwise they will continue to be vulnerable and to be abused. Amendment 385 would ensure that, at the very least, UK courts continued to recognise EPOs issued by EU member states.

There are a great many other ways in which the UK co-operates with the EU on issues such as human trafficking, female genital mutilation and forced marriage. Such issues are prevalent in many parts of the country. For example, in 2010, up to 900 schoolgirls across Birmingham were at risk of FGM. One in five children in Birmingham will have experienced or seen domestic violence before they reach adulthood, and at least 300 forced marriages take place in the west midlands every year.

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[Mr Baker]

I am extremely grateful to my hon. Friend for his robust support, and I shall certainly watch out for my lead.

Our approach is to provide for the greatest possible scrutiny and transparency of the statutory instruments as they come forward. We began that process of providing transparency in the delegated powers memorandum accompanying the Bill, and in recent days we have published further information on how clause 7 would be used, including yesterday two draft SIs in the key area of workers’ rights, but there is more we can do to provide for scrutiny and transparency, which brings me to amendments 391 and 392 to 398, which will come before the Committee for a vote tomorrow.

I am pleased to repeat that the Government intend tomorrow to accept amendments 392 to 398, tabled by my hon. Friend the Member for Broxbourne, who is not here, but who nevertheless is a great champion of Parliament against the Executive, as he has demonstrated on multiple occasions. The Procedure Committee, which he chairs, agreed the amendments unanimously. I pay particular tribute to the Delegated Powers and Regulatory Reform Committee, whose report informed the Committee’s work, I understand. If his amendments are not moved separately, the Government will be happy to move them formally at the appropriate moment.

The amendments will establish a sifting committee in the House to look at instruments made under the power in clause 7 and two other key powers in clauses 8 and 9. I draw the Committee’s attention to the draft Standing Orders that my right hon. Friend the Leader of the House has published to establish a new Select Committee to consider the negative instruments in the way that my hon. Friend the Member for Broxbourne proposes. The amendments draw on the expertise of the Procedure Committee, and the Government believe that they offer a solution that will give transparency to the House over the Government’s choice of procedure and ensure that the House can recommend that any negative instrument under clauses 7 to 9 instead be debated and voted upon as an affirmative instrument.

The Government have also tabled amendment 391, which will place our commitments to transparency in the Bill and require that explanatory memorandums relating to each statutory instrument include a number of specific statements. The amendments are aimed at improving the scrutiny and transparency of the SIs that are to come. If the House accepts them, they will together be more than the sum of their parts. The combination of the proposals of the Committee and the Government will mean that any deficiency the Government identify in retained EU law will be transparent to the House. In the light of this information, or any other concerns, the House will have a mechanism to propose a negative instrument for the increased scrutiny provided by a debate and a vote in the House.

I particularly noted what my right hon. Friend the Member for Broxtowe (Anna Soubry) said about the political costs of not complying with the Committee’s recommendation. She nods; I am grateful. I am confident that, given that this proposal is in harmony with the way in which other Select Committees work in relation to the Government, it will provide an adequate means of holding Ministers to account on the choice of procedure.

[Mary Creagh]

In the absence of the hon. Member for Broxbourne (Mr Walker), whose proposal this is, does the Minister envisage introducing the enhanced sift procedure—the mechanism for informing other Select Committees or Members with a particular interest in a subject—on Report?

[Mr Baker]

The hon. Lady has put her point on the record, but what we are doing is accepting the amendments tabled by my hon. Friend the Member for Broxbourne. I also draw her attention to the Standing Orders.

A number of Members have referred to the general need for a reform of the scrutiny of statutory instruments. I spent a very informative weekend reading the Hansard Society’s book “The Devil is in the Detail”, which I recommend to any Member who wishes to be fully apprised of the case for the reform of delegated legislation, but I must add that this is not the moment for a complete reform of secondary legislation. What we need to do is accept the amendments from the Procedure Committee, and to move forward.