European Union (Withdrawal) Bill

Nick Thomas-Symonds Excerpts

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

[Robert Neill (Bromley and Chislehurst) (Con)]

I shall support the Bill on its Second Reading for the simple reason that it is necessary. I do not do so with relish, because I would rather that we were not leaving the European Union, but, as a democrat, I accept the outcome of the referendum. And if we are to leave, we must do so in an orderly fashion, and it is therefore particularly important that we have legal certainty and continuity. The objective behind the Bill, of incorporating EU laws under the acquis into our law, is perfectly sensible, and that is why I shall support it, but we must also have a Bill that is fit for purpose and actually achieves that effectively. Although I shall support the Bill on Second Reading, as will become apparent, I do so on the basis that it needs improvement in a number of areas in Committee.

I had the chance to read in detail the impressive speeches of my right hon. and learned Friends the Members for Rushcliffe (Mr Clarke) and for Beaconsfield (Mr Grieve), who I am glad to see are both in the Chamber. I agree with their analysis, and I will not seek to repeat it all. I adopt what they said about the areas where improvement is needed. It has already been pointed out that there are difficulties with the Henry VIII powers. It seems to me that clauses 7 and 9 go beyond what is acceptable or necessary, and I hope that the Government will approach that matter in a sensible and constructive spirit. Equally, delaying the Bill would do no favours to the good governance of the country, to citizens or to businesses and business confidence, so I certainly have no truck with the Opposition’s approach of seeking to undermine the Bill.

We need to make clear the areas of the Bill that need improvement. There is of course a use for so-called Henry VIII powers for making secondary legislation in appropriate cases, but in some areas we are dealing with matters of the most profound significance for individuals and businesses. I hope that the Ministers, who are reasonable people, will listen to constructive amendments that would provide reassurance and safeguards against inappropriate use of those powers and would improve the Bill by bringing greater clarity to the way they can be applied.

I shall touch briefly on a couple of other matters. I hope that we can look at the opportunity to assist the judiciary with how they interpret the EU acquis, which will be incorporated in our domestic law once we have left. The recently retired President of the Supreme Court, Lord Neuberger, made this point powerfully, and he did not do so lightly. It is frankly not fair to leave judges to fish in the dark when they come to interpret some of the legislation.

A particularly important issue in this respect is that once we leave the direct jurisdiction of the European Court of Justice, the opportunity to seek preliminary rulings on issues will no longer exist and we have to find alternative means for dealing with that. My right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) referred to the Francovich situation. She is right about that issue, which should be addressed. Similarly, we have to bear in mind that we will incorporate EU law, which in some cases is based on the treaties. Will the UK courts be able to take the treaties into account in assessing how incorporated law should be applied post our leaving? Those are important areas where greater clarity is needed. What is to be done about situations where incorporated law grants a right to a UK citizen or business but our leaving will, at the moment, leave a gap as to whether that UK citizen or business has a remedy?

[Nick Thomas-Symonds (Torfaen) (Lab)]

One of the issues is that with environmental law, for example, there is currently a remedy of going to the European Court of Justice, but there is no replacement in the Bill as it stands.

[Robert Neill]

That is entirely right, and it cannot be rational or coherent to give UK citizens a right under UK law by incorporating European law but give them no ability to exercise that right. That applies whether a case is against another individual, against a business, or indeed against the Government. My right hon. Friend the Member for Newbury (Richard Benyon) pointed out that that also raises the issue of infraction proceedings: what is the remedy if the Government breach incorporated law?

Those important issues need to be dealt with in Committee, so I turn briefly to the programme motion. We must have time to deal with these matters properly. I want the Bill to be successful. I want it to end up as a good Bill, and that will require changes to the Bill. With good will, that can be achieved—and it can be achieved timeously, to ensure that what we need is in place at the time when we leave the European Union. I have no truck with those who seek to filibuster and needlessly delay the Bill. If I am to be able to support the Government on the programme motion, I hope that they will assure us that we can have some flexibility if more time is required for genuine, serious consideration of important amendments, but I hope that it is not needed—there is a distinction between proper consideration of serious points of amendments and the sort of filibustering that I am sure we will see. On that basis, I am prepared to give the Government a fair wind, but it is important that we get that assurance so that our important scrutiny work can be done properly.

Finally, I have just returned from Gibraltar, where I was with several other colleagues for its national day celebrations. Gibraltar will be affected by our departure from the European Union, but I am glad to say that Her Majesty’s Government of Gibraltar and the business and civil communities there are satisfied with their level of engagement in the negotiations so far. However, can I have an assurance that when we come to deal with secondary legislation that may affect Gibraltar, its Government will be fully involved in the drafting of any secondary legislation that may have an impact on them?

--- Later in debate ---

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is a pleasure to follow the hon. Member for Stirling (Stephen Kerr).

Let me make it clear at the outset that since the referendum of 23 June last year, I have always respected the outcome of the vote, both in my constituency and throughout the United Kingdom. That is why I have spent the last 15 months arguing for the best possible Brexit deal, which will secure jobs and prosperity in my constituency. This Bill, however, is not about the principle of withdrawal from the EU. It is about constitutional arrangements, and, as a Welsh Member of Parliament, I note in particular that the Welsh Government does not have the power to amend retained EU law—in other words, the law that is brought back via the Bill. This is about the kind of democracy that we are, and it is about the rights of our citizens. As I said in an earlier intervention, citizens currently have the right to take the Government to the European Court when they are found wanting in respect of certain matters, including environmental matters. Where is that remedy, or its replacement, in the Bill? It is not there.

Above all, there is the argument—I have heard it on a number of occasions, and I respect it—about bringing powers back to the House of Commons. The Bill does not achieve that. It is not so much a Bill to take back control to Parliament as a Bill to take control away from the legislature and give it to the Executive. I am deeply concerned about the Henry VIII powers in clauses 7, 8, 9 and 17; to put it simply, I do not trust Tory Ministers with those powers.

At the weekend, I was very interested to read a leaked letter signed by, apparently, up to 40 Tory MPs. It set out various red lines in respect of the transition deal that they want to see. What did it say about Henry VIII powers? It said:

“There can be no Henry VIII laws which automatically add EU/EEA laws onto our statute books”.

How are we, as Opposition Members, supposed to trust Ministers with Henry VIII powers when their own MPs will not?

I looked back at the past to see whether there is any precedent for handing over such powers to the Government. I had to go back as far as the Rating and Valuation Act 1925, would you believe, to find an Act that allowed Ministers to change the provisions of that Act. It states that

“any such order may modify the provisions of this Act so far as may appear to the Minister necessary or expedient for carrying the order into effect”.

That led the Lord Chief Justice of the day, Lord Hewart, to write a book called “The New Despotism” in 1929—I recommend it to Ministers—about what he called “the departmental despot”, who would be in a position to carry out law making away from proper accountability, away from scrutiny, and away from the reach of ordinary law.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

I agree with my hon. Friend that clauses 7, 8 and 9 are Henry VIII clauses, enabling Ministers to repeal and replace elements of the statute book at will and implying that our Parliament will not be able to take back control. It is clear that, rightly respecting the British public’s decision, we will be leaving the EU because article 50 has been triggered, but does my hon. Friend agree that, as it stands, the Bill is fatally flawed because it amounts to a power grab by Ministers?

[Nick Thomas-Symonds]

My hon. Friend is absolutely right that it is fatally flawed, and that is why I will vote against it with hon. Friends in the Lobby tonight.

I will simply never be able to trust Tory Ministers with things like workers’ rights, environmental protections and consumer rights. Let us take workers’ rights as an example. The Prime Minister has promised to retain all our workers’ rights as long as she holds office. In light of recent events, I hardly think that is particularly comforting, but in case we have any other doubts, let us just see what the then Tory Employment Minister, currently the International Development Secretary, said during the referendum campaign. She gave a speech at the Institute of Directors on 17 May 2016, about a month before the referendum. What does she want to do? To quote her, she wants to

“halve the burdens of the EU social and employment legislation”.

That is what the Tory Employment Minister said at the time of the referendum. It is no surprise that the Tories cannot be trusted now.

[Christian Matheson (City of Chester) (Lab)]

Did my hon. Friend see last Tuesday’s Order Paper, which listed a whole bunch of private Members’ Bills tabled by Brexiteer Conservative Members, including a Bill to take away the working time directive?

[Nick Thomas-Symonds]

I am grateful to my hon. Friend for drawing attention to that, and it simply reinforces the case we are making: that Tory Ministers simply cannot be trusted with powers of this nature.

We have also frequently heard the argument about the need for legal certainty, but the Bill as drafted does not provide that legal certainty. What guidance does it give to judges post-Brexit as to how they are supposed to interpret the law that originated from the European Union? Absolutely none. The idea of a preliminary reference to the European Court is of course no more, because of the red line on the ECJ. That is completely gone. The remedy that citizens once had to go to the European Court is also gone. So the idea that, post Brexit, the Bill will assist our constitutional arrangements and provide clarity is simply wrong.

[Mr Mark Francois (Rayleigh and Wickford) (Con)]

No, people will not be able to go to the ECJ—the hon. Gentleman is right about that—but they will be able to go to the British Supreme Court, just down the road from here, where decisions that affect them and their countrymen will be taken by British judges according to British law. What is wrong with that?

[Nick Thomas-Symonds]

I have nothing against British judges taking decisions. What I am talking about is the failure of this Bill to provide clarity about how the law now will be transposed into the law then. Let us talk about a judge down the road who is faced, for example, with a citizen demanding a remedy of holding the Government to account for failure to deal with pollution. They would previously have had a right to go to the European Court. What will be their right under the Bill? The Government have absolutely no idea. Let us have a Bill that gives that clarity post Brexit, which this Bill manifestly fails to do.

[Mr Francois]

Will the hon. Gentleman give way again?

[Nick Thomas-Symonds]

No, I am not giving way again; I have given way three times, and many Members want to speak in this debate.

Let me summarise by saying this: the Bill is shoddy, and undermines the parliamentary democracy that it was meant to enhance. It is not worthy of support, and I urge colleagues not to support it tonight.