Matthew Pennycook
Main Page: Matthew Pennycook (Labour - Greenwich and Woolwich)Department Debates - View all Matthew Pennycook's debates with the Attorney General
European Union (Withdrawal) Bill
Matthew Pennycook ExcerptsWednesday 15th November 2017
(7 years, 1 month ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 15 November 2017 - (15 Nov 2017)
Sir William Cash (Stone) (Con)
On a point of order, Dame Rosie. On the yesterday’s selection list—and, in part, today’s—there are some extremely helpful references to the page numbers of this enormous wodge of amendments. Would it be possible for the Clerks to be good enough to put the page numbers on the selection list for easy reference, because it is sometimes quite difficult to find the amendments at short notice?
The Second Deputy Chairman of Ways and Means (Dame Rosie Winterton)
I will certainly bring that to the attention of the Public Bill Office and see what we can do to help.
New Clause 2
Retaining Enhanced Protection
“Regulations provided for by Acts of Parliament other than this Act may not be used by Ministers of the Crown to amend or modify retained EU law in the following areas—
(a) employment entitlement, rights and protections;
(b) equality entitlements, rights and protections;
(c) health and safety entitlement, rights and protections;
(d) fundamental rights as defined in the EU Charter of Fundamental Rights.”—(Matthew Pennycook.)
This new clause would prevent delegated powers from other Acts being used to alter workplace protections, equality provisions, health and safety regulations or fundamental rights.
Brought up, and read the First time.
The Second Deputy Chairman of Ways and Means
With this it will be convenient to discuss the following:
New clause 15—Provisions relating to the EU or the EEA in respect of EU-derived domestic legislation—
“HM Government shall make arrangements to report to both Houses of Parliament whenever circumstances arising in section 2(2)(d) would otherwise have amended provisions or definitions in UK law had the UK remained a member of the EU or EEA beyond exit day.”
This new clause would ensure that Parliament is informed of changes in EU and EEA provisions that might have amended UK law if the UK had remained a member of those institutions beyond exit day.
New clause 25—Treatment of retained law—
“(1) Following the commencement of this Act, no modification may be made to retained EU law save by primary legislation, or by subordinate legislation made under this Act.
(2) By regulation, the Minister may establish a Schedule listing technical provisions of retained EU law that may be amended by subordinate legislation.
(3) Regulations made under subsection (2) will be subject to an enhanced scrutiny procedure including consultation with the public and relevant stakeholders.
(4) Regulations may only be made under subsection (2) to the extent that they will have no detrimental impact on the UK environment.
(5) Delegated powers may only be used to modify provisions of retained EU law listed in any Schedule made under subsection (2) to the extent that such modification will not limit the scope or weaken standards of environmental protection.”
This new clause provides a mechanism for Ministers to establish a list of technical provisions of retained EU law that may be amended by subordinate legislation outside of the time restrictions of the Bill.
New clause 50—Continuing validity in the United Kingdom of European Union law—
“(1) The European Communities Act 1972 shall continue to have effect in the United Kingdom after the date on which the United Kingdom leaves the European Union as if the United Kingdom continued to be bound by the Treaties.
(2) Accordingly all such rights, powers, liabilities, obligations and restrictions created or arising by or under the Treaties, and all such remedies as provided for by or under the Treaties, as in accordance with the Treaties are without further enactment given legal effect or used in the United Kingdom shall continue to be recognised and available in law, and be enforced, allowed and followed accordingly.
(3) Subsections (1) and (2) do not apply to any primary legislation passed by Parliament coming into force after the date of exit from the European Union which includes a provision to the effect that that Act, or specified provisions of that Act, have effect notwithstanding the provisions of section (Continuing validity in the United Kingdom of European Union law)(1) and (2) of the European Union (Withdrawal) Act 2017.”
New clause 51—Duty of review of European Union law—
“(1) The Prime Minister must lay before Parliament within six months of the date of the United Kingdom leaving the European Union, and at least once a year thereafter, a review of all European Union legislation and decisions still applicable to the United Kingdom, with proposals for re-enactment, replacement or repeal by the United Kingdom Parliament of any provisions of European Union law, with or without modification, as United Kingdom legislation.
(2) The House of Commons may appoint or designate one or more select committees to consider any report under subsection (1).”
New clause 55—Treatment of retained law (No. 2)—
“(1) Following the day on which this Act is passed, no modification may be made to retained EU law except by primary legislation, or by subordinate legislation made under this Act.
(2) The Secretary of State must by regulations establish a schedule listing technical provisions of retained EU law that may be amended by subordinate legislation.
(3) Subordinate legislation to which subsection (2) applies must be subject to an enhanced scrutiny procedure, to be established by regulations made by the Secretary of State after approval in draft by both Houses of Parliament, which must include consultation with the public and relevant stakeholders.
(4) Delegated powers may be used only to modify provisions of retained EU law listed in any Schedule made under subsection (2) to the extent that such modification will not limit the scope or weaken standards of equalities, environmental and employment protection, and consumer standards.”
This amendment would qualify the powers conferred to alter law by statutory instrument after exit day.
New clause 58—Retaining Enhanced Protection (No. 2)—
“Regulations provided for by Acts of Parliament other than this Act may not be used by Ministers of the Crown to amend, repeal or modify retained EU law in the following areas—
(a) employment entitlement, rights and protection;
(b) equality entitlements, rights and protection;
(c) health and safety entitlement, rights and protection;
(d) consumer standards; and
(e) environmental standards and protection.”
This new clause would ensure that after exit day, EU-derived employment rights, environmental protection, standards of equalities, health and safety standards and consumer standards can only be amended by primary legislation or subordinate legislation made under this Act.
Amendment 200, in clause 2, page 1, line 12, after “passed” insert “and commenced,”.
Amendment 87, page 1, line 19, at end insert
“or any enactment to which subsection (2A) applies.
‘(2A) This subsection applies to any enactment of the United Kingdom Parliament which—
(a) applies to Wales and does not relate to matters specified in Schedule 7A to the Government of Wales Act 2006,
(b) applies to Scotland and does not relate to matters specified in Schedule 5 to the Scotland Act 1998,
(c) applies to Northern Ireland and does not relate to matters specified in Schedules 2 or 3 to the Northern Ireland Act 1998.’”
This amendment would alter the definition of EU retained law so as only to include reserved areas of legislation. This will allow the National Assembly for Wales and the other devolved administrations to legislate on areas of EU derived law which fall under devolved competency for themselves.
Amendment 201, page 1, line 19, at end insert—
“(2A) For the purposes of this Act, any EU-derived domestic legislation has effect in domestic law immediately before exit day if—
(a) in the case of anything which shall apply or be operative from a particular date, applies or is operative before exit day, or
(b) in any other case, it has been commenced and is in force immediately before exit day.”
Clause 2 stand part.
Amendment 217, in clause 3, page 2, leave out lines 13 to 22.
This amendment, along with Amendment 64 to Schedule 8 would exclude the European Economic Area agreement from the Bill, allowing the UK to remain in the EEA.
Amendment 356, page 2, line 22, at end insert—
“(2A) A Minister of the Crown may by regulations provide for prospective EU legislation to form part of domestic law as it has effect in EU law, from the time at which it begins to apply or from some later time.
(2B) In subsection (2A) “prospective EU legislation” means—
(a) an EU regulation which is adopted, notified or in force immediately before exit day, or
(b) EU tertiary legislation made under retained EU law, so far as it is not operative immediately before exit day.
(2C) A statutory instrument containing regulations under subsection (2A) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
The amendment would allow Ministers, with parliamentary approval, to apply EU legislation which has been passed before exit day but does not take full effect until after that day, along with subordinate measures made for the purposes of EU legislation which is retained under the Bill and taking effect after exit day.
Clause 3 stand part.
New clause 29—Parliamentary vote on withdrawal from European Economic Area—
“The requirement of this section is that each House of Parliament has passed a resolution in the following terms—
That this House supports the United Kingdom’s withdrawal from the European Economic Area.”
This new clause describes the requirement for each House of Parliament to agree to withdrawal from the European Economic Area and is linked to Amendment 128 which makes the exercise of the power to make regulations implementing the withdrawal agreement contingent on such agreement.
Amendment 128, in clause 9, page 7, line 8, at end insert—
“(3A) No regulations may be made under this section until the requirement of section (Parliamentary vote on withdrawal from European Economic Area) have been met.”
This amendment makes the exercise of the power to make regulations implementing the withdrawal agreement contingent on the requirement for separate agreement on withdrawal from the European Economic Area of NC29.
New clause 22—EEA Agreement—
“(1) No Minister may, under this Act, notify the withdrawal of the United Kingdom from the EEA Agreement, whether under Article 127 of that Agreement or otherwise.
(2) Regulations under this Act may not make any provision that would constitute a breach of the United Kingdom’s obligations under the EEA Agreement.
(3) Regulations under this Act may not amend or repeal subsection (1) or (2).”
New clause 9—European Economic Area—
“The United Kingdom shall, after exit day, remain a member of the European Economic Area as set out in the European Economic Area Act 1993, and the provisions in Part 2 of Schedule 8 relating to the United Kingdom‘s membership of the EEA shall not take effect until such time as Ministers have published a White Paper assessing the costs and benefits for the UK economy of remaining a member of the European Economic Area after exit day.”
This new Clause would ensure that the UK can remain a member of the European Economic Area until such time as Ministers publish a specific assessment in the form of a White Paper setting out the costs and benefits for the UK of remaining a member after exit day.
New clause 23—EFTA membership—
“The Secretary of State shall, no later than six months after this Act has gained Royal Assent, lay a report before Parliament setting out an assessment of whether it would be in the interests of the United Kingdom to join the European Free Trade Association (EFTA) and, if so, whether it should remain a party to the EEA Agreement as a member of EFTA.”
New clause 45—European Economic Area (No. 2)—
“Nothing in this Act authorises the Prime Minister to give notice under Article 127 of the EEA Agreement of the United Kingdom’s intention to opt out of the EEA.”
Amendment 64, page 54, in schedule 8, leave out paragraphs 12 to 17.
This amendment would retain the provisions of the European Economic Area Act 1993 as part of domestic legislation beyond exit day.
Matthew Pennycook
It is a pleasure to serve under your chairmanship, Dame Rosie.
I will speak to new clause 58. Clauses 2 to 4 provide for the preservation of EU and EU-related law post-exit day in a new category of law, retained EU law, which itself comprises three principal sub-categories. Clause 2 provides that existing domestic legislation that implements EU law obligations remains on the domestic statute book after exit day. This will be known as EU-derived domestic legislation and includes, for example, secondary legislation enacted under section 2(2) of the European Communities Act 1972 for the purpose of implementing EU directives.
Clause 3 converts direct EU legislation into domestic legislation at the point of exit. This covers EU law, such as EU regulations and decisions that have direct effect in the UK because the UK is an EU member state, but which would fall once the UK is no longer bound by the treaties. Clause 4 provides that any remaining EU rights and obligations that do not fall within clauses 2 and 3 continue to be recognised and available in domestic law after exit. This includes, for example, directly effective rights contained within EU treaties that are sufficiently clear, precise and unconditional as to confer rights directly on individuals.
The purpose of new clause 58 is straightforward. It is to ensure that retained EU law, as preserved in clauses 2 to 4, in five key areas—employment, equality, health and safety, consumer and environment—is accorded a level of enhanced protection that it would otherwise not enjoy from delegated powers contained in Acts of Parliament other than the one before us today.
Lady Hermon (North Down) (Ind)
I am grateful to the hon. Gentleman for allowing me to make an early intervention. For clarification for those of us who represent constituencies in Northern Ireland, is it intended by the Labour party that these amendments would extend to Northern Ireland? If so, what consultation has the Labour party had with any of the political parties in Northern Ireland about the content of the amendments?
Matthew Pennycook
With all due respect, that issue will be more prominently dealt with during the days of debate on devolution. I understand that EU retained law will apply across the United Kingdom.
In the respect that I set out, new clause 58 is broadly similar in its intent to new clauses 25 and 55, both of which have as their primary purpose the prevention of modification of retained EU law save by primary legislation or by subordinate legislation made under this Act. If pushed to a vote we would be minded to support either of those new clauses.
The array of rights, entitlements, protections and standards that we currently enjoy as a member of the European Union are underpinned by EU provisions. They either have direct effect as a result of the treaties or are protected in delegated legislation under the ECA. Either way, they currently enjoy a form of enhanced protection as a result of this underpinning. After the UK has left the EU, that enhanced protection will fall away. The Opposition have repeatedly emphasised that Brexit must not lead to any watering down or weakening of EU-derived rights, particularly rights and standards in the areas of employment, equality, health and safety, consumer and environment. Working in conjunction with our amendments relating to clauses 7, 8, 9 and 17 that seek to limit and constrain the sweeping Executive powers contained in this legislation, new clause 58 seeks to guarantee that rights, entitlements, protections and standards in these areas are not just transposed and maintained, but are effectively protected thereafter.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
My hon. Friend is making some very important points. I, too, support new clause 58 and the provisions in new clauses 55 and 25. New clause 58 makes a clear point about the protection of equality rights. In the light of the wonderful news that came overnight from Australia about marriage equality, does he agree that it is crucial that we send out a signal to the LGBT+ community in the United Kingdom that we respect their rights and will retain them?
Matthew Pennycook
I could not agree more. That is exactly what new clause 58 would do; it would provide enhanced protection for equality, rights and protections after we have left the EU.
Taken at face value, clauses 2 to 4 appear relatively straightforward. But, as many hon. Members who spoke in yesterday’s debate made clear, the Bill as drafted creates a considerable degree of ambiguity and uncertainty as to the status of retained EU law. Currently the status of rights, protections and standards underpinned by EU law is distinct.
Treaty provisions and regulations that take effect through section 2(1) of the ECA are neither primary nor secondary legislation. The principle of the supremacy of EU law and the ECA means that, in practice, they have a particular constitutional status that enables them to take priority over primary legislation enacted by Parliament. Similarly, secondary legislation made under section 2(2) of the ECA is distinct from other secondary legislation in that it could take priority over primary legislation because of the fact that it is giving effect to an EU law obligation. Primary legislation that gives effect to an EU law obligation could be amended by Parliament, but any removal of an underlying EU law could be challenged in the courts.
Post-exit, it is unclear what status—primary, secondary or something else entirely—retained EU law will have. From schedule 1, one might draw the inference that retained EU law has the characteristics of secondary, rather than primary, legislation. Yet paragraph 19 of schedule 8 provides that, for the purposes of the Human Rights Act 1998, direct EU legislation
“is to be treated as primary legislation”,
although this schedule does not cover those rights recognised and made available in domestic law after exit by means of clause 4.
Clauses 5 and 6 provide guidance as to how the courts should interpret retained EU law in the event of a conflict with an enactment passed after exit day, but it is not yet clear—as we debated at length yesterday—whether the courts will treat particular retained EU laws as constitutional legislation that is not susceptible to implied repeal.
The uncertainty that surrounds the status and interpretation of retained EU law is a real weakness of the legislation and it is crucial that it is clarified and addressed on the face of the Bill. But, irrespective of what status particular retained EU laws are eventually accorded, this new category of law—detached from the enhanced protection enjoyed as a result of being underwritten by our membership of the EU—will be vulnerable to amendment not just from the delegated powers contained in this Bill, but from subordinate legislation contained in other Acts of Parliament.
Caroline Lucas (Brighton, Pavilion) (Green)
The hon. Gentleman is making a powerful case. Does he agree that if we are to have the deep and special relationship that Ministers say they want with the rest of the EU, we have no choice but to continue to harmonise our standards on employment rights, equality, and health and safety? Even if they were not good things to do in their own right, which they are, it will be crucial to keep those standards at the same level as the EU or higher if we are to have that kind of trading relationship.
Matthew Pennycook
The hon. Lady makes a good point. Of course we will need to do that, and businesses will have to comply with those standards. That is why we need to ensure that the EU and EU-derived rights we have are underpinned by an enhanced status. We will then need to move on to the conversation—which we will have to have—about how to stay in some form of regulatory alignment, if we want the type of deep and comprehensive deal that I think both sides envisage.
Michael Tomlinson (Mid Dorset and North Poole) (Con)
I have been listening carefully to the hon. Gentleman’s speech. Does he accept that so many of these rights existed before we joined the EU and will still be there after we leave the EU? They are not, and need not be, dependent on the European Union. It is this place that will and can safeguard those rights.
Matthew Pennycook
The hon. Gentleman may have missed my point. I completely accept the fact that these rights will be brought into UK law, that they will not be underpinned by EU provisions and that many of them were there first and have been added to over the decades of our membership. What we are talking about here is ensuring that retained EU law cannot be chipped away at by secondary legislation—that it has an enhanced status and must be amended only by primary legislation debated in full in this Chamber.
Mr Dominic Grieve (Beaconsfield) (Con)
The hon. Gentleman is right. It is the curiosity of this legislation that laws that the public, if we were to raise these issues with them, would regard for the most part as being of very considerable importance are being brought to the lowest possible status on their return here, and without there really being an opportunity, for obvious reasons, to revisit this issue domestically in a way that might lead us to enact fresh legislation.
Matthew Pennycook
I could not have put it better myself. That is precisely the problem, and that is precisely what new clause 58 seeks to address.
The uncertainty that surrounds the status and interpretation of retained EU law is a real weakness, but irrespective of what happens, retained EU law, as defined in the Bill, is vulnerable to secondary legislation contained in other Acts of Parliament, which will have been drafted in a very different context—in the context of a country whose long-term future appeared to reside unambiguously in the European Union.
Perhaps the most potent example is the Legislative and Regulatory Reform Act 2006. Part 1 provides for Ministers to introduce statutory instruments to remove burdens resulting from legislation, including primary legislation. A burden, for the purpose of that part of the Act, includes a financial cost or
“an obstacle to efficiency, productivity or profitability”.
That Act is a potent piece of legislation as it is, but it will be far more so as a result of this Bill if it can be used to alter a raft of EU rights and protections that are currently underpinned by EU provisions.
This is not just about the powers in the Legislative and Regulatory Reform Act. Other examples come to mind, such as section 5 of the Localism Act 2011 and section 11 of the Public Bodies Act 2011. All contain wide powers to alter regulations, and all were passed in the constitutional context of our rights and protections being underpinned by our EU membership. All will become more powerful after exit today.
Retained EU law would also be vulnerable to recently proposed legislation and legislation currently making its way through this place. For example, the Nuclear Safeguards Bill, which is currently in Committee in this House, contains proposed new clause 76A(6) to the Energy Act 2013, which provides that the delegated power in section 113(7) of the Energy Act can be used to make changes to retained EU law. Similarly, clause 2(6) of the recently published Trade Bill provides for regulations that can be used to modify primary legislation, including retained EU law. The same, we can only assume, is likely to be the case for the immigration, agriculture and other Bills we expect in the coming months as part of the process of legislating for Brexit.
New clause 58 would ensure that regulations of the kind provided for by those Bills could not be used to amend or repeal retained EU law in the five areas I have set out, thereby according them a level of enhanced protection. That is important because any future Government could easily use secondary legislation contained in a variety of past and future Acts of Parliament to chip away at rights, entitlements, protections and standards that the public enjoy and wish to retain.
In the interests of brevity, let me illustrate the risks posed if we do not pass new clause 58 or a similar new clause, by focusing on employment entitlement, rights and protection. As hon. Members will know, a substantial part of UK employment rights is derived from EU law, and an even larger body is guaranteed by EU law. As such, key workers’ rights enjoy a form of enhanced protection. Those include protections against discrimination owing to sex, pregnancy, race, disability, religion and belief, age, and sexual orientation; equal pay between men and women for work of equal value; health and safety protection for pregnant women, and their rights to maternity leave; a degree of equal treatment, in broad terms, for the growing number of fixed-term, part-time and agency workers; rights to protected terms and conditions, and rights not to be dismissed on the transfer of an undertaking; and almost all the law on working time, including paid annual leave and limits on daily and weekly working time.
Whether it is the working time regulations guaranteeing rights to holiday pay and protections from excessive working hours, which will be preserved via clause 2 of this Bill, or the right to equal pay contained in article 157 of the treaty on the functioning of the European Union, which will presumably be preserved via clause 4, these rights will not enjoy enhanced protection after exit day and will be at risk of amendment from regulations set out in other Acts of Parliament if this new clause or a similar one is not passed.
Now, it is true the Government have promised to ensure that workers’ rights are fully protected and maintained after the UK’s departure from the EU, but in the absence of stronger legal safeguards, there are good reasons to be sceptical about that commitment.
Alison McGovern (Wirral South) (Lab)
Does my hon. Friend agree that, given the political events of this year, it has become ever more uncertain who the Government might be in the future? Therefore, all of us have the job of protecting the process and the institutions of our democracy, because we never know what might happen in the future.
Matthew Pennycook
I agree with that, and I agree—I think this was also my hon. Friend’s point—that the public will expect these rights to continue to have the protection they have enjoyed while being underpinned by EU law. These rights should not have a reduced level of protection in the future.
Matthew Pennycook
I will make a little more progress if that is all right.
Let me remind the House of the sentiments on the Government Benches when it comes to workers’ rights. Throughout the referendum, prominent leavers drew attention to what they claimed was the high cost of EU employment regulations, including those such as the working time directive and the temporary agency work directive. Prominent members of the Cabinet are on record as having called for workers’ rights to be removed. For example, the Foreign Secretary has written that we need
“to root out the nonsense of the social chapter—the working time directive and the atypical work directive and other job-destroying regulations.”
During the referendum, on 18 May 2016, the then Minister for Employment, the right hon. Member for Witham (Priti Patel), went so far as to call for the UK to
“halve the burdens of EU social and employment legislation”
in the event of Brexit. The newest member of the Brexit ministerial team—Lord Callanan—has openly called for the scrapping of the working time directive, the temporary agency work directive, the pregnant workers directive and
“all the other barriers to actually employing people.”
Just this week, the hon. Member for North East Somerset (Mr Rees-Mogg) made a speech in London calling for, among other things, deregulation. It was retweeted and then hastily deleted, as we heard yesterday, by the Department for International Trade.
Tom Brake
I wonder whether the hon. Gentleman is about to quote Mr Dyson. When leave supporters wanted to quote a business, it was usually Mr Dyson’s or JCB. Now that Mr Dyson welcomes the fact that leaving the EU means he will be able to hire and fire people more easily, I wonder whether they will quote him quite so often.
Matthew Pennycook
I was not going to quote Sir James Dyson, but the right hon. Gentleman has, happily, added to my remarks.
Mr Jacob Rees-Mogg (North East Somerset) (Con)
I am flattered that the hon. Gentleman pays such close attention to my speeches. I was talking about regulation in the City of London, not employment regulation. I think there is now consensus across the political firmament that employment regulations will remain in place, which is one of the reasons why his new clause is not necessary.
Matthew Pennycook
I am happy to be corrected on that point, but I would say to the hon. Gentleman that it is a bit rich to suggest that the many public pronouncements that have been made on employment rights over many years by so many Conservative Members have been forgotten entirely and that Conservative Members are suddenly the champions of enhanced workers’ rights. We do not believe that, which is why we need legal safeguards in the Bill.
Matthew Pennycook
I am going to make some progress.
It may be the case that pragmatism and electoral appeal trump ideology, but there is no guarantee, and that is the point. We should not take risks with rights, standards and protections that have been underpinned by EU law. Hard-won employment entitlements, along with entitlements relating to the environment, health and safety, equalities and consumer rights, should not be vulnerable to steady erosion by means of secondary legislation outside of the powers contained in this Bill. In future, Ministers should be able to change the workers’ rights and other rights that came from the EU only through primary legislation, with a full debate in Parliament. On that basis, I urge hon. Members on both sides of the House to support new clause 58.
Helen Goodman (Bishop Auckland) (Lab)
On a point of order, Dame Rosie. Yesterday’s selection list meant that it was not possible to debate the amendments on the customs union or on the European agencies. I do not say this as a criticism of the Chair—obviously, a selection has to be made—but these are extremely important areas of European law, which, as the current schedule stands, we will not now have an opportunity to debate. However, the Government did say that they were prepared, if need be, for extra time to be given to the Committee stage in the House. How might we facilitate securing more time to debate these extremely important issues?
Jack Dromey (Birmingham, Erdington) (Lab)
The Government say, “Trust us, workers’ rights are safe.” As someone who has fought for workers’ rights for 40 years, rising from being a lay member to ultimately being elected deputy general secretary of the Transport and General Workers Union, I have seen often implacable hostility from Tory Governments towards workers and their trade unions in every decade since we joined the EU, ranging from when we were described in the 1980s as the “enemy within” to, more recently, the Trade Union Bill 2015.
In the referendum campaign, what the wide-eyed Brexiteers now driving the Government would like to see in our country could not have been clearer. The right hon. Member for Chingford and Woodford Green (Mr Duncan Smith) pledged to “whittle away” the regulation “burden” with its
“intrusions into the daily life of citizens.”
Lord Lawson called for a “massive” regulatory cull. The ex-International Development Secretary, the right hon. Member for Witham (Priti Patel), said:
“If we could just halve…the EU social and employment legislation we could deliver a £4.3 billion boost to the economy.”
Indeed, the previous Prime Minister talked about killing off the safety culture. Anyone who had stood outside Wembley stadium with 1,000 workers mourning the death of somebody who had just been crushed at work would not talk about killing off the safety culture. And the Foreign Secretary said during the Brexit campaign that the weight of employment legislation is now “back-breaking” and that his preferred model is to scrap the social charter.
I do not doubt for one moment that there are truly honourable Members on the Conservative Benches who mean it when they say that workers’ rights will be safe; the question is how we safeguard that in the next stages.
Let me tell just one story showing why this matters—why European Union law mattered to British workers, and, crucially, why it matters that we get it right to protect workers’ rights as we leave the EU. In 1977 the EU legislated for the acquired rights directive, and our Government had to introduce it into domestic law. Eventually it was introduced, with gritted teeth, in 1983, with William van Straubenzee saying in the House that he did so “with the utmost reluctance.” But the Tories then excluded the public sector; 10 million public servants were excluded for 10 years. The price that was paid, as we saw mass privatisation throughout the 1980s, was catastrophic for workers.
I remember the first example I dealt with, at the Fire Training College at Moreton-in-Marsh: 120 predominantly women housekeepers and catering workers had their pay cut by a third and the numbers employed cut by a half, holiday entitlement cut, and sickness entitlements cut. The only humorous side of an otherwise sad story was that the managing director of Grand Met Catering which won the contract was—I kid thee not—none other than a Mr Dick Turpin.
These situations went on for year after year. Let me give another example. My uncle Mick, God rest his soul, was a street-cleaner. He lived with me when I was a kid. He worked for Brent Council. I will never forget when Brent street-cleaners and refuse collectors were facing privatisation. During a meeting in their canteen one morning, the street-cleaners sat together, many of them disabled workers, in fear of what would happen because they knew that the bids coming in would result in a third of the workforce going, and they might be the most likely to go. I remember that my Uncle Mick’s good friend—a single man living alone—collapsed in tears afterwards at the thought of what loomed before him. There was 10 years of that throughout the 1980s.
I then took the case of the Eastbourne dustmen to the European Court of Justice and the European Commission, and we won. Thanks to EU law, our Government were forced to extend TUPE to cover 10 million public servants. It is vital in the next stages that there can never be any going back.
Time does not permit me to talk about other examples of implacable hostility: GCHQ, the refusal to sign the social charter, the national minimum wage, employment tribunal fees and the Trade Union Bill.
In conclusion, I stress again that I draw a distinction between the many Government Members who mean what they say and those who are in the driving seat, taking us ever closer to the cliff edge. When they say, “Trust us,” say no. That is why my hon. Friend the Member for Greenwich and Woolwich (Matthew Pennycook) was right to table new clauses that would safeguard workers’ rights as best we can. We cannot delegate to future Conservative Governments—if they still exist—the ability to change workers’ rights by way of Henry VIII powers, so that they can say, “Off with their heads.” On each and every occasion, as my hon. Friend argued, workers deserve the enhanced protection of any changes to their rights after we leave the European Union coming back to Parliament for debate, and changes being made only by an Act of Parliament. Is that ideal from my point of view? No, but it is at least a damn sight better than relying on Henry VIII powers in the hands of the Foreign Secretary—or who knows who?—at the next stage.
Matthew Pennycook
I know how many speakers have put in for the next debate, so I will be brief. It has been a good debate with many thoughtful contributions from both sides of the Committee, and I genuinely welcome the Solicitor General’s constructive tone. I also welcome the guarantee that, whether amendments are passed or not, we will have a Report stage. That suggests to me that, as we have long suspected, the Government draftsmen are busily at work.
However, on the central purpose of new clause 58—the need to secure enhanced protection for retained EU law from secondary legislation contained in other Acts of Parliament—the Minister offered no meaningful concessions. As such, I will test the will of the Committee on that matter when the time comes, but I will not press new clause 2 to a vote. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 25
Treatment of retained law
“(1) Following the commencement of this Act, no modification may be made to retained EU law save by primary legislation, or by subordinate legislation made under this Act.
(2) By regulation, the Minister may establish a Schedule listing technical provisions of retained EU law that may be amended by subordinate legislation.
(3) Regulations made under subsection (2) will be subject to an enhanced scrutiny procedure including consultation with the public and relevant stakeholders.
(4) Regulations may only be made under subsection (2) to the extent that they will have no detrimental impact on the UK environment.
(5) Delegated powers may only be used to modify provisions of retained EU law listed in any Schedule made under subsection (2) to the extent that such modification will not limit the scope or weaken standards of environmental protection.”—(Kerry McCarthy.)
This new clause provides a mechanism for Ministers to establish a list of technical provisions of retained EU law that may be amended by subordinate legislation outside of the time restrictions of the Bill.
Brought up, and read the First time.
Question put, That the clause be read a Second time.
The Temporary Chair
Order. Thirteen colleagues, and possibly more, have caught my eye with 130 minutes to go before we conclude at 10 o’clock. You can do the maths, and it is not that great. Please be mindful of others, and let us not have too many interventions. Let those who wish to speak, speak.
Matthew Pennycook
It is a pleasure to follow the right hon. Member for West Dorset (Sir Oliver Letwin), and I welcome the fact that he thinks this is a debate about means not ends. The debate should continue in that constructive spirit. I am particularly interested in his ideas for an environment Bill, presumably to be introduced before exit day, and his ideas about governance, which we will be debating in Committee on a later day.
I rise to speak to new clause 67 because I have not been entirely convinced by the right hon. Gentleman. The aim of the clause is simple: to ensure that the environmental principles set out in article 191(2) of the treaty on the functioning of the European Union—the precautionary principle, the principle that preventive action should be taken to avert environmental damage, the principle that environmental damage should as a priority be rectified at source, and the polluter pays principle—continue to be recognised and applied after exit day, which is important. In that respect, new clause 67 is broadly similar in its intent to new clauses 60 and 28. If either of those new clauses is pressed to a vote, we would be minded to support them.
The environmental principles set out in article 191 of the TFEU form an essential component of environmental law; they are not unique to environmental law, but they are principles of environmental law in general. The principles are also found in a number of international environmental treaties to which the UK is a signatory, including the convention on biological diversity, the convention on climate change and the convention on the law of the sea. At present, the UK gives effect to those obligations through its membership of the EU, and particularly through the Lisbon treaty.
As the hon. Member for Brighton, Pavilion (Caroline Lucas) and the right hon. Member for West Dorset said, the principles play three key roles: they are an aid to the interpretation of the law; they guide future decision making; and they are a basis for legal challenge in court.
The hon. Member for Brighton, Pavilion set out in great detail the wide range of areas in which the principles have led to tangible environment improvement benefits. As it stands, the Bill does not ensure that the environmental principles will be recognised and available in domestic law after exit, and as such does not retain those three key roles. The principles are not preserved by clause 4 because they do not confer directly effective rights on individuals. According to the legal advice that I have received, neither do they fall within the definition of the general principles of EU law that are to some extent preserved by the Bill, although the Minister may want to comment on that. Whereas the general principles apply across all EU law, by their very definition some environmental principles apply only to environmental law and policy.
If we are to retain the law we have, to be effective custodians of the environment and to be world leaders when it comes to environmental standards, it is imperative that we embed the principles in the way policy operates. To his credit, the Secretary of State for Environment, Food and Rural Affairs has recognised that. However, the Government have argued that environmental principles are interpretive principles, and that as such they should not form part of the law itself. I argue that the environmental principles are not simply guidance; as the hon. Member for Brighton, Pavilion mentioned, they have been given effect in EU law. Article 11 of the TFEU states:
“Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development.”
They are, therefore, a vital aid to understanding the role and function of existing legislation, as well as being an interpretative tool for decision makers and, if necessary, the courts.
For the principles to have equivalence on exit day, they must be placed in domestic legislation. I recognise that a consultation on this subject has been announced, but it will not report back before the Bill has progressed through this place. There is good reason to doubt that the direction of travel being signalled by the Government—namely, a reliance on UK case law, judicial review and some form of policy guidance—will do the job, even if all that operates alongside governance arrangements in the form of an as yet undefined watchdog, although the right hon. Member for West Dorset gave some valuable insight into what the Government are thinking in that respect.
UK case law is unlikely to retain and capture the effect of all the principles set out in article 191, as that would limit enforceability to where the principles already exist in case law. It is difficult to see how judicial review, which looks only at the legality of a decision or action rather than its scientific merits, will materially apply core environmental principles. Likewise, reliance on policy guidance—something explicitly referred to by the Secretary of State recently in evidence to the Environmental Audit Committee—is arguably an inadequate basis on which to proceed. As the hon. Member for Brighton, Pavilion noted, policy guidance is necessarily limited in scope, but there is a strong case for ensuring that environmental principles apply across Government, informing law as well as policy, to match the rigour of the treaty obligations.
Policy guidance also entails a weaker duty on public bodies: policy statements are only guidelines or material considerations for public bodies to consider, meaning that they are less likely to influence a decision than a strict duty to comply. Policy guidance is impermanent; it is prey to changes resulting from short-term political agendas—under different Ministers and different Governments—and so does not provide long-term certainty, and it lacks the binding character of statute. There should be a clear duty to comply with environmental principles in statute, to match the current strong legal obligation set out in the treaty, and the courts should be able to enforce such a duty.
Luke Graham (Ochil and South Perthshire) (Con)
With respect to compliance, does the hon. Gentleman recognise the importance of strong UK frameworks? Although we have different jurisdictions throughout the UK, we have to make sure that we have standards that maintain the integrity of our internal market and protect the UK and the Union that we all support.
Matthew Pennycook
I agree with that, and I would add that if the environmental principles are brought into UK law in the fashion that I am describing, they will of course inform the frameworks for the devolved legislatures.
Matthew Pennycook
That point is very well made. I expect that other hon. Members will touch on that in more detail when they speak to amendments 93 to 95.
We support amendments 148 to 150 and new clause 34—the efforts of my hon. Friend the Member for Stretford and Urmston to remedy deficiencies in the Bill with respect to the rights of children. Her amendments are designed to preserve in domestic law any rights or obligations arising from the UN convention on the rights of the child, to ensure that Ministers act in such a way as to comply with that convention, and to protect from the delegated powers in the Bill the rights and obligations that flow from the convention.
The Minister of State, Ministry of Justice (Dominic Raab)
I am grateful for the opportunity to speak in support of clause 4 and to respond to today’s second group of amendments. I also appreciate the constructive tone of the hon. Member for Greenwich and Woolwich (Matthew Pennycook).
The two strategic objectives of the Bill are to take back democratic control over our laws, and to do so in a way that ensures a smooth Brexit. Clause 4 helps us to deliver on both aims. Before talking about the amendments and the application of that clause, it is worth briefly explaining the value of clause 4, which is a sweeper provision. Clause 2 retains UK implementing legislation deriving from EU instruments, and clause 3 incorporates direct EU legislation. Clause 4 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. In particular, it will ensure that we retain, on day one of exit, general principles of EU law and all directly effective rights. That means rights deriving from EU treaties that are sufficiently clear, precise and unconditional that they do not require separate bespoke implementing legislation. Instead, to date, they are relied on as national law without reference to any separate implementing legislation.