European Union (Withdrawal) Bill

Debate between Oliver Letwin and Matthew Pennycook

Committee: 7th sitting: House of Commons
Wednesday 13th December 2017 Commons Chamber

[Sir Oliver Letwin (West Dorset) (Con)]

I just want to clarify whether the hon. Gentleman means what I think he means by what he just said. Does he mean that if the House did not approve a withdrawal agreement, his view is that the Government should have to ask for an indefinite extension of article 50 until the House has approved a set-up that it finds acceptable?

[Matthew Pennycook]

I do not think that is necessarily the case, for several reasons. First, there is no reason why a withdrawal agreement cannot be reached, perhaps even sooner than October 2018—

[Matthew Pennycook]

I think it will take a long time. The Minister can confirm this, but I assume the Government would be pleased to conclude the withdrawal agreement before October 2018, if possible. However, there are several things that might happen, one of which is that the Government go back to the negotiating table and try to improve on the deal. I cannot see what is unreasonable about filling in the gaps or asking for revisions, were that the expressed will of the House.

[Sir Oliver Letwin]

I am grateful to the hon. Gentleman for giving way yet again. I think that he has just confirmed not that it would necessarily follow that the Government would have to extend indefinitely, but that it would be possible that the Government, in his view, should have to extend indefinitely because this House had not agreed to the withdrawal agreement. In other words, he is saying, is he not, that, if this House does not approve the terms on which we leave, until and unless it approves the terms on which we leave, we should not leave. Is he saying that, or not?

[Matthew Pennycook]

What I am saying is that there is any number of options that might happen, but let us bear in mind there is a period after October 2018 for the Government to return to the negotiating table and seek to revise or improve the terms. It does not necessarily mean an extension of article 50—I know that the right hon. Gentleman is trying to draw me down that path.

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[Sir Oliver Letwin]

I will not give way.

[Matthew Pennycook]

rose—

[Sir Oliver Letwin]

I will give way to the Opposition spokesman in a moment.

There therefore can arise circumstances in which the choice, in the end, is between accepting leaving with no deal and not accepting leaving. I continue to believe—it is important that there is honesty on this point—that Opposition Members are essentially arguing that this House should have the ability to derail the process.

[Matthew Pennycook]

I do not think that that is a fair characterisation of my argument. The right hon. Gentleman has said that there is a possibility, in certain circumstances, of sending the Government back to ask for the deal to be changed. It is possible that that might be turned down, so it is not certain, but it is possible. Does he think that that should be an option, and if so, if he votes against amendment 7, what other mechanism might we use to send the Government back to at least try to improve a deal that this House felt was sub-optimal?

[Sir Oliver Letwin]

I am very happy to answer that question, and it will bring me neatly on to the point I want to make about the amendment tabled by my right hon. and learned Friend the Member for Beaconsfield. The answer, of course, lies in the combination of the proceedings on the resolution that will have to be agreed by this House, during which it will be perfectly possible for this House, both in debate and in the way it votes, to tell the Government, if there is time, to go back and try again; and of the proceedings on the withdrawal and implementation Bill, during which again, if there is time, the House could reject the proposition and ask the Government to go back.

We then come to the nub of what happens if there is no time anymore because the Government cannot get a renegotiation and cannot get an agreement—a further prolongation—of the kind that my hon. Friend the Member for Chelmsford describes. The question arises of whether Opposition Front Benchers are recommending, in those circumstances, that leaving without a deal is the possibility it needs to be for article 50 and the referendum to be respected. That is a crunch question that the hon. Member for Greenwich and Woolwich cannot avoid.

[Matthew Pennycook]

I will be brief, and then leave it there, but I want to pick up on two of the right hon. Gentleman’s points. First, I think there will be time. Last week’s joint agreement makes it clear that there must be time, in accordance with our own procedures, to look at the withdrawal agreement and then ratify it.

The right hon. Gentleman said that there is a possibility, on the basis of the Government’s commitment to a motion, to send them back to renegotiate, but that is not what his Secretary of State says. The Secretary of State says of the motion it is an up/down deal, and that a no vote would be the end of it—leaving without an agreement; not going back to the negotiating table.

[Sir Oliver Letwin]

There is no possibility of precluding Parliament from making such a resolution one way or the other. That is up to Parliament, and it is up to the Government of the day at that point to respond as they choose. No Government would sensibly respond in the way the hon. Gentleman describes, so I do not think that that is a realistic possibility.

European Union (Withdrawal) Bill

Debate between Oliver Letwin and Matthew Pennycook

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.

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[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.