Oral Answers to Questions

Matthew Pennycook Excerpts

Thursday 3rd May 2018 Commons Chamber

[Suella Braverman]

My hon. Friend raises an important point. All those who work at the Department for International Trade are highly focused on how we can forge better links with new markets and new partners through our trade envoys and working groups. This heralds a new beginning and new opportunities for our country; I cannot understand why the Opposition will not welcome it.

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

Research into the Government’s own EU exit analysis was carried out last month by the House of Commons Library, and it suggests that leaving the customs union and ruling out a new comprehensive EU-UK customs union will create new customs barriers that could cost the economy billions over the next 15 years. Does the Minister accept that assessment? If not, what does the Department now put the cost at?

[Suella Braverman]

That analysis does not represent Government policy—it does not assess the Government’s preferred objectives. We are working towards a free trade agreement with the EU that will be as frictionless as possible, so that our businesses can continue to trade with and sell their goods into the EU, and vice versa. That is going to be good for the economy, good for the hon. Gentleman’s constituents and good for the country.

Oral Answers to Questions

Matthew Pennycook Excerpts

Thursday 15th March 2018 Commons Chamber

[Mr Baker]

I have good news for the hon. Lady. Both sides have agreed in principle that we should have a free trade agreement covering all sectors with zero tariffs. We believe that with a good-quality customs agreement we can achieve near-frictionless trade, and I believe that, taken together, those arrangements will ensure that our manufacturing industries, including aerospace, will have an ever brighter future.

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

The EEF—the voice of UK manufacturing and engineering—as well as ADS Group Limited, the CBI, the Institute of Directors and trade unions welcome Labour’s call for the negotiation of a comprehensive new UK-EU customs union post Brexit. Can the Minister name any significant manufacturing organisation or association that is on record as stating that either of the Government’s two customs propositions, set out in their future partnership paper in August last year, is remotely credible or workable?

[Mr Baker]

I remind the hon. Gentleman that his hon. Friend the Member for Brent North said that remaining in a customs union would be a “disaster”. What we need to do is stand up for the consumer interest, and that means taking control of our tariff policies while ensuring free and frictionless trade.

European Free Trade Association

Matthew Pennycook Excerpts

Wednesday 7th February 2018 Westminster Hall

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

It is a pleasure to wind up for the Opposition and to see you in the Chair, Mr Gapes. I join other hon. Members in congratulating the hon. Member for Wimbledon (Stephen Hammond) on securing this debate and on the considered way in which he framed the issue.

The Labour party has continually made clear that we want to seek a deal with the European Union that secures all the benefits of the single market and the customs union and that involves no diminution of the EU-derived rights—employment rights and equality rights—health and safety standards, and environmental protections and standards that we currently enjoy.

Jobs and the economy must be the Government’s priorities in the next phase of the negotiations, so it is absolutely right that Parliament debates in detail the pros and cons of any and every means of potentially securing a departure from the EU that protects both. I echo what many hon. Members have said in the debate this morning: every option must be kept on the table.

It reflects poorly on the Government that Back Benchers have to bring Ministers to Westminster Hall and have only an hour to speak on issues of this importance. We should be debating the pros and cons of European Free Trade Association arrangements and other arrangements in great detail on the Floor of the main Chamber; that we are not doing so is a missed opportunity.

I very much welcome the attempt by the hon. Member for Wimbledon to convince the Conservative party to ditch the ideological baggage, and to drag with him the Government and the small group on the Government Benches who favour—for ideological reasons—the hardest of departures from the European Union.

There are misconceptions about EFTA, and they need to be challenged. We need to have an honest debate about what the trade-offs and the compromises involved in an EFTA arrangement, or other arrangements, would be. However, all options must be considered and, as other hon. Members have said, nothing should be taken off the table.

In the brief time I have available to me, I will sound a few notes of caution about the trade-offs when it comes to EFTA, or at least examine some of them. I will start with the transition period, because a number of different views have been expressed this morning about whether EFTA would apply in the transition or afterwards and about the variants that it might cover.

I fail to see how EFTA could work in terms of a transitional arrangement, and that is for two reasons. The first is that, as we have argued for some time, the Government must pursue transitional arrangements on the same basic terms as those that apply now, which includes membership of the single market and the customs union, and would involve the jurisdiction of the European Court of Justice. That is supported by businesses and trade unions, and—if people pay any attention to what the European Commission has been saying on the EU27, they will know this—it is also the only option that is available. I cannot see how EFTA, as a transitional vehicle, could be realistically negotiated.

Even more importantly, an EFTA transition would in a sense entail what the Government—and we agree with them on this—have explicitly sought to avoid. Businesses and individuals do not want two points of transition towards the end state. They do not want a situation whereby they would depart the EU and go on to EFTA terms, and then go on from EFTA terms to the final end state of a bespoke deal.

[James Cartlidge]

What the hon. Gentleman talks about as a transition is not really a transition; it is an extension of existing membership, and there is no point in trying to deny that. EFTA can be a transition in this sense—that we go into it, as others have said, as a safe harbour. However, he seems to be ruling out the idea that, once we are in EFTA, there would ever be any further change, when it would clearly be in our national interest to look at how we might, for example, strengthen co-decision making or consider divergence within parts of the single market. The point is getting to a safe position to do that. That is what a transition is—not an extension of our existing membership.

[Matthew Pennycook]

I disagree, because I do not see a transitional arrangement on those terms as an extension of membership; we would lose our voting rights and our representation in the European Parliament. However, that is the only transitional arrangement on offer, and the one that the hon. Gentleman is suggesting is not a serious possibility. Also, as I have said, it would involve two points of disruption for businesses and individuals. For that reason, we favour a transition on the same basic terms as now. However, if we are talking realistically, and we are talking about a post-transitional arrangement, EFTA membership is clearly something that the Government should consider.

I will just probe a bit of the argument that the hon. Member for Wimbledon made in terms of there being a range of viable options open to the UK within EFTA, each of which warrants consideration. It is difficult to see what would be gained by EFTA membership alone. I take the point that obtaining it would secure for us access to the EFTA free trade area and the four EFTA states, as well as participation in trade agreements with the 27 countries in the EU, but in no way would that make up for the loss of trade that would come from losing the 50 preferential trade deals that the EU has with third countries or the many other trade deals that it is negotiating. Moreover, EFTA membership alone would not secure for the UK preferential access to the EU internal market.

In the same way, it is difficult to see how the Swiss model, or a variant of it, would work for the UK. As hon. Members will know, Switzerland has only partial access to the EU’s internal market. We must also consider services, the future of which is integral to our country. I know that the hon. Gentleman has real concerns about them, and we both do, because of our constituencies. Services are covered only to a limited extent by the Swiss model. Crucially, Swiss bilateral agreements do not provide for cross-border access in financial services. So it is difficult to see how the Swiss arrangement would work for the UK, notwithstanding the issues that it has in terms of its sustainability or the length of time that it has taken to negotiate.

[Stephen Hammond]

The hon. Gentleman is, of course, laying out the range of options I said were available and making the point about all their pros and cons. However, I think it was pretty clear from my speech that I think that the EFTA/EEA arrangement, which is what I argued for consistently throughout my speech, is the option, one, that I prefer and, two, that the Government should look at.

[Matthew Pennycook]

In a sense, the hon. Gentleman reinforces my point, which is that the realistic debate that we should be having is about the EEA/EFTA option. I do not think that the other options are particularly practical or desirable, for a variety of reasons, so that option—the EEA/EFTA one—is what we should concentrate on.

When it comes to the EEA/EFTA model, the Opposition recognise that it undoubtedly has a range of advantages.

[Kevin Hollinrake]

Earlier in his remarks, the hon. Gentleman mentioned the customs union. Is it the Opposition’s policy that we must remain in the customs union?

[Matthew Pennycook]

The Opposition’s policy is that a full customs union with the EU remains on the table; it should be an option that we explore, and I will come to the reasons why.

Despite the advantages that EFTA provides, it also has some inherent limitations. One of the most serious, which we have to grapple with if we are going to seriously consider and debate the advantages of the EEA/EFTA model, is what it would mean for the border in Northern Ireland. Unless that model is complemented with a customs union or customs arrangement of some kind, I do not necessarily think that EFTA alone would solve the problem in Northern Ireland.

That is because the agreements that the EFTA members have struck with third countries involve the collective dropping of tariffs. I do not think that those agreements can be supplemented with a customs union or customs arrangement in a way that would solve the problem in Northern Ireland. Earlier, the right hon. Member for Meriden (Dame Caroline Spelman) mentioned agriculture. There are issues within EFTA where there is explicit freedom to diverge, which I think makes the Northern Ireland border situation complicated, and it is certainly not clear that it would be solved by straight-up EFTA membership.

In addition, there are the concerns that have been raised about freedom of movement and payments into the EU budget. Neither of those issues is insurmountable, but we need to have a really honest debate about how we would reconcile the concerns that were raised in the referendum, and that undoubtedly lay behind the vote in the referendum, and the economic conditions that are required in the country going forward.

There are also very practical reasons why the EEA/EFTA option could be challenging. It is clear to me that the majority of the legal opinion on this shows—Professor Baudenbacher would say this himself—that the UK ceases to be a member of the EEA when we leave the EU. We cease to be a contracting party; article 1.26 of the EEA agreement says that very clearly. It is not clear—this needs further explanation—whether we could seamlessly join EFTA in a way that allows us to remain a member of the EEA agreement continuously. As a number of hon. Members have said, there are also real questions about whether the EFTA states—in particular, Norway—would be happy to have us join.

[Stephen Hammond]

They would.

[Chuka Umunna]

They would.

[Matthew Pennycook]

Well, they might be. I think there is a range of opinion out there about it; I have spoken to a number of different people with different views. The hon. Member for Wimbledon said that he had spoken to the ambassador and the professor himself. I note the comments of the Norwegian Prime Minister in August last year, when she said that the UK joining EFTA, even for a temporary period, would be a “challenging and costly” undertaking. Again, those concerns are not insurmountable, but we need to grapple with how realistic this option is and, in particular, with whether EFTA’s institutions—especially its court—could cope with the volume of cases that would land in them if the UK was to join EFTA.

All of that speaks to a wider point, which is that the four EFTA economies are very different from the UK economy. The size of the EFTA countries and the nature of their economies make UK membership of EFTA a challenging prospect.

All of that needs to be debated, and it cannot be debated in an hour and a half in Westminster Hall. The EFTA option should not be taken off the table, but there are real reasons why the Labour party believes that a bespoke deal following a transitional arrangement on basic terms should be what we are aiming for, and therefore EEA/EFTA would not be our first preference. However, as I say, the key point is that that option should not be taken off the table. In the end, it is up to Parliament to decide, which is why it is so important that we have a meaningful vote—

[Mike Gapes (in the Chair)]

Is the hon. Member bringing his remarks to a conclusion?

[Matthew Pennycook]

I am.

The issue should be for Parliament to decide, and this option should not be taken off the table. The Government need to give serious consideration to it or at least to provide time for debates about the pros and cons to allow us to explore why—if they have—they have ruled it out.

Oral Answers to Questions

Matthew Pennycook Excerpts

Thursday 1st February 2018 Commons Chamber

[Mr Baker]

The Government’s policy has been set out time and again. We will ensure not only that workers’ rights are preserved, but that they are enhanced and keep pace with the new working environment.

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

During our consideration of the European Union (Withdrawal) Bill in Committee, concerns were repeatedly raised that critical environmental rights and protections could be cast aside as we exit the EU. If the Government are serious about raising, not lowering, those rights and protections after Brexit, why have they so far failed to introduce an ambitious new environment Bill, but are instead, as we now know from the leaked papers, commissioning analysis suggesting that Brexit could present an opportunity to deregulate in such areas?

European Union (Withdrawal) Bill

Matthew Pennycook Excerpts

3rd reading: House of Commons & Report stage: Second Day: House of Commons
Wednesday 17th January 2018 Commons Chamber

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

I beg to move, That the clause be read a Second time.

[Mr Speaker]

With this it will be convenient to discuss the following:

New clause 2—Meaning of Withdrawal Agreement—

“It shall be the objective of Her Majesty’s Government to ensure that the arrangements for the UK’s withdrawal from the EU which comprise the “withdrawal agreement” specified in subsection (1) of section 14 shall include full, comprehensive and sufficient detail as if it were a legal instrument capable of acceptance and deposit as an international trade agreement at the World Trade Organisation, with detailed agreements on the following aspects of the future relationship between the United Kingdom and European Union including—

(a) geographical scope of application,

(b) regulatory cooperation,

(c) national security,

(d) cross-border trade in services,

(e) market access,

(f) tariff arrangements,

(g) tariff rate quotas on all products,

(h) customs duties on imports,

(i) duties, taxes and charges on exports,

(j) fees and charges,

(k) import and export restrictions,

(l) provisions concerning anti-dumping and countervailing measures,

(m) transparency,

(n) sanitary and phytosanitary measures,

(o) trade conditions,

(p) customs valuation,

(q) subsidies,

(r) dispute settlement and mediation,

(s) establishment of investments,

(t) non-discriminatory treatment,

(u) expropriation,

(v) enforcement of awards,

(w) mutual recognition of professional qualifications,

(x) cross-border financial services,

(y) prudential regulatory alignment,

(z) maritime transport services,

(aa) telecommunications,

(bb) electronic commerce,

(cc) competition policy,

(dd) state enterprises and monopolies,

(ee) government procurement,

(ff) intellectual property,

(gg) trade and sustainable development and the environment,

(hh) trade and labour standards and employment conditions and

(ii) taxation.”

This new clause would make it the objective of HM Government that the withdrawal agreement sought prior to exit day should include proposals setting out the full details expected of a comprehensive international trade agreement.

New clause 3—Republic of Ireland and Northern Ireland—

“(1) Nothing in the provisions made under section 8 or section 9 of this Act shall authorise any regulations which—

(a) breach any of the obligations of Her Majesty’s Government made under the Belfast Agreement implemented in the Northern Ireland Act 1998 (which made new provision for the government of Northern Ireland for the purpose of implementing the agreement reached at multi-party talks on Northern Ireland), or

(b) create hard border arrangements between Northern Ireland and the Republic of Ireland, or

(c) undermine the full alignment of the United Kingdom with the rules of the European Union Internal Market and the Customs Union which support North-South cooperation, the all-island economy and the protection of the Belfast Agreement.

(2) Subsection (1)(c) shall apply unless Her Majesty’s Government, the Government of the Republic of Ireland and the European Union agree alternative specific solutions which can continue to address the unique circumstances of the island of Ireland, the obligations of the Belfast Agreement and the avoidance of a hard border arrangement between Northern Ireland and the Republic of Ireland.”

This new clause would ensure that the aspects of the Phase 1 agreement between the UK and the EU regarding the Republic of Ireland and Northern Ireland are brought into UK law.

New clause 4—Financial Settlement—

“The Chancellor of the Exchequer shall publish, within one month of Royal Assent of this Act, the full details of the methodology agreed between Her Majesty’s Government and the European Union as set out in the “Joint Report from the Negotiators on Progress During Phase 1” which was published on 8 December 2017.”

This new clause would ensure that the agreed methodology for calculating the financial settlement between the UK and the EU set out in the Joint Report from the Negotiators of 8 December 2017 are published and brought into the public domain.

New clause 5—Trade in Services—

“It shall be the objective of Her Majesty’s Government, in negotiating a withdrawal agreement, to secure the same rights, freedoms and access available to UK businesses trading in services as exists through the United Kingdom’s membership of the European Union, as if section 1 of this Act were not brought into effect.”

This new clause would ensure that the negotiating objectives of Ministers would be to secure the same benefits for service sector trading businesses after exit day as are available under the existing Single Market and Customs Union arrangements by virtue of membership of the European Union.

New clause 6—Alteration to the notification under Article 50(2) of the Treaty on the European Union—

“Her Majesty’s Government shall publish a summary of the legal advice it has received in respect of the ability of the United Kingdom to extend, alter or revoke the notification, under Article 50(2) of the Treaty on the European Union, of the United Kingdom’s intention to withdraw from the EU.”

This new clause would require Ministers to place in the public domain a summary of the legal advice they have received concerning the options available for the United Kingdom in respect of the notification made under Article 50 of the Treaty on the European Union.

New clause 10—Governance and institutional arrangements—

“(1) Before exit day a Minister of the Crown must make provision that all powers and functions relating to any right, freedom, or protection, that any person might reasonably expect to exercise, that were exercisable by EU entities or other public authorities anywhere in the United Kingdom before exit day, and which do not cease to have effect as a result of the withdrawal agreement (“relevant powers and functions”) will—

(a) continue to be carried out by an EU entity or public authority;

(b) be carried out by an appropriate existing or newly established entity or public authority in the United Kingdom; or

(c) be carried out by an appropriate international entity or public authority.

(2) For the purposes of this section, relevant powers and functions relating to the UK exercisable by an EU entity or public authority include, but are not limited to—

(a) monitoring and measuring compliance with legal requirements;

(b) reviewing and reporting on compliance with legal requirements;

(c) enforcement of legal requirements;

(d) setting standards or targets;

(e) co-ordinating action;

(f) publicising information.

(3) Responsibility for any functions or obligations arising from retained EU law for which no specific provision has been made immediately after commencement of this Act will belong to the relevant Minister until such a time as specific provision for those functions or obligations has been made.”

This new clause would ensure that substantive rights and protections cannot be removed by the “back door”, and that the institutions and agencies that protect EU derived rights and protections are replaced to a sufficient standard so those rights and protections will still be enjoyed in practice.

New clause 11—Meaningful vote on deal or no deal—

“(1) The Prime Minister must publish and lay before both Houses of Parliament an assessment of the impact on the economy of the United Kingdom, and on each nation, province or region of the United Kingdom, of any unratified agreement between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU.

(2) Any agreement between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU may not be ratified unless—

(a) subsection (1) has been complied with,

(b) the House of Lords has considered a motion relating to the unratified agreement,

(c) the House of Commons has approved the unratified agreement by resolution,

(d) the statute mentioned in section 9 (approving the final terms of withdrawal of the United Kingdom from the European Union) has been passed, and

(e) any other legislative provision to enable ratification has been passed or made.

(3) If no agreement has been reached by 31 December 2018 between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union setting out the arrangements for the United Kingdom’s withdrawal from the EU, the Prime Minister must publish and lay before both Houses of Parliament within one month an assessment of the impact on the economy of the United Kingdom, and on each nation, province or region of the United Kingdom, of leaving the EU under Article 50(3) of the Treaty on European Union without an agreement.

(4) If no agreement has been reached by 31 January 2019 between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union setting out the arrangements for the United Kingdom’s withdrawal from the EU,

(a) a Minister of the Crown must propose a motion in the House of Lords relating to the lack of an agreement, and

(b) a Minister of the Crown must propose a motion in the House of Commons approving the intention of the United Kingdom to leave the EU under Article 50(3) of the Treaty on European Union without a withdrawal agreement.

(5) Unless the House of Commons approves by resolution after 31 January 2019 the intention of the United Kingdom to leave the EU under Article 50(3) of the Treaty on European Union without a withdrawal agreement, the Prime Minister must either—

(a) reach an agreement before exit day between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU, or

(b) request the European Council for an extension of negotiation under Article 50(3) of the Treaty on European Union, or

(c) rescind the notice of intention under Article 50(2) of the Treaty on European Union to withdraw from the EU given in accordance with the European Union (Notice of Withdrawal) Act 2017 and request the European Council to accept that rescission.’

This New Clause would ensure that the Government assesses the impact of either an agreement or no deal on the UK economy and regions before a meaningful vote, and that if Parliament does not agree to the agreement or to no deal, then the Government must request a revocation or extension of Article 50.

New clause 12—Environmental protection after EU exit—

“(1) Before any exit day, the Secretary of State must publish a report detailing all EU environmental protections, powers and functions.

(2) The report pursuant to subsection (1) shall specify—

(a) all environmental legal protections which derive from EU law;

(b) the powers and functions relating to environmental protection or improvement exercised by EU institutions;

(c) the empowering provisions in EU law relating to those functions; and

(d) any loss of environmental protection, or the monitoring and enforcement of environmental protections, which may arise as a result of the UK’s exit from the EU.

(3) Before any exit day the Secretary of State must publish proposals for primary legislation (the “Draft Environmental Protection Bill”).

(4) The Draft Environmental Protection Bill must include provisions which would—

(a) ensure that the level of environmental protection provided by EU law on the day this Act receives Royal Assent is maintained or enhanced;

(b) make provision to remedy any loss of environmental protection, or the monitoring and enforcement of environmental protections, established in the report pursuant to subsection (1);

(c) create a statutory corporation (to be called “the Environmental Protection Agency”) with operational independence from Ministers of the Crown to monitor environmental targets previously set by EU law relating to environmental protection and other such environmental targets that may be set by Ministers of the Crown and international treaties to which the United Kingdom is party;

(d) require the statutory corporation in (4)(c) to report to Parliament every year on progress in meeting those targets and to make recommendations for remedial action where appropriate;

(e) allow the statutory corporation in (4)(c) to publish additional reports identifying action or omissions on the part of Ministers of the Crown that is likely to result in targets not being met; and

(f) extend to the whole of the United Kingdom.

(5) The Secretary of State must publish annual reports to Parliament on how environmental protections and the monitoring and enforcement of environmental protections have been affected by the United Kingdom’s exit from the EU.

(6) Before publishing a report pursuant to subsection (5) the Secretary of State must hold a public consultation on the effect of leaving the EU on environmental protection.

(7) The Secretary of State must publish and lay before each House of Parliament the first report pursuant to subsection (5) no later 29 March 2020 and each subsequent report must be published no later than the period of one year after the publication of the previous report.”

This new clause would require the Secretary of State to produce a report on the loss of environmental protection as a result of the UK’s exit from the EU, and to prepare an Environmental Protection Bill to make up for any loss of environmental protections, and the monitoring and enforcement of environmental protections. It would also require the Secretary of State to produce annual reports which make an assessment of the impact of the UK’s withdrawal from the EU on UK environmental protection.

New clause 14—Maintaining individual rights and protections—

“(1) When making any agreement under subsection (2), the Secretary of State shall take steps to ensure that UK citizens enjoy standards of rights and protections equivalent to those enjoyed by citizens of the EU under EU law.

(2) This section applies to—

(a) any agreement between the United Kingdom and the EU which prepares for, or implements, the UK’s withdrawal from the EU;

(b) any international trade agreement—

(i) between the UK and the EU, or

(ii) between the UK and another signatory which seeks to replicate in full or in part the provisions of an international trade agreement between the EU and the other signatory.

(3) In relation to any agreement under subsection (2), the Secretary of State will maintain the highest standards of transparency.”

This new clause creates a duty for the Government to ensure that individual rights and protections are maintained to a level equivalent to (although not necessarily the same as) those in the EU when making agreements with the EU or international trade agreements.

New clause 15—Non-regression of equality law—

“(1) Any EU withdrawal related legislation must be accompanied by a statement made by a Minister of the Crown certifying that in the Minister‘s opinion the legislation does not remove or reduce protection under or by virtue of the Equality Acts 2006 and 2010.

(2) In subsection (1) “EU withdrawal related legislation” means—

(a) any statutory instrument under this Act;

(b) any statutory instrument made by a Minister of the Crown wholly or partly in connection with the United Kingdom’s withdrawal from the EU; and

(c) any Bill presented to Parliament by a Minister of the Crown which is wholly or partly connected to the United Kingdom’s withdrawal from the EU.”

This new clause would ensure that legislation in connection with withdrawal from the EU does not reduce protections provided by equality law.

New clause 17—Effect of losing access to EU single market and customs union—

“(1) The Prime Minister must publish and lay before both Houses of Parliament an assessment of the impact on the economy of the United Kingdom, and on each nation, province or region of the United Kingdom, of any unratified agreement (“the Agreement”) between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU.

(2) The assessment in subsection (1) must so far as practicable analyse the expected difference in outcomes between the Agreement and continued participation in the EU single market and customs union.

(3) The assessment in subsection (1) must be prepared by the Treasury and must include separate analyses from the National Audit Office, the Office of Budget Responsibility, the Government Actuary’s Department, and the finance directorates of each of the devolved Administrations of the methodology and conclusions of the Treasury assessment.

(4) A statute of the kind mentioned in section 9 (approving the final terms of withdrawal of the United Kingdom from the European Union) may not come into effect until the Prime Minister’s assessment under subsection (1) has been—

(a) debated by each House of Parliament, and

(b) approved by resolution of the House of Commons.”

This purpose of this New Clause is to ensure that the alternative of remaining in the EU single market and customs union is formally considered by Parliament on the basis of an independently validated economic assessment before any statute approving the final terms of withdrawal takes effect.

New clause 18—Consultation on environmental governance and principles—

“(1) Within one month of Royal Assent, the Secretary of State must consult on and bring forward proposals to—

(a) provide that all powers and functions relating to the environment or environmental protection that were exercisable by EU entities or other public authorities anywhere in the United Kingdom before exit day which do not cease to have effect as a result of the withdrawal agreement are fully carried out.

(b) introduce primary legislation to establish a new independent environmental regulator with the purpose of, responsibility for, and appropriate powers to oversee the implementation of, compliance with and enforcement of environmental law and principles by relevant public authorities.

(c) incorporate EU environmental principles in primary legislation as a basis for relevant decision-making by UK public bodies and public authorities.

(d) establish a process for the publication of a national environmental policy statement or statements describing how the environmental principles will be interpreted and applied.

(2) EU Environmental principles include but are not limited to—

(a) the precautionary principle;

(b) the principle that preventive action should be taken to avert environmental damage;

(c) the principle that environmental damage should as a priority be rectified at source;

(d) the polluter pays principle;

(e) the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities, in particular with a view to promoting sustainable development;

(3) In carrying out a consultation under this section, the Government must—

(a) consult with the devolved authorities;

(b) be open to responses for at least two months; and

(c) consider the resources and legal powers that the proposed regulator under (1)(b) will need in order to properly carry out its functions.”

This new clause enshrines the Government’s stated intentions in respect of the environmental principles and the establishment of a new independent environmental regulator. It sets out the minimum standards for consultation on these matters.

New clause 20—Citizens’ Jury on Brexit Negotiations—

“(1) A citizens’ jury shall be established to enable UK citizens to be consulted on the progress of negotiations between the UK and the EU on the withdrawal of the UK from the EU, and the approach outlined in UK Government White Papers.

(2) The citizens’ jury shall in total be composed of exactly 1501 persons.

(3) Members of the citizens’ jury shall be randomly selected by means of eligibility from UK citizens on the current electoral register as registered on the date of this Act receiving royal assent, with allocation across the 9 UK Government Regions, Scotland, Wales and Northern Ireland weighted by population, and a stratification plan, with the aim of securing a group of people who are broadly representative demographically of the UK electorate across characteristics including whether they voted Leave or Remain.

(4) The jury will be broken down into individual sittings for each of the 9 UK Government Regions in England, as well as Scotland, Wales and Northern Ireland.

(5) The sittings will be for no more than 72 hours at a time, facilitated by independent facilitators, and if required, by electing fore-people from within their number.

(6) Membership of the jury will be subject to the same regulations and exceptions as a regular jury, but membership can be declined without penalty.

(7) The citizens’ jury will be able to require Ministerial and official representatives of the UK Government and the Devolved Administrations to give testimony to them to inform their work, and to have the power to invite other witnesses to give evidence as required.

(8) The citizens’ jury shall publish reports setting out their conclusions on the negotiations and UK Government White Papers.

(9) The first report from the citizens’ jury shall be published within two months of this Act receiving Royal Assent, and subsequent reports shall be published at intervals of no more than two months.

(10) Costs incurred by the citizens’ jury shall be met by the Exchequer.”

New clause 21—Environmental protection and improvement: continuation of powers and functions—

“(1) The Secretary of State must establish and maintain a publicly accessible register of EU environmental powers and functions.

(2) The register produced pursuant to subsection (1) shall specify—

(a) the specific powers and functions relating to environmental protection or improvement exercised by EU institutions;

(b) the EU institution previously responsible for exercising those powers and functions; and

(c) the empowering provision in EU law relating to those powers and functions.

(3) The register produced pursuant to subsection (1) shall include the following functions—

(a) monitoring and measuring compliance with legal requirements;

(b) reviewing and reporting on compliance with legal requirements;

(c) enforcement of legal requirements;

(d) setting standards or targets;

(e) co-ordinating action; and

(f) publicising information including regarding compliance with environmental standards.

(4) Within one month of Royal Assent, the Secretary of State must—

(a) publish and lay before Parliament a statement identifying those powers and functions identified in the public register established under subsection (1) that will continue to be exercised by EU institutions or, alternatively, the existing or proposed new public authorities to which these powers and functions will be transferred; and

(b) make Regulations containing provisions to ensure that all relevant powers and functions relating to environmental protection or improvement exercisable by EU institutions anywhere in the United Kingdom before exit day continue on and after exit day.”

This new clause would ensure oversight of the transfer of functions from EU institutions to domestic institutions, by requiring the Government to establish a publicly accessible register of environmental governance functions and powers exercised by EU institutions, and to make regulations that ensure that all relevant environmental powers and functions are continued.

New clause 22—Dealing with deficiencies arising from withdrawal – further provisions—

“(1) This section applies where there is a deficiency in retained EU law on and after exit day in respect of which regulations have not been made under section 7.

(2) A deficiency includes, but is not limited to, retained EU law which—

(a) contains anything which has no practical application in relation to the United Kingdom or any part of it or is otherwise redundant or substantially redundant;

(b) confers functions on, or in relation to, EU entities which no longer have functions in that respect under EU law in relation to the United Kingdom or any part of it;

(c) makes provision for, or in connection with, reciprocal arrangements between—

(i) the United Kingdom or any part of it or a public authority in the United Kingdom, and

(ii) the EU, an EU entity, a member State or a public authority in a member State,

which no longer exist or are no longer appropriate.

(d) makes provision for, or in connection with, other arrangements which—

(i) involve the EU, an EU entity, a member State or a public authority in a member State, or

(ii) are otherwise dependent upon the United Kingdom’s membership of the EU,

and which no longer exist or are no longer appropriate

(e) makes provision for, or in connection with, any reciprocal or other arrangements not falling within paragraph (c) or (d) which no longer exist, or are no longer appropriate, as a result of the United Kingdom ceasing to be a party to any of the EU Treaties,

(f) does not contain any functions or restrictions which—

(i) were in an EU directive and in force immediately before exit day (including any power to make EU tertiary legislation), and

(ii) it is appropriate to retain, or

(g) contains EU references which are no longer appropriate.

(3) A deficiency within the meaning of subsection (1) includes any failure or other deficiency arising from the United Kingdom’s withdrawal from the EU together with the operation of any provision, or the interaction between any provisions, made by or under this Act, but does not include any modification of EU law which is adopted or notified, comes into force or applies only on or after exit day.

(4) Where this section applies, the retained EU law in respect of which the deficiency arises is to be interpreted in accordance with subsections (5) to (9).

(5) The retained EU law does not allow, prevent, require or otherwise apply to acts or omissions outside the United Kingdom.

(6) An EU reference is not to be treated, by reason of the UK having ceased to be a member State, as preventing or restricting the application of retained EU law within the United Kingdom or to persons or things associated with the United Kingdom.

(7) Functions conferred on the EU or an EU entity are to be treated as functions of the Secretary of State.

(8) Any provision which requires or would, apart from subsection (7), require a UK body to—

(a) consult, notify, co-operate with, or perform any other act in relation to an EU body, or

(b) take account of an EU interest,

is to be treated as empowering the UK body to do so in such manner and to such extent as it considers appropriate.

(9) In subsection (8)—

“a UK body” means the United Kingdom or a public authority in the United Kingdom;

“an EU body” means the EU, an EU entity (other than the European Court), a member State or a public authority in a member State;

“an EU interest” means an interest of an EU body or any other interest principally arising in or connected with the EU (including that of consistency between the United Kingdom and the EU);

“requires” includes reference to a pre-condition to the exercise of any power, right or function;

(10) This section ceases to have effect after the end of the period of two years beginning with exit day.”

This new clause provides a scheme for interpretation as a backstop where the transposition necessary to avoid deficiencies has not been effected by regulations made under Clause 7.

Amendment 2, in clause 7, page 5, line 6, leave out subsections (1) to (6) and insert—

“(1) A Minister of the Crown may by regulations make such provision as the Minister considers necessary to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law,

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

(2) Deficiencies in retained EU law are where the Minister considers that retained EU law—

(a) contains anything which has no practical application in relation to the United Kingdom or any part of it or is otherwise redundant or substantially redundant,

(b) confers functions on, or in relation to, EU entities which no longer have functions in that respect under EU law in relation to the United Kingdom or any part of it,

(c) makes provision for, or in connection with, reciprocal arrangements between—

(i) the United Kingdom or any part of it or a public authority in the United Kingdom, and

(ii) the EU, an EU entity, a member State or a public authority in a member State, which no longer exist or are no longer appropriate,

(d) makes provision for, or in connection with, other arrangements which—

(i) involve the EU, an EU entity, a member State or a public authority in a member State, or

(ii) are otherwise dependent upon the United Kingdom’s membership of the EU, and which no longer exist or are no longer appropriate,

(e) makes provision for, or in connection with, any reciprocal or other arrangements not falling within paragraph (c) or (d) which no longer exist, or are no longer appropriate, as a result of the United Kingdom ceasing to be a party to any of the EU Treaties,

(f) does not contain any functions or restrictions which—

(i) were in an EU directive and in force immediately before exit day (including any power to make EU tertiary legislation), and

(ii) it is appropriate to retain, or

(g) contains EU references which are no longer appropriate.

(3) But retained EU law is not deficient merely because it does not contain any modification of EU law which is adopted or notified, comes into force or only applies on or after exit day.

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

(5) Regulations under this section may provide for—

(a) functions of EU entities or public authorities in member States (including making an instrument of a legislative character or providing funding) to be exercisable instead by a public authority (whether or not newly established or established for the purpose) in the United Kingdom,

(b) the establishment of public authorities in the United Kingdom to carry out functions provided for by regulations under this section.

(6) Regulations to which subsection (5) apply must ensure that the functions of such EU entities or public authorities are exercised with equivalent scope, purpose and effect by public authorities in the United Kingdom.

(7) But regulations under this section may not—

(a) impose or increase taxation,

(b) make retrospective provision,

(c) create a relevant criminal offence,

(d) be made to implement the withdrawal agreement,

(e) amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it,

(f) amend or repeal the Northern Ireland Act 1998 (unless the regulations are made by virtue of paragraph 13(b) of Schedule 7 to this Act or are amending or repealing paragraph 38 of Schedule 3 to the Northern Ireland Act 1998 or any provision of that Act which modifies another enactment),

(g) contain any provision the effect of which is that, in comparison with the position immediately before the exit date—

(i) any right conferred on a person by retained EU law is either removed or made less favourable,

(ii) any standard laid by retained EU law is lowered, or

(iii) any remedy, procedure or method of enforcement, in relation to any rights or standards conferred by retained EU law, is made less effective, or

(h) amend, repeal or revoke the Equality Act 2010 or any subordinate legislation made under that Act.”

This amendment restricts the Clause 7 powers so as to ensure they are only used as far is as necessary for the purposes of the Bill, that they do not abolish enforcement functions and that they do not reduce rights or protections.

Amendment 9, page 6, line 16, at end insert—

“(da) amend, repeal or revoke any retained EU law which implements a provision listed in Schedule [Exceptions for Directives etc.].”

This amendment, which is linked to NS1, would except EU Directives relating to workers’ rights from the power to make regulations to remedy deficiencies in retained EU law.

Amendment 56, page 6, line 23, at end insert—

“(6A) Within three months of this Act receiving Royal Assent, and every three months thereafter, a report must be laid before each House of Parliament listing—

(a) all deficiencies which Ministers of the Crown have identified would arise in retained EU law after exit day but which they do not intend to prevent, remedy or mitigate in advance using the powers under subsection (1);

(b) the reasons for each decision not to prevent, remedy or mitigate such deficiencies, and

(c) an assessment of the consequences of that decision.”

This amendment (linked with Amendment 55 provides for Parliamentary scrutiny of any decision not to use clause 7 powers to save retained EU law from being unable to operate effectively.

Amendment 59, in clause 9, page 7, line 16, at end insert—

“(5) No regulations may be made under this section until the Secretary of State has signed an agreement with the European Union guaranteeing that the United Kingdom will remain a permanent member of the EU single market and customs union.”

This amendment would mean the UK would confirm its continued membership of the single market and customs union before Ministers of the Crown carry out any actions under Clause 9 of the Bill.

Amendment 10, in clause 14, page 10, line 40, leave out from “means” to the end of line 41 and insert

“the time specified by an Act of Parliament approving the final terms of withdrawal of the United Kingdom from the EU;”.

This amendment would require exit day to be specified in a separate bill on the terms of withdrawal.

Amendment 39, page 11, line 37, at end insert

“and the arrangements for a status quo transitional period which encompasses—

(a) a “bridging period” to allow new agreements to be reached satisfactorily between the United Kingdom and the European Union lasting as long as necessary for a full trade agreement to be ratified, and

(b) an “adaptation period” to allow the phasing in of new requirements over time to provide for the implementation of changes to new agreements in an orderly and efficient manner.”

This amendment ensures that the meaning of “withdrawal agreement” is also taken to include a detailed transitional period with two distinct aspects, firstly allowing for a “bridging period” during which new agreements are concluded and secondly allowing for an “adaptation period” to give business and other organisations a period to adjust to those new arrangements.

Amendment 1, page 11, line 40, at end insert—

“(2A) Subsection (2B) applies if any “exit day” appointed in this Act is not in accordance with any transitional arrangements agreed under Article 50 of the Treaty of the European Union.

(2B) A Minister of the Crown may by regulations—

(a) amend the definition of “exit day” in the relevant sections to ensure that the day and time specified are in accordance with any transitional arrangements agreed under Article 50 of the Treaty of the European Union, and

(b) amend subsection (2) in consequence of any such amendment.

(2C) Regulations under subsection (2B) are subject to the affirmative procedure.”

This amendment ensures that the Bill can facilitate transitional arrangements within the single market and customs union.

New schedule 1—Exceptions for directives etc.—

[Matthew Pennycook]

I rise to speak to new clause 1 and amendments 2 and 1, which stand in my name and those of my right hon. and hon. Friends. As you are aware, Mr Speaker, this remaining group contains a significant number of important issues, and while I want to spend time talking to each of our three amendments, I am conscious that time is limited, so I will endeavour to keep my remarks as brief as possible.

As my hon. Friend the Member for Sheffield Central (Paul Blomfield) reminded the House yesterday, as far back as last March the Opposition set out six ways in which the Bill required improvement. The first was that it be drafted in such a way as to enable transitional arrangements after 29 March 2019 on the same basic terms as now—including being in a customs union with the EU and within the single market. The second was that the sweeping delegated powers in the Bill be circumscribed. The third was that it needed to contain clear and robust protection and enforcement mechanisms for all EU-derived rights, entitlements, protections and standards. Sadly, despite some small steps in the right direction, the Government have largely failed to respond in any meaningful way to the concerns we raised in relation to these three areas. The purpose of new clause 1 and amendments 2 and 1 is to press the Government once again to do something about each of them.

I turn first to new clause 1, the purpose of which is to ensure that retained EU law enjoys a form of enhanced protection from subordinate legislation contained in other Acts of Parliament. This is a highly technical matter but a crucial one for the rights and protections our constituents enjoy. Mr Speaker, you were not in the Chamber at the time, but hon. Members who were present will recall that the House debated clauses 2, 3 and 4 in great detail on day two of Committee, and I certainly do not intend to cover the same ground again today. As we heard again yesterday, however, there are very real problems that flow from the ambiguous and uncertain status of retained EU law—a problem to which we believe new clause 13, tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve), provides a pragmatic solution, or at the very least a sensible starting point for a conversation about how the status of this new category of law could be more clearly defined.

Leaving to one side the issues relating to the status of retained EU law—issues that I have no doubt the other place will return to at some length—there is another, related concern, and that is the vulnerability of this new category of law to subordinate legislation and what that means in practical terms for the rights, entitlements, protections and standards our constituents currently enjoy. I want to be very clear as to the argument I am making at this point, because when I first did so on day two of Committee, the debate was prone to veer off on to other related but distinct issues.

The concern I am highlighting does not relate to the issue of how Parliament is to scrutinise and, where necessary, approve the hundreds of statutory instruments that will flow from clause 7, as well as clauses 8, 9 and 17. We welcomed the Government’s acceptance of the amendments tabled by the hon. Member for Broxbourne (Mr Walker) and other members of the Procedure Committee, although we still believe that they do not go far enough, particularly in relation to the new sifting committee’s inability to request that Ministers revoke and remake specific statutory instruments.

Nor does the argument that I am advancing concern how the powers contained in this Bill might be used to amend, modify or repeal retained EU law. The specific issue that I am highlighting, and what new clause 1 seeks to address, is our serious concern that the Bill as drafted leaves retained EU law vulnerable to amendment, modification or repeal by subordinate legislation contained in numerous other Acts of Parliament.

[Melanie Onn (Great Grimsby) (Lab)]

Is it not the case that workers’ rights have no privileged status under the Bill? Once the Bill becomes an Act, those rights can be picked off by secondary legislation. If the Government wish to prevent workers from receiving proper holiday pay or to cap awards for discrimination, they will be easily able to do so.

[Matthew Pennycook]

That is absolutely true. The Government would be able to do that by using subordinate legislation in other Acts of Parliament. That applies not just to workers’ rights, but to other areas of law such as the environment and consumer rights. That category of law will lose its underpinnings following our departure from the EU.

Wrenched away from the enhanced protection enjoyed as a result of our EU membership, retained EU law—and we should bear in mind that that category of law might be with us for decades—will in many cases enjoy the lowest possible legislative status, and consequently the wide range of rights and protections that flow from it will be more vulnerable than they were before. 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 areas such as employment, equality, health and safety, consumers and the environment. That is why we tabled new clause 58 in Committee. Setting out the reasons why the Government were opposed to new clause 58, the Solicitor General argued that it would

“fetter powers across the statute book that Parliament has already delegated.”

Furthermore:

“Relying only on powers set out in this Bill to amend retained EU law would be insufficient”.—[Official Report, 15 November 2017; Vol. 631, c. 418.]

In keeping with the constructive approach that we have taken towards the Bill throughout this process, we have engaged seriously with the Solicitor General’s argument, and new clause 1 is the result. Like new clause 58, it seeks to give retained EU law a level of enhanced protection, thus avoiding a situation in which laws falling within the new category might enjoy the lowest possible legislative status. It also accepts the defence put forward by the Solicitor General, and provides a mechanism whereby a Minister may use regulations provided for in other Acts of Parliament to amend, repeal or modify retained EU law, but only in cases in which it is necessary to maintain or enhance rights and protections, and only after consultation. In short, it concedes that there are many instances in which the use of subordinate legislation contained in other Acts of Parliament might be necessary, but seeks to reconcile its use with a presumption of enhanced protection.

Since the referendum, Ministers have repeatedly stated that the Government do not wish to see any rights and protections diminished as a result of our departure from the EU. That is also what the public expect, but it requires a level of protection that the Bill as it stands does not provide. We hope that the Government will engage seriously with the new clause and accept it, but we intend to press it to a vote if they do not.

[Chris Stephens (Glasgow South West) (SNP)]

Is it not important for the public to be reassured about workers’ rights, given reports in the media of Cabinet discussions about scrapping the working time directive?

[Matthew Pennycook]

I think most of our constituents assume that the guarantees that they currently enjoy will continue. They will not know that many of these rights flow from and are underpinned by EU law, but they would expect them to be transposed in a way that would provide the same level of protection rather than the lowest possible legislative status. This is an issue to which we shall have to return, and one that the other place will no doubt tackle.

Amendment 2 seeks to further circumscribe the correcting powers contained in clause 7. Throughout this process, we have been at pains to argue that, to the extent that relatively wide delegated powers in the Bill are necessary, they should not be granted casually, and that when they are granted they should be limited whenever that is possible and practical. It is clear from their tabling of amendments 14 and 15, and consequential amendments, that the Government accept that there are shortcomings in the drafting of clause 7. We welcome the fact that the deficiencies identified in clause 7(2) will now form an exhaustive rather than an illustrative list—with the caveat, I should add, that the further deficiencies can be added at a later date. In effect, the list as drafted will be exhaustive unless Ministers subsequently decide that it is not. That is not perfect, but it does represent some progress.

Nevertheless, even with the incorporation of Government amendments 14 and 15, the correcting powers provided for which clause 7 provides are still too potent and too widely drawn. Suggestions on day six of the Committee stage that the clause ought to stipulate that the correcting power should be used only when necessary have been ignored, as have concerns that the Bill as drafted does not guarantee that the powers and functions of entities such as the European Commission and other EU agencies will continue to operate with equivalent scope, purpose and effect after exit day. Concerns that the Bill as drafted could be used for a purpose other than that which was intended— specifically, that it has the potential to diminish rights and protections—have likewise been ignored.

On day six, the Government had the chance to justify the drafting of the clause in detail and to address each of those concerns, but they did not do so adequately. They were also given an enormous menu of options, in amendments tabled by Back Benchers in all parties, whereby the powers in the clause—and, indeed, similar powers elsewhere in the Bill—might be constrained. Amendments 14 and 15 represent the totality of their response. As I have said, they are a step in the right direction. but on their own they are not enough. That is why we tabled amendment 2, which addresses comprehensively the range of flaws contained in clause 7 so that the correcting power is reasonably and proportionately circumscribed. If the Government do not indicate that they have taken those concerns on board and are prepared to act on them, we will press the amendment to a vote.

Amendment 1 seeks to ensure that the Bill can facilitate transitional arrangements after 29 March 2019 on the same basic terms as now. The Opposition have argued for some time that we need a time-limited transitional period between our exit from the EU and the future relationship that we build with our European partners. We believe that, to provide maximum certainty and stability, that transitional period should be based on the same basic terms as now. That includes our being in a customs union with the EU and in the single market, both of which will entail the continued jurisdiction of the European Court of Justice for the period that is agreed. Our view is shared widely by businesses and trade unions, but for a long time it was considered to be anathema to the Prime Minister and senior members of her Cabinet.

[Melanie Onn]

I thank my hon. Friend for being so generous with his time. There are many cases, such as Marshalls Clay Products Ltd v. Caulfield and Gibson v. East Riding of Yorkshire Council, in which domestic courts have reached incorrect decisions on workers’ rights. If the European Court of Justice will no longer be the adjudicator after the transitional period, what will?

[Matthew Pennycook]

After the transitional period, the ECJ would not be the adjudicator. That would be dealt with as a matter of retained law. My hon. Friend has reinforced a point that I made earlier. We need a level of enhanced protection and the courts need clarity on how to interpret this new category of law, because if they do not have that clarity and certainty, they will be more vulnerable.

[Sir William Cash (Stone) (Con)]

I hope shortly to be able to make a brief speech on that very subject, dealing with the question of whether or not there should be a power for the courts to disapply Acts of Parliament in relation to the matters to which the hon. Gentleman has referred.

[Matthew Pennycook]

I am not sure that that warranted an intervention, but I await the hon. Gentleman’s contribution with bated breath.

[Geraint Davies (Swansea West) (Lab/Co-op)]

Further to the point made by my hon. Friend the Member for Great Grimsby (Melanie Onn), does my hon. Friend agree that either the institutions and agencies that currently enforce EU rights, privileges and protections should be maintained as EU agencies, or a transitional arrangement should involve agencies and institutions that will protect people’s rights in respect of, for instance, work, the environment and consumer issues?

[Matthew Pennycook]

I certainly believe that, when it is appropriate and when the country will derive benefit, we should continue to participate in EU agencies. The important point, however, is that when the functions and powers of EU agencies are transferred to either an existing or a new body, the purpose, scope and effect of the rights and protections that flow from those agencies should continue. That is one of the issues that clause 7 fails to address.

Returning to my earlier train of thought, all of this was why the Prime Minister’s Florence speech of last year was so welcome. It made it clear that Government policy was to seek, semantics about implementation versus transition aside, a time-limited period in which the UK and the EU would continue to have access to one another’s markets on current terms, and with Britain continuing to take part in existing security measures.

Crucially, the Prime Minister made it clear that this bridging arrangement would take place on the basis of

“the existing structure of EU rules and regulations.”

That quite clearly implied the acceptance of the jurisdiction of the ECJ, as confirmed by the Prime Minister in an answer to the hon. Member for North East Somerset (Mr Rees-Mogg) in the weeks following the speech, when she stated:

“that may mean that we start off with the ECJ still governing the rules we are part of”. —[Official Report, 9 October 2017; Vol. 629, c. 53.]

It is also set out in black and white in the phase 1 agreement.

[Chuka Umunna (Streatham) (Lab)]

With regard to the issue of transition or implementation, as the Government call it, does my hon. Friend agree that while it is of course necessary in particular to give time for our businesses to prepare, transition or implementation is no safe harbour if this Government are determined to pursue the extreme break from our relationship with the EU which have set out with their red lines? That is no safe harbour to jumping off a cliff; it just delays it, in fact.

[Matthew Pennycook]

I absolutely agree; and the unpicking of, or wheeling back from, some of the progress we felt had been made in the Florence speech is one of our concerns.

The Bill before us was drafted before the Florence speech, but rather than amend the Bill to reflect the evolution of Government policy outlined by the Prime Minister in that speech, the Government chose instead to fashion a legislative straitjacket for themselves in the form of enshrining “exit day” for all purposes in the Bill as 11 pm on 29 March 2019. Let us be clear: bringing forward amendments to stipulate that exit day for all purposes of the Bill had nothing to do with leaving the EU. The article 50 notification made our departure from the EU on 29 March 2019 a legal certainty, so, for the purposes of the Bill, exit day could be left in the hands of Parliament.

[Peter Grant (Glenrothes) (SNP)]

The hon. Gentleman just used the phrase “legal certainty” in referring to our departure from the EU on 29 March 2019. Does that mean that he has seen legal advice that article 50 cannot be revoked? Is the Labour Front-Bench position that it is impossible, as opposed to politically inexpedient, to consider revoking article 50?

[Matthew Pennycook]

The hon. Gentleman tempts me down an avenue that has nothing to do with the point I am making, which is that it remains unclear why the Government tabled three exit day amendments to their own Bill which have sown further confusion. We do not know why they did that—whether it was driven by Tory party management considerations or some other reason. The effect of those Government amendments would have been to end the jurisdiction of the ECJ on 29 March 2019, thereby preventing agreement on a transitional period on current terms.

The Government clearly soon realised their mistake and to save face enlisted the right hon. Member for West Dorset (Sir Oliver Letwin), who is not in his place, to table amendments to loosen the legislative straitjacket they themselves had created. But his amendments, which the Government have accepted, only provide a limited form of flexibility. Ministers may now amend the definition of exit day in clause 14 for the purposes of the Bill if the date when the treaties cease to apply to the UK is different from 29 March 2019. However, there is good reason to argue that that power might not be sufficient to facilitate transitional arrangements after 29 March 2019 on the same basic terms as now. If it is not—this might end up being the most bizarre aspect of the Bill’s curious parliamentary process—the Government will find themselves in the ludicrous position of having to amend this Bill when they bring forward the withdrawal agreement and implementation Bill later this year.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I think that is a virtual certainty in any event. On the basis of the Bill that the Government have promised the House for the end of this year, it seems to me that it will be a substitute for the arrangements under the existing European Communities Act, so I think that must be what is going to happen.

[Matthew Pennycook]

I agree, but what I would say—and why I would urge Members to support this amendment—is that it need not require the amendment of this Bill to allow the facilitation of transitional arrangements on the same terms in addition to the provisions that the right hon. and learned Gentleman is right to say will be needed in that further Act of Parliament.

We still believe that it should be Parliament, not Ministers, that decides exit day for the various purposes in the Bill. Our amendment 1 helpfully bolsters the position set out by the Prime Minister in the Florence speech by ensuring that this Bill can facilitate transitional arrangements on the same terms as now.

Given that this is, of course, Government policy, it is a wonder that the Government did not bring forward such an amendment themselves. They did not do so because they cannot agree on what the transition means. There can be no clearer evidence for that than the recent appointment of the hon. Member for Fareham (Suella Fernandes) to the Department for Exiting the European Union team, given her past form in seeking to actively undermine the policy position set out in the Florence speech by encouraging her colleagues to sign a European Research Group letter to the Prime Minister objecting to crucial aspects of it. It is ironic that those Tory MPs who voted for amendment 7 back in December are viewed by many as having betrayed the Government, while those who actively undermine stated Government policy appear to get promoted in quick succession.

Amendment 1 is simply an attempt to restore some common sense to the question of exit day for the purposes of this Bill. It would ensure that this Bill can facilitate any transitional arrangements agreed as part of the article 50 negotiations and that we avoid the ludicrous situation of potentially having to come back to amend this Bill in order to do so. It is in line with stated Government policy, and we therefore look forward to the Government not only accepting it, but welcoming it.

The Opposition have made it clear from the outset that a Bill of this kind is necessary to disentangle ourselves from the European Union’s legal structures and to ensure that we have a functioning statute book on the day we leave. But as we argued on Second Reading in September last year, this Bill is a fundamentally flawed piece of legislation. Sadly, despite the small number of welcome concessions, and the implications for the legislation of the defeat the Government suffered at the hands of amendment 7 and the right hon. and learned Member for Beaconsfield (Mr Grieve) on 12 December, it remains a fundamentally flawed Bill. Those flaws still need to be addressed either by this House today or in the other place, and on that basis I urge all hon. Members to support new clause 1 and amendments 2 and 1.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I am glad to see my right hon. Friend the Member for New Forest West (Sir Desmond Swayne) in his place behind me, where I always welcome him. When I arrived, I inquired whether he had had a cup of coffee before today’s long proceedings, and I undertake to try to have no soporific effects on those Members who have survived to the eighth day of this Committee and Report stage.

I do not intend to follow entirely the hon. Member for Greenwich and Woolwich (Matthew Pennycook), although I listened to many of the points he made with considerable sympathy; I am quite sure that clause 7 will require more work when it gets to another place, and I also have considerable sympathy with what he said about the confusion now surrounding exit day and the ability to proceed to what I am sure is the obvious transition arrangement we are going to have to have for quite a long time, which will be on precisely the same terms that we have at the moment, so far as access to the market is concerned.

I will turn my attention, however, to the Bill’s impact on the economy, following from new clause 17, which is in this selection and strikes me as excellent, and several more of the same kind. In our eight days, the House has not had anything like adequate opportunities to consider this absolutely vital policy implication of what we are embarked upon as we seek to leave the EU. I do not share the view that the Bill needs to be treated in this House or the other place as a mere technical or necessary Bill of legal transition; we have the opportunity to put into the Bill some of the essential aspects of our future economic relationship and to allow the House to express a view and put into statute things that we wish, and instruct in line with our constitution, the Government of the day to follow.

There is undoubtedly going to be some economic cost to this country, regardless of the means by which we eventually leave the European Union. If we have a complete break with no deal, the implications could be very serious indeed. I am one of those who think it rather foolish to try to put precise figures on this. The Scottish National party earlier tried to make precise estimates of what would happen because a think-tank had put out a range of consequences, depending on which options were followed. It was rather reminiscent of the arguments put forward by the then Chancellor of the Exchequer when he tried to help the remain side during the referendum campaign. They were really rather fanciful figures.

Oral Answers to Questions

Matthew Pennycook Excerpts

Thursday 14th December 2017 Commons Chamber

[The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Steve Baker)]

As a former fast catamaran sailor in the seas in the area that my hon. Friend refers to, I am happy to say that the Government’s maritime and ports sectoral report sets out a description of the sector, the current EU regulatory regime, existing frameworks for how trade is facilitated between countries in the sector, and sector views. This report has been available to Members of both Houses to read in a secure reading room. The UK will remain a great maritime nation.

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

The House will be aware that yesterday the European Parliament had a vote on a resolution to endorse the agreement reached last week. Can the Secretary of State tell us why, unlike Labour Members of the European Parliament, Conservative MEPs were whipped to abstain and not to vote in support of that joint report?

[Mr David Davis]

That is very interesting, but it nowhere near compares with the 18 members of the Labour party who voted against.

European Union (Withdrawal) Bill

Matthew Pennycook Excerpts

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

[Sir Oliver Letwin]

I have steadfastly resisted for 21 years engaging in meaningless partisan debate, and I am not going to abandon a career’s worth of effort in that direction to answer that point. Animal sentience is built into English law in various ways already, but the new Bill will vastly strengthen the position compared with what it is today under European law. That is a huge advance for our nation, one that many people on both sides of the House can be happy with. As my hon. Friend the Member for Richmond Park was pointing out, there is an exact parallel with what we and the Government are seeking to do in relation to environmental regulation. I really believe that if we could lay aside both the inevitable divisions about Brexit itself and the inevitable play of party politics, and simply focus on what is going to do the best thing for our environment, we would see that the programme we have before us is a huge advance and one we should gratefully welcome.

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

It is a pleasure to serve under your chairmanship, Mrs Laing, and to follow the right hon. Member for West Dorset (Sir Oliver Letwin). I rise to speak to new clauses 63 and 1, amendments 32 and 25, which stand in my name and those of my right hon. and hon. Friends, and amendments 342, 333, 350, 334 and 33 to 41.

For the purposes of clarity, I intend to break my remarks down into three parts. I will first speak to those new clauses and amendments that relate to the purpose, scope and limits of clause 7. I will then turn to those that relate specifically to the clause 7 power to transfer functions from EU entities and agencies to UK competent authorities. I will finish by turning to new clauses and amendments that relate to the Government’s proposals about how Parliament will scrutinise and, where necessary, approve secondary legislation made under the powers provided for by not only clause 7, but clauses 8, 9 and 17.

I turn first to the purpose, scope and limits of clause 7. As I said when winding up for the Opposition in the debate on Second Reading, the delegated powers conferred on Ministers under clause 7, and clauses 8, 9 and 17, are extraordinary in their constitutional potency and scope. They are, to put it plainly, objectionable and their flaws must be addressed before Third Reading. As such, when it comes to the correcting powers provided for by clause 7, what we are debating is not whether there is a need to place limits on these powers—that, I hope, is beyond serious dispute. What is at issue today, and what I intend to cover in the first part of my remarks, is what limits should be placed on these powers and why.

Just as the Opposition accept that the Brexit process requires legislation to disentangle the UK from the European Union’s legal structures and to ensure that we have a functioning statute book on the day we leave, we also understand, in light of the legislative reality that must be confronted between now and exit day, that no Government could carry out this task by primary legislation alone. We therefore accept that relatively wide delegated powers to amend existing EU law and to legislate for new arrangements following Brexit where necessary are, and will be, an inevitable feature of the Bill. Given how much EU and EU-related law has been implemented through primary legislation, we also recognise that the Bill will have to contain Henry VIII clauses. We appreciate that there is a difficult balance to be struck between the urgency required to provide legal continuity and certainty after exit day and the equally important need for safeguards to ensure we maintain the constitutional balance of powers between the legislature and the Executive.

We also believe, however, that to the extent that relatively wide delegated powers are necessary, they should not be granted casually and where they are granted they should be limited, wherever possible, and practical. That is particularly important given how remarkable the correcting powers provided under clause 7 are in their potency and scope. On their potency, it is important to recognise that the Henry VIII powers contained in clause 7 are of the most expansive type. As has already been noted by my hon. Friend the Member for Nottingham East (Mr Leslie), clause 7(4) makes it clear that the power granted by subsection (1) can be used to enact regulations that make any provision that could be made by an Act of Parliament, and clauses 8(2) and 9(2) make equivalent provision in respect of the powers conferred by both those clauses.

These are extraordinary powers, for if it is possible for regulations made under clause 7(1) to make any provision that could be made by an Act of Parliament, that must extend logically to amending or repealing any kind of law, including provisions in other Acts, in the context of wide-ranging purpose of the clause: to remedy any deficiencies that arise in retained EU law. Furthermore, paragraph 1(2)(8) of schedule 7 explicitly confirms that the powers in clause 7 can be used to create powers “to legislate”. As the powers can be used to do anything that could be done by Act of Parliament by means of subsection (4), the Bill itself can be used to create further Henry VIII powers. As such, if this Bill is passed unamended, we face the prospect of Ministers—perhaps not this Minister or Ministers in this Government—having the ability to use the Henry VIII powers in this Bill to confer further such powers upon themselves or other UK institutions; we are talking about delegated legislation piled on top of delegated legislation. That is an outcome that no Member of this House should regard as an acceptable prospect, but it is possible using the powers conferred under clause 7, as drafted.

--- Later in debate ---

[Chris Bryant]

We might think that the most extreme legislation that would be on the statute book allowed for emergency powers. The Civil Contingencies Act 2004 makes it absolutely clear that, when Henry VIII powers are to be used, the Minister must explain why they are important, why they are necessary and that they have met an appropriate level of proper jurisdiction beforehand, but none of that is available in the Bill. Is it not therefore important that we have measures such as amendment 17, which adds to the clause?

[Matthew Pennycook]

Absolutely. My hon. Friend spoke powerfully about this matter on Second Reading, and he is right in saying that the scope of the powers in this Bill is not narrow, as some Conservative Members have argued; these powers are extraordinarily wide and unprecedented in the post-war period. I struggle to find other examples of Acts that have drawn their powers this wide.

Secondly, and perhaps more concerning, clause 7(1) will allow Ministers to make such regulations as they consider appropriate for the purpose of preventing, remedying or mitigating

“(a) any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law”

arising from exit. What is meant by the entirely subjective phrase “operate effectively” is left entirely open, a point rightly highlighted by amendment 15, which stands in the name of the right hon. and learned Member for Beaconsfield (Mr Grieve) and others. What is meant by deficiencies is more precisely defined, but clause 7(2) still only provides a non-exhaustive set of examples of what is considered to fall within this category. As such, it leaves Ministers with considerable latitude in determining when retained EU law contains a deficiency. The explanatory notes to the Bill seek to reassure us that the power could not be used by a Minister just because he or she considered the law in question to be flawed prior to exit. Today’s Minister will no doubt repeat that it is not the Government’s intention to use this Bill to make major policy changes or to establish new frameworks in the UK beyond those which are necessary to ensure we have a functioning statute book on exit day. But in the absence of a definitive criteria of what constitutes a deficiency, or, indeed, restrictions on how deficiencies might be addressed in the Bill, there is still scope for the Executive to enact substantive changes to policies in areas that were previously underpinned by EU law, whether by lowering permissible air quality levels or modifying crucial employment protections.

[Stephen Doughty]

I thank my hon. Friend for his excellent forensic examination of what is at fault in the Bill. Does he agree that there is deep suspicion and mistrust because we have heard speeches from Members who might seek to form the Government at some point—particularly the hon. Member for North East Somerset (Mr Rees-Mogg) and others—who have made it clear that they want a deregulated race-to-the-bottom economy and society? It is all very well to have assurances from the current team of Ministers, but what if others were in their place?

[Matthew Pennycook]

That is precisely our concern. We discussed that at length on day 2 in Committee, when we were talking about the need for enhanced protection for retained EU law because it will be stripped away from its underpinnings in EU law post-exit.

A further concern about the language in clause 7(1) is that, given how wide clauses 2, 3 and 4 are in respect of what will come under the umbrella of retained EU law, Acts of Parliament that are linked to EU law, such as the Equality Act 2010, will be susceptible to change by statutory instrument under the clause. That would be an entirely unacceptable situation. There are many different ways in which the constitutional potency and scope of the correcting powers provided under clause 7 can be circumscribed, and we support many of the amendments tabled to the clause that share that same basic underlying objective.

Amendments 32 and 25 are the means by which my right hon. and hon. Friends and I have attempted to limit those correcting powers. Amendment 32 would diminish the potency of the delegated powers in the clause by removing the ability to modify or amend the Act itself. I listened to what the Minister said about the schedules and how they dictate things, but I would argue that there seems to be a difference—if Members wish to direct their attention to it, this is on pages 39 and 43 of the Bill—between the process that applies to clause 7 and that which applies to clause 9, with respect to whether a vote in the House would be required for Ministers to amend the Act itself. Perhaps the Minister will elaborate further on that in his response.

Amendment 25 would reduce the scope of the powers by constraining their capacity to reduce rights and protections, while amendments 350 and 334 would buttress amendment 25 by putting specific limits on the powers in question by requiring Ministers to pay full regard to the animal welfare standards enshrined in article 13 of the treaty on the functioning of the European Union and to guarantee that the air quality standards and protections that are currently underpinned by EU law are maintained in practice following our departure.

Given how widely drawn the powers in clause 7 are, coupled with their potency and scope and the inherent subjectivity of the language in subsection (1) in key respects, ministerial assurances and promises to go away and have a cosy chat, as we have had on other days, are not good enough in this instance. The powers entail a significant transfer of legislative competence from the legislature to the Executive and open up the real possibility of substantive changes being made in policy areas that previously were underpinned by EU law. Restrictions on the powers must be placed in the Bill, whether through amendment 32 or 25, or some other combination of amendments. I look forward to hearing from the Minister not only that the Government now accept as much but what they intend to do about it.

On the new clauses and amendments that relate specifically to the clause 7 power to transfer functions from EU entities and agencies to UK competent authorities, Ministers have been at pains to point out throughout this process that many of the corrections to retained EU law made under the correcting power in clause 7 will be mechanistic, textual or technical in nature. That will undoubtedly be the case, but many others will not be. As other Members have noted, the powers in clause 7 allow for not only the creation of new UK public authorities using the affirmative procedure but the transfer of EU regulatory functions to existing UK institutions using the negative procedure. However, in neither case does the clause 7 power as drafted ensure that retained EU law will be made operable in ways that replicate and maintain, in so far as is practical, all the existing powers and functions exercisable by EU entities. As a result, the clause does not guarantee that the powers and functions of entities such as the EU Commission or other EU agencies will continue to operate with equivalent scope, purpose and effect after exit day.

Amendment 342 would address the problem by making it clear in the Bill that regulations to which subsection (5) applies must, again in so far as is practical, ensure that the standards, rights and protections currently maintained by EU institutions, or other public authorities anywhere in the UK, continue to exist in practice after exit day and that the UK competent authorities that are overhauled or created for that purpose have the resources, expertise and independence required to carry out their task effectively. That they do so is crucial not only for legal certainty and continuity and to ensure continued confidence in UK products and services, but as a guarantor of stability and redress for citizens and civic bodies in key areas in which there is a clear risk that Brexit will leave a governance gap.

The need for such an amendment is particularly important when it comes to the environment. I take the point made by the right hon. Member for West Dorset that we discussed this matter in Committee at length on other days. Of course, it relates intimately to the environmental principles, although they are outside what is covered by clause 7. We have tabled new clause 63 to require the Government to establish new domestic governance arrangements, following consultation, for environmental standards and protections and, crucially, to ensure that the new arrangements provide robust enforcement mechanisms when environmental requirements and standards are not met.

The Government’s thinking about this policy area has clearly moved on from their early insistence that existing regulatory bodies, parliamentary scrutiny and the use of judicial review alone would be sufficient to provide oversight of Government and public body conduct. The pledge by the Secretary of State for Environment, Food and Rural Affairs to create a new environmental watchdog and to consult early in the new year on its scope, powers and functions is welcome, but as things stand we have no clear indication of the watchdog’s scope, powers and functions; no clarity on whether the Government are seeking agreement with the devolved Administrations with a view to implementing similar measures in their jurisdictions; and no sense of whether or not the watchdog will be able to levy credible sanctions or provide for effective enforcement of breaches.

[Sir Oliver Letwin]

Before the hon. Gentleman moves on, I think what he says about the devolved authorities is incorrect. As I understand it, the Secretary of State made it perfectly clear that, if possible, he would like the devolved Administrations to come along with the process and share in the institutional framework. Of course, that is not a decision he can make; it is up to the devolved Administrations.

[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.

[James Heappey (Wells) (Con)]

Before the hon. Gentleman moves on, I am interested to understand whether the purpose of new clause 63 is a UK-wide set of policies that would apply in Scotland and Wales, which would therefore remove a competency on the application of environmental law from the Scottish Government to Westminster.

[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.

[Matthew Pennycook]

I absolutely agree. The devolved Administrations, as my hon. Friend has reminded me, agree that they want to take a UK-wide approach to this issue, but it would have to be an agreement.

Let me turn now to those new clauses and amendments that relate to the Government’s proposals about how Parliament will scrutinise and, where necessary, approve secondary legislation made under the powers set out in schedule 7(6). It is clear that the vast majority of hon. Members and the Government have accepted that the House’s current procedures for scrutinising negative and affirmative instruments are not acceptable. The hundreds of SIs that will flow from clauses 7 to 9 and 17 need something different. It is encouraging that Ministers have listened and have made it very clear that they intend to accept the amendments in the name of the hon. Member for Broxbourne (Mr Walker) and other members of the Procedure Committee. We welcome those amendments and the establishment, as our new clause 1 proposes, of a parliamentary Committee to sift or triage regulations, and we support their incorporation in the Bill. Frankly, it is better than nothing, but it is the minimum of what might be expected, and we do not believe that they go far enough.

Amendments 397 and 398 propose that every SI made only via the negative procedure will be sent to the new Commons committee for consideration, with the committee determining within a 10-day window which ones would be required to be made under the affirmative procedure. That is an improvement on the arrangements proposed in this Bill as it stands, because it provides for discretion beyond the very narrow category of regulations attracting the affirmative procedure currently set out in schedule 7, and it will ensure that Ministers will not have unfettered discretion to decide whether the affirmative or negative procedure should apply in cases where an exercise of powers does not fall within one of the categories set out in the Bill.

Ministers must justify why the new committee will not be tasked with looking at SIs made under the affirmative procedure, or with examining the justification for using the SI in question to remedy a particular deficiency in EU law. Importantly, they must justify why, in urgent cases, which I know is a phrase that is undefined, Ministers can simply bypass the committee. Lots of these matters will be dealt with under Standing Orders, but it is right that we press for some clarity today. I hope that the Minister will provide further clarification on the composition of the new committee, in particular whether, as proposed in our new clause 1, the chair will be elected by the whole House and will be, and will be seen to be, independent of the Government. Ministers must further explain why they do not believe that the new committee should have the powers to recommend revisions to individual SIs.

Amendments 397 and 398—here I stand to be corrected by the hon. Member for Broxbourne or others on the Committee—make no such provision for revision. In this respect, they differ in a crucial aspect from the proposals set out in the Procedure Committee’s interim report of 6 November, which, while not providing for a formal mechanism for revising secondary legislation, did suggest a process by which a request could be made to Ministers to revoke and remake any particular SI underpinned by the scrutiny reserve. Without provision for this House to request, in certain limited cases, that a particular SI be revised, hon. Members will face a Hobson’s choice—take it or leave it with regard to regulations that may entail highly significant policy choices and have potentially serious or far-reaching implications, with “leave it” in these circumstances meaning a hole in the statute book.

Our amendments 33 to 41 make it clear that any new sifting committee that is established must be given the means not only to determine the level of parliamentary scrutiny that each SI is accorded in proportion to their significance and policy implications, but to make recommendations as to how particular SIs might be improved by revision—if necessary if only by means of the committee in question recommending that an instrument either be withdrawn and re-laid in a more acceptable form or, if a negative, be revoked and remade.

I wish to touch on one last issue: when it comes to the effective scrutiny of secondary legislation, it is crucial, as my hon. Friend the Member for Rhondda (Chris Bryant) has argued, that long-standing parliamentary conventions are adhered to. Even after the process of sifting undertaken by the new committee, SIs subject to the negative procedure can only be annulled if the Government of the day themselves allow time for the House to debate the matter and to have a vote on it. Yet, as my hon. Friend pointed out today and on Second Reading, the Government have consistently refused in recent years to honour that convention, just as they no longer honour the convention that Opposition day motions are voted on. We have a very recent example that illustrates how this Government have used delegated powers not just to avoid parliamentary scrutiny, but to legislate in open defiance of the will of the House in relation to the matter of tuition fees. The original Act in question with regard to that matter allowed any statutory instrument raising the tuition fee limit to be annulled by either House, and assurances were given by Ministers in both the previous Labour Government and the coalition Government that any such SI would be taken on the Floor of the House.

By contrast, this Government prevented any vote whatever on the matter, and then refused to accept the vote of the House against the regulations. When they tabled the regulations the day before the 2016 Christmas recess, the Opposition prayed against them on the first sitting day this year, but despite the conventions of the House, the Government dragged their feet for months until eventually conceding the point and scheduling a debate on 18 April. Then Parliament was dissolved for the election.

After the election, the Government stalled and it was left to my hon. Friend the Member for Ashton-under-Lyne (Angela Rayner) to secure parliamentary time using Standing Order No. 24. Eventually, we had to provide Opposition time on an Opposition motion to revoke the regulations, which the House agreed, only for the Government to refuse to accept the result, after telling Government Members to boycott the vote. Therefore, when Ministers say that Parliament still has a meaningful say on delegated legislation, there is a catch—and it is a Catch-22. They can refuse time for a vote within the 40 days, then say that it is too late for any vote to count once the deadline has passed.

This Bill includes powers that not only open up the very real possibility of substantive changes being made to policies in areas that were previously underpinned by EU law, but to amend primary legislation. If the Government are willing to ignore so flagrantly the conventions of this House when it comes to an issue as controversial and as important as university tuition fees, why on earth should this House assume that those conventions will be honoured when it comes to Brexit legislation?

[Stephen Doughty]

My hon. Friend has made an absolutely essential point. Fundamentally, does he agree that if this process is to be about taking back control, it must be about Parliament and the representatives of the people taking back control, not a Government, and certainly not a minority Government, taking back excessive powers?

[Matthew Pennycook]

I could not agree more with my hon. Friend. That is why strengthened scrutiny procedures for approving secondary legislation made under this Bill are so important, and it is also why long-standing conventions must be honoured, so that in the rare cases where the Committee might recommend an SI be subject to the negative procedure but the Opposition disagrees, there is a chance to bring the matter before Committee.

[John Redwood]

This debate is very important. As someone who wants this Parliament to take back control on behalf of the sovereign British people who voted in that way in the referendum, I can see that there is an irony in this debate. We hear that a number of Opposition Members are very worried that Ministers will have too much power as a result of this legislation, but by the very act of our having this debate, and in due course the votes, on how we should proceed, I think that we are demonstrating that, indeed, Parliament is taking back control. The purpose of these debates today and tomorrow and the subsequent votes will be for Parliament to set a very clear framework within which Ministers will have to operate.

We are, after all, debating how we translate a very large burden of existing European law into good United Kingdom law in order to ensure continuity and no change at the point when we exit the European Union. This is a task that unites people of all political persuasions, whether they were in favour of leave or remain, around the need for legal certainty. We all see the need to guarantee that all that good European law under which we currently live will still be there and effective after we have left.

We also agree something else: some of us do want to change some of those laws. I want to change the fishing law very substantially, because we could have a much better system for fishing in this country if we designed one for ourselves. We will probably need to amend our trade and customs laws, because as we become an advocate for and an architect of wider free trade agreements around the world, that is clearly going to necessitate changes, which we think will be positive. I think we all agree that where we want to change policy—to amend and improve—we should do so through primary legislation. As I understand it, Ministers have agreed with that. I am sure that this House is quite up to the task of guaranteeing that Ministers will indeed have to proceed in that way, so that we know that when they wish to change—amend, improve or even repeal—policy, they will need to come through the full process of asking for permission through primary legislation.

Today we are talking about the adjustments, many of which are technical, that need to be made to ensure the continuity of European law when it passes from European jurisdiction to the jurisdiction of the United Kingdom Parliament and courts. Ministers will obviously play up the fact that they think most of these matters will be very technical, such as taking out the fact that the UK is a member of the European Union when we exit and rewriting the legislation to point out that we are no longer a member of the European Union, or decreasing the number of members states by one from the current number if they are referred to in the regulation. More difficult will be the substitution of a UK-based body for a European body to ensure proper enforcement. Many of us see that as largely technical, although there may be wider issues. This Parliament is now properly debating how much scrutiny that kind of thing would require.

We have three possible models to ensure parliamentary sovereignty over any of these processes. The weakest is the negative resolution procedure, whereby Ministers will have to make a proposal for technical changes to the law, and Parliament will have to object and force a vote if it wishes to. The middle model is the affirmative resolution statutory instrument, whereby Parliament will have a debate and a vote; Ministers would make a proposal and we would have a vote. In some cases, we might even conclude that we need primary legislation, as it appears we are deciding with the issue of animal welfare. In that case, we wish not only to transfer the European law but to ensure that it is better in British law, so that will need primary legislation.

Today we are debating how to determine which of those processes are appropriate for each of the different matters that arise. A lot of items will definitely be in the technical area of rather minor changes just to ensure that things work smoothly, which is what I thought the Government were trying to capture in clause 7. We have heard from Opposition Members who think that the clause goes too far and will allow the Government to elide matters from the category of technical changes to the category where there are more substantial changes going on, and still leave us with the negative resolution procedure. I am not as worried as some Opposition Members. The power under the clause is a two-year power only, so it is clearly related to the translation and transition period, which I find reassuring. There are also clear restrictions in clause 7(6) on Ministers changing taxes, inventing criminal offences and all those kinds of things, because they would obviously require primary legislation. We need to continue our debate on whether those two lists—the list of permissive powers and the list of restrictions—are the right lists.

--- Later in debate ---

[Mr Baker]

The committee will be busy, and that is why I am so grateful for the fact that several hon. Members—presumably including the hon. Gentleman—seem to be volunteering to do the important duty of serving on it, which no one should take lightly. I say to my hon. Friend that we have been extremely clear that any major change will come through primary legislation, but I cannot say that there will be no policy changes at all, however minor. The reality is that if a function comes back to the UK and we have to make a choice about whether it is allocated to the PRA or the FCA, that could be described as a policy choice.

I want to be clear with the Committee. I cannot say that there will be no policy changes whatever, but I can say that the Bill is about certainty, continuity and control. It is about making sure that the law works the day after we exit in substantially the same way as it worked the day before, from the point of view of those who are subjected to it. I can see that my hon. Friend brings great insight to the matter.

[Matthew Pennycook]

On a related point about the new sifting committee, will the Minister outline the Government’s view—this is partly a matter for Standing Orders—on how the chair of that committee would be appointed and whether Parliament could have a role in the election of the chair, rather than the post being appointed by the Government?

[Mr Baker]

The hon. Gentleman has been generous enough to say that he appreciates that that is a matter for Standing Orders. I am very sensitive to the role and powers of Parliament, which we have discussed throughout proceedings on the Bill. As a Minister, I really do not want to stand at the Dispatch Box and trespass—in this debate, of all places—on Parliament’s right to set its own Standing Orders.

Exiting the EU: Sectoral Analysis

Matthew Pennycook Excerpts

Tuesday 7th November 2017 Commons Chamber

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

(Urgent Question): To ask the Secretary of State for Exiting the European Union if he will make a statement on when the Government intend to provide the Select Committee on Exiting the European Union with impact assessments arising from sectoral analyses carried out by Her Majesty’s Ministers.

[The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Steve Baker)]

We have this morning laid a written ministerial statement on this issue, which sets out the timeline and nature of our response to last week’s motion. As the Government have made clear, it is not the case that there are 58 sectoral impact assessments. During the Opposition day debate, the Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Worcester (Mr Walker), told the House:

“there has been some misunderstanding about what this sectoral analysis actually is. It is not a series of 58 economic impact assessments.”—[Official Report, 1 November 2017; Vol. 630, c. 887.]

The Secretary of State for Exiting the EU made the same point during his appearance before the Lords EU Committee on 31 October, and to the House at oral questions to the Department for Exiting the European Union on 2 November.

Let me clarify exactly what the sectoral analysis is. It is a wide mix of qualitative and quantitative analysis, contained in a range of documents developed at different times since the referendum. It means looking at 58 sectors to help to inform our negotiating positions. The analysis examines the nature of activity in the sectors and how trade is conducted with the EU currently, and in many cases considers the alternatives after we leave the EU, as well as looking at existing precedents.

Our analysis is constantly evolving and being updated, but it is not, and nor has it ever been, a series of impact assessments examining the quantitative impact of Brexit on these sectors. Given this, it will take the Government some time to collate and bring together this information in a way that is accessible and informative to the Committee. We will provide this information to the Committee as soon as possible. We have made plain to the House authorities that we currently expect this to be in no more than three weeks.

[Matthew Pennycook]

Here we are again, Mr Speaker. As you will know, Members from both sides of the House have repeatedly requested that the 58 sectoral analyses undertaken by the Government be released. On each occasion prior to last Wednesday’s debate on our motion, Ministers argued that publication of these analyses would compromise the UK’s negotiating position. On no occasion did Ministers argue or imply that the information did not exist as discrete documents, yet yesterday, in his letter to the Chair of the Brexit Committee, that was precisely what the Secretary of State argued. Can the Minister tell the House why, if the information that Members have repeatedly called for does not exist as a series of discrete impact assessments, a clear impression has been allowed to develop over many months that it does?

In a response dated 29 September 2017 to a freedom of information request submitted by my hon. Friend the Member for Feltham and Heston (Seema Malhotra) requesting details about the analyses and their publication, the Department’s FOI Team stated:

“the Department for Exiting the European Union…holds the information you have requested”.

Yet in the Secretary of State’s letter to the Chair of the Select Committee, he implies that it will take time to collate and bring together the information because some of it is held by other Government Departments. Can the Minister confirm that the information given by his Department’s FOI Team on 29 September is correct and that the Department holds the information? If not, why was the Department’s FOI team permitted to state that the information is held? If the Department holds some of the information but not all of it, what is preventing the information that is available from being released to the Brexit Committee immediately?

This farce has dragged on for far too long. Ministers cannot use semantics and doublespeak to avoid the clear instruction that this House has given. There can be no further delay; Ministers just need to get on with it.

[Mr Baker]

The hon. Gentleman says that an impression has been allowed to develop. It was never our purpose to allow such an impression to develop. As I have explained, the Government carry out a wide range of analysis across these sectors in order to inform our negotiating position. Our purpose is to develop our negotiating capital. Our purpose is not to create the kinds of stories that the hon. Gentleman seems to be pursing. The Government hold a wide range of information across a wide range of documents. The information is provided by Departments and collated by my Department, but what it does not comprise, and has never comprised, is quantitative forecasts of impact on those sectors. I think that the public will look at Labour Members today, look at what they are asking for, look at the kind of narrative they are trying to create, and ask, “Whose side are they on?”

European Economic Area: UK Membership

Matthew Pennycook Excerpts

Monday 6th November 2017 Commons Chamber

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

It is a pleasure to wind up this debate, and I commend my hon. Friend the Member for Aberavon (Stephen Kinnock) and his co-sponsors, my hon. Friend the Member for Lewisham East (Heidi Alexander) and the right hon. Member for Broxtowe (Anna Soubry), for securing it. Each of them made forceful and thought-provoking contributions, and I thank the many other Members who have made excellent speeches.

The Opposition have consistently called for the maximum parliamentary transparency and accountability compatible with conducting the Brexit negotiations, and for Parliament to have more of a grip on the process. That is why we welcome the fact that this debate is taking place, and support the efforts of hon. Members from both sides of the House who have sought to secure greater clarity and certainty about what steps, if any, would be required for the UK to withdraw from the European economic area as a matter of international law. As always in these Brexit debates, we have covered a wide range of issues, but the motion refers specifically to continued membership of the EEA and to whether article 127 of the EEA agreement needs to be formally triggered. It is on that that I want to focus my remarks.

As several hon. Members have said, the EEA is an arrangement that enables three non-EU countries—Iceland, Liechtenstein and Norway—to participate in the EU internal market and allows the 28 EU member states to benefit, as Britain undoubtedly has, from preferential access to their markets as part of that agreement. Formally, the contracting parties to the EEA agreement are the 31 individual counties, although the EU itself was also added as a contracting party in 2004, because the EEA has a mixed agreement. As such, like other EU member states, the UK is a signatory to the agreement.

Article 127 of that agreement, which is the focus of the motion, sets out a basic rule for withdrawing from it. The article requires a contracting party wishing to leave the EEA to provide 12 months’ notification of withdrawal to the other contracting parties to give them time to modify the agreement. Taken at face value, article 127 suggests that the UK will have to give formal notification of withdrawal from the agreement to the other 30 contracting parties if it intends to leave the EEA. As several Members have suggested, the implication is that unless such formal notification is given, the UK will remain a contracting party to the agreement and a participant in the EEA after it has exited the EU.

It is worth briefly considering the implications of that argument, because there are reasons to believe it would not be the quick fix that many assume it to be. At a minimum, if the UK were able to remain a participant in the EEA after it had exited the EU, simply by means of failing to provide formal notification under article 127, it is likely that formal modification of the EEA agreement would still be required. As I sure the House is aware, it would involve an onerous, time-consuming and uncertain process of treaty change and ratification. That is because some parts of the EEA agreement refer to the contracting parties, which could be any of the EEA states, but other parts refer specifically to EU and/or EFTA states.

The situation could not therefore apply to the UK after Brexit unless it joined EFTA, which, as several hon. Members, including my hon. Friend the Member for Ilford South (Mike Gapes) and my right hon. Friend the Member for East Ham (Stephen Timms) have said, would not resolve crucial issues such as the customs union or the Northern Ireland border, and it would not be a straightforward process. I note the comments of the Norwegian Prime Minister in August that joining EFTA, even for a temporary period, would, in her words, be a “challenging and costly” undertaking.

To illustrate the problem that would be created if we attempted to remain part of the EEA simply by letting this lapse, rather than by providing formal notification, it is worth examining article 36 of the agreement. The article makes it clear that the beneficiaries of the right to the freedom to provide services are EU nationals and EFTA state nationals. Hypothetically, if the UK attempted to remain in the EEA as a third type of contracting party, it would therefore be subject to the rules of the EEA agreement, but its citizens and businesses would not benefit, which I do not think anyone in the House would countenance. The EFTA option is therefore the only viable one in the majority legal opinion, but as several hon. Members have said, that is not as straightforward as some would like to suggest.

However, taking a step back, it is not even clear whether the requirements of article 127 apply to a contracting party that has decided to end its membership of one of the two bodies—the EU and EFTA—that enable a state to be party to the agreement in the first place. It is not clear because it has never been tested. It is true that there is no provision in the EEA agreement requiring a contracting party to leave the EEA if it ceases to be a member of the EU or EFTA, but the wording and spirit of the agreement clearly appears to rest on the assumption that only EU or EFTA states can be party to it.

[Sir Edward Leigh]

This is all very interesting as a legal lecture, but is the Labour party in favour of staying in the EEA?

[Matthew Pennycook]

The Labour party’s position is very clear: we want to seek a deal that retains the benefits of the single market and the customs union. We think we should be a member of the single market for the transitional period. Whether the EEA option is the only viable one for doing so during the transition is a question for another day. The wording of the motion on article 127 and continued membership of the EEA is very specific.

In short, the situation is entirely unclear. In the opinion of the House of Commons Library, the majority legal view is that under the present wording of the EEA agreement, it is impossible to be a party to that agreement without being a member of the EU or EFTA. That view has been put forward by a number of experts, including, most prominently, Professor Baudenbacher, the President of the EFTA court. He has argued that there is no scope within the EEA agreement for a third type of a contracting party that is neither an EU nor an EFTA member. The argument has not yet been tested in court.

[Mr David Jones]

Will the hon. Gentleman tell us whether the Labour party agrees with Professor Baudenbacher?

[Matthew Pennycook]

As I have said, this legal opinion has not been tested. Interpretations differ, but I would say that the majority legal view supports Professor Baudenbacher’s assertion that there is currently no way to become a third type of contracting party to the agreement.

The argument has not been tested in court, as I have said. As the House will know, in February 2017 the High Court was asked whether the Government required the explicit consent of Parliament to enable them to leave the EEA, but the application was rejected on the grounds that it was premature since the Government had not then made a final decision on their EEA withdrawal mechanism. As things stand, in the absence of greater clarity, the door is clearly open for future legal challenges against the Government on this issue.

Greater clarity is required, and I have no doubt that the Government are aware of that. I assume their position on this matter is under review. That position has certainly evolved over time. In a response in December 2016 to a written question submitted by my hon. Friend the Member for Nottingham East (Mr Leslie), the Government were clearly interpreting subsection 1 of article 126 of the agreement to mean that the UK is a member of the EEA only in its capacity as an EU member state. As such, we will automatically exit and secede from the agreement when we leave the EU.

However, the Government since appear to have shifted away from that position. According to reports of court proceedings taken from a judicial review application to the divisional court in February, the Government accepted that article 126 did not

“give rise to termination of the EEA Agreement ipso jure [in law]”.

More recently, in responding to a question posed by my hon. Friend the Member for Aberavon on 7 September, the Secretary of State argued that although article 127 does not need to be triggered for the agreement to cease to have effect,

“we are looking at it just to make sure, for clarity purposes, that we meet its requirements.”—[Official Report, 7 September 2017; Vol. 628, c. 285.]

Is the Minister able to tell the House today what progress has been made in that regard? The Government’s latest position appears to be that even if our EU exit does not automatically terminate the EEA agreement in law, any continued signature to the agreement would not equate to functional single market membership.

As my hon. Friend the Member for Lewisham East said in her powerful speech, whatever one’s opinion about whether the UK should be in the EEA, out of it, in it for a few years or in it for decades, it is crucial that we have greater clarity on this matter. I hope that in his summing up, the Minister will shed more light on the Government’s position before we come to the Committee stage of the European Union (Withdrawal) Bill.

Oral Answers to Questions

Matthew Pennycook Excerpts

Thursday 2nd November 2017 Commons Chamber

[Mr Davis]

I have made this point over and over again. The charter of fundamental rights is essentially a list of existing rights and does not, as far as we can see, generate any new ones. I have said that if the shadow Secretary of State can identify a right that will be lost, we will put it back.

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

Of all the people the Prime Minister could have chosen to fill yet another vacancy in her Brexit team, last week she settled on someone who has openly called for the scrapping of the working time directive, the temporary agency work directive, the pregnant workers directive and, in his words,

“all the other barriers to actually employing people.”

What signal does the Secretary of State think Lord Callanan’s recent appointment sends to workers across the country about how this Government will approach maintaining their rights at work?

[Mr Davis]

The new Minister in my Department, the noble Lord, is a brilliant appointment, and he will deliver the Government’s policy incredibly well.

[Matthew Pennycook]

The public will rightly be suspicious about the commitments that the Secretary of State has given because they know that the sentiments that Lord Callanan expressed are widely shared on the Government Benches. There is an easy way to solve this: the Secretary of State could accept the amendments to the European Union (Withdrawal) Bill that provide for enhanced protection for workers’ rights, not just transposition. Will he think about making a commitment to that principle today?

[Mr Davis]

I am afraid I will take no lectures from somebody who voted against the entire Bill and therefore undermined the protection of all workers.