European Union (Withdrawal Agreement) Bill

Philippa Whitford Excerpts

Committee stage & Committee: 2nd sitting: House of Commons & Committee: 2nd sitting
Wednesday 8th January 2020 Commons Chamber

[Joanna Cherry]

My hon. Friend is absolutely right. The reality is that if this discretion will be scrutinised only in the courts after individuals have raised concerns about the impact of delegated legislation on their rights, then the breadth of discretion that the judiciary has to determine whether something is appropriate rather than necessary could be quite problematic. Indeed, that was reflected in the previous Parliament by judicial concerns about the breadth of discretion afforded by the word “appropriate.” I tried on numerous occasions in the previous Parliament to get Ministers to explain why they must have “appropriate” rather than “necessary,” but I am not a quitter, so I will try again today, and I will be interested to hear what the Minister has to say.

Moving on to amendment 10, in the name of my hon. Friend the Member for Central Ayrshire, I believe that she will speak about it later or may wish to intervene on me, but I will just deal with it fairly briefly, because it is important. Others will obviously speak about Northern Ireland at length this afternoon, but amendment 10 deals with powers in relation to implementing the Northern Ireland protocol. As my hon. Friend said yesterday, the arrangements in relation to the protocol are pretty sketchy, with almost everything left to the Joint Committee to work out and then to be enacted, again, through delegated powers.

However, a significant difference exists between the restrictions on the powers afforded under proposed new section 8C and those under previous similar sections, such as section 8B(5) of the European Union (Withdrawal) Act 2018, because there is no restriction on the powers, for example, in relation to their ability to impinge on the devolved settlements of Scotland and Wales. Of course, concerns exist about the extent to which business organisations, the food and drink industry and, particularly, inshore fishing, as we heard yesterday, could be impacted upon in Scotland by the Northern Ireland protocol.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

This obviously also relates to the Northern Ireland Act 1998 and is of concern, perhaps in this Chamber, in relation to the Human Rights Act 1998. Looking at what proposed new section 8C would replace, the 2018 Act contains limitations that had become relatively standard, so I find it suspicious that they are missing. There is no sunset clause, no restriction on taxes or new offences and, in particular, no protection for the devolved Administrations or the Human Rights Act. That is really worrying, because we are being asked to sign up to something when we have no idea of the long-term ramifications.

[Joanna Cherry]

As, I think, a Committee of the House of Lords pointed out, it is unusual for restrictions in relation to the Human Rights Act, the Scotland Act 1998, the Government of Wales Act 2006 and the Northern Ireland Act 1998 not to appear in relation to delegated powers, so I am interested in hearing why those restrictions do not appear and in learning how the Government think the implementation of the Northern Irish protocol will impact upon the Scotland Act. Indeed, I am in interested in the impact on the Government of Wales Act and the Human Rights Act, and why the Government want to take delegated powers to interfere with the Human Rights Act and the devolved settlement in Scotland.

Turning quickly to clause 26 and my amendment 49, they relate to the concern expressed by many that the Government are amending section 6 of the European Union (Withdrawal) Act 2018—the original provision being that the Supreme Court for the whole of the UK or, in relation to criminal matters, the High Court of Justiciary were not bound by retained EU case law and could depart from that case law in the same way that those Supreme Courts would depart from their own case law. However, in an almost—I think I am correct in saying—unprecedented use of delegated legislation, in clause 26 the Government intend to take the power to pass regulations specifying additional courts or tribunals that could depart from EU law. That is a most unusual approach, and I am wondering what has prompted it.

I am interested in the justification for clause 26. Is it an act of revenge on the Supreme Court of the United Kingdom and the Supreme Court of Scotland for daring to defy the previous Conservative Government by ruling their unlawful Prorogation out of order, or is there some other rationale? I would be interested to hear what it is, because their lordships were taking a close interest in this clause. Even if I am not able to move the SNP amendment to the clause today, which would revert to the status quo in the previous Act, I am sure it will be moved in the House of Lords, because there is a real concern that the aim here is to impact upon the independence of the judiciary, and that different regulations applying to different courts about the extent to which EU law was overruled or could be applied will interfere with the important principle of legal certainty. In some ways, this is a probing amendment, but it is an amendment which, if not moved in this House, will be moved elsewhere, so it would be interesting to hear from the Government exactly why they consider it necessary to diverge so radically from the previous a course of action upon which they were determined.

Before I conclude, I want to say a few brief things about a number of important amendments tabled by the other parties. The SNP would be inclined to support the official Opposition’s amendment 4 on child refugees if they move it, although we would like to go a bit further than that, as I indicated earlier. We are also keen to support amendments from the official Opposition relating to transparency on the arrangements for Northern Ireland and on general scrutiny and oversight. We also give our wholehearted support to the amendment tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas) and to new clause 17 from our friends in Plaid Cymru.

It is, of course, a great pleasure, particularly for myself and my colleagues in the SNP, to have the company of Irish nationalists once more in this Chamber. While I totally respect and understand Sinn Féin’s historical reasons for abstentionism, it is good that we will again hear the voice of Irish nationalism on the Floor of this House and the voice of a significant part of the community in Northern Ireland. It is good to be reminded that Northern Ireland, like Scotland, voted to remain in the European Union. We will be keen to lend our support to the amendments tabled by the Social Democratic and Labour party.

In conclusion, I am certain that not one single amendment sponsored by the Scottish National party will pass in relation to this Bill, just as not a single amendment sponsored by the Scottish National party passed in relation to the Scotland Bill back in 2015, despite the fact that we had 56 out of the 59 MPs in Scotland and now have 48 out of 59.

It is worth remembering that the devolution settlement, which this Bill will undermine, was predicated on the idea expressed in the claim of right for Scotland, which asserts that it is the sovereign right of the Scottish people to determine the form of government best suited to their needs. Of course, on 4 July 2018 the previous Parliament unanimously endorsed that principle in the claim of right. The previous British Parliament accepted that it is the sovereign right of the Scottish people to determine the form of government best suited to their needs. That means that this House has itself recognised, explicitly and unanimously, the principle of self-determination for Scotland. I look forward to seeing whether the Government have any proposals to reverse that in this Parliament.

To return to what I said at the opening of my remarks, I say to the Government that the day is coming when the people of Scotland will once again vote on whether Scotland should regain its former status as an independent nation state. The hubris, insouciance and lack of respect for democracy embodied in this Bill will hasten that date and ensure victory for the independence movement.

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[Mr Walker]

I hear the hon. Lady’s point and I have great respect for the work she does in this space, but I think she misunderstands. Clause 24 simply means that, as a result of the protocol and the UK Government’s role in the Joint Committee, there will not be decisions taken to change north-south co-operation. It does not prohibit or restrict in any way a restored Executive from taking decisions on that within the confines of the North South Ministerial Council. I have to move on now, but, in fairness, I think that that addresses the point.

The Government urge the hon. Member for North Down and the hon. Member for Foyle to withdraw amendment 33 and new clause 61 as they risk creating legal uncertainty for businesses and individuals in Northern Ireland, which is unacceptable to the Government. Our departure from the EU requires the Government to ensure that the statute book is able to function post exit, and these amendments put that at risk.

I wish now to turn to the important amendments 12, 19, 50 and 51 and new clauses 44, 52, 55 and 60. As Members can see from article 6 of the protocol, nothing in the withdrawal agreement prevents the Government from ensuring access for Northern Ireland goods to the market in Great Britain. The Prime Minister has been absolutely clear that, beyond our obligations under international law, there will be no new checks and processes on the movement of such goods. Our manifesto commitment is absolutely clear: the Bill gives us the power to deliver this. We recognise the strong voice with which Northern Ireland’s businesses have been speaking on the importance of unfettered access and of protecting Northern Ireland’s position within the internal market as a whole and the cross-party, cross-community support for this to be delivered. It can be delivered through clause 21 and through the opportunity to follow up through the Joint Committee, as we discussed earlier. We will, of course, continue to engage with businesses and stakeholders, but I none the less urge the right hon. Member for Lagan Valley and the hon. Member for Foyle to withdraw these amendments.

[Dr Whitford]

rose—

[Mr Walker]

I will take an intervention from the hon. Lady on one of her own amendments.

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[Mr Walker]

I will absolutely come back to my hon. Friend on the latter point. There are a number of places in the Bill where it is very clear that there will be active consideration by the Commons of the secondary legislation. That is an important part of the parliamentary scrutiny process.

I turn to amendment 10 in the name of the hon. Member for Central Ayrshire (Dr Whitford). It would inhibit our ability to implement part 3 of the withdrawal agreement and the protocol, particularly with regard to the ability to legislate for the consent mechanism and the provision of unfettered access. However, I reassure the Committee—this picks up from the point made by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill)—that any amendment to primary legislation through clauses 18 to 21 would have to be actively approved by votes of Parliament.

[Dr Whitford]

But this changes clause 8 in the original European Union (Withdrawal) Act 2018, which included limitations meaning that these sweeping powers without a sunset clause could not be used in relation to the Human Rights Act, the Government of Wales Act, the Scotland Act or the Northern Ireland Act. What changes exactly does the Minister feel he would need to make to the Scotland Act to meet the relevant aspects of the Northern Ireland protocol? Why is the legislation being changed? The Minister should justify why those protections and limitations existed in the original Act but he now feels bound to take them out. What is he planning to change in the other devolved settlements, for Scotland and Wales?

[Mr Walker]

The hon. Lady is making a comparison between two separate pieces of legislation. We have no dastardly plans to change the devolution settlement. However, we want to ensure that we are able to take the necessary steps to implement the protocol, including providing unfettered access across all parts of the UK, in the limited period available. We will want to engage with the devolved Administrations and legislatures about the most effective way of achieving that.

[Dr Whitford]

Will the Minister give way?

[Mr Walker]

I will not, I am afraid.

The Government cannot accept amendment 49, as it would mean that we could be inadvertently bound by European Union rulings for many years. Instead, clause 26 ensures that we and our courts will be able to determine the extent to which courts are bound by historic Court of Justice of the European Union decisions after the implementation period. This will be done sensibly, so I can provide some reassurance to my hon. Friend the Member for Bromley and Chislehurst. The Bill commits us to consult the senior judiciary across the UK before making regulations, and we do not intend this in any way to upset long-standing constitutional principles such as the structure and hierarchy of the court system. This clause simply enables us to take back control of our laws and disentangle ourselves from the EU’s legal order, but in a way that will be consulted on carefully with the judiciary, recognising the structures and hierarchies that exist there.

New clauses 1, 6 and 17 and amendment (a) to new clause 6 all seek to introduce various statutory roles for Parliament, and for the devolved Administrations and legislatures, in the future relationship negotiations. These are unnecessary requirements that risk impeding and delaying negotiations. New clause 6 in particular imposes onerous requirements for consultation and impact assessments, but would make it very challenging indeed to conclude negotiations by the end of 2020.

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[James Duddridge]

I thank that Committee for the work it has done, although I must admit that my focus has been on the work the European Scrutiny Committee is doing during the implementation period. I am more than happy to get back to the hon. Gentleman later on the specific point about the Committee he mentions. As hon. Members will know, case law and an array of legal authorities provide a very narrow scope for Governments to exercise powers of these types. They are standard provisions to permit “housekeeping” modifications.

[Dr Whitford]

The Minister is talking about the delegated powers, which are sweeping and extensive throughout this Bill. Why are the Government so reluctant to have limitations that protect key primary legislation such as the Human Rights Act and the devolved Acts, which were just voted against by Government Members?

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New clause 28 seeks to introduce a clause that would require a further confirmatory referendum. We do not want any more referendums. May I gently remind the right hon. Member for Kingston and Surbiton (Sir Edward Davey)—he is not in his place, but I will send him a copy of Hansard—that we have recently had a general election and we are committed to leaving the European Union on 31 January? I see that the hon. Member for Oxford West and Abingdon (Layla Moran) is in her place. Let me apologise to her as the new clause has been backed by the entire Liberal Democrat Bench. I hope that the amendment will be withdrawn or not moved.

[Dr Whitford]

Clause 38 addresses parliamentary sovereignty. Independent reviews of the clause, including by the Library and the Institute for Government, point out how completely meaningless it is. It purely states something without giving it any power. It has no power in law, yet throughout this Bill, sweeping delegated powers are being taken from this Parliament to the Executive. The Government have just voted against limiting those powers in the standard way that they were limited in the 2018 withdrawal Act to protect things such as the Human Rights Act, the Government of Wales Act, the Scotland Act and the Northern Ireland Act. The Parliamentary Under-Secretary of State for Northern Ireland, who was at the Dispatch Box for the previous group of amendments, could not explain why the Government felt that they could not accept such limitations. That is where the concern comes, particularly on clause 21. There is no sunset clause—there is no limit. This plan to rebalance powers between the Executive, Parliament and the courts was in the Tory manifesto, and we literally see it coming to life inside this Bill.

The Minister mentioned clause 5, which gives the withdrawal agreement supremacy over all domestic law. It will not allow parliamentary scrutiny of any of the changes that result from that. These sweeping, broad-brush powers are concerning people. In particular, the removal of clause 31 of the original withdrawal agreement Bill in its entirety means that Parliament has no voice, no influence and no ability to set the terms or aims of the future relationship, which goes way beyond any trade deal. Such actions are making people afraid of what is going on. Furthermore, we have not heard any good argument from the Government as to why Parliament is suddenly being excluded in this way.

It is bizarre now to take this stance of “The lady doth protest too much” and, “Oh, we all believe in parliamentary sovereignty.” In actual fact, what we see is a complete undermining of the sovereignty of this Parliament. We also see an undermining of the sovereignty of the other three Parliaments in the United Kingdom. The devolved Governments are being undermined. They also will have no influence over the future relationship. They are also having to face delegated powers being taken from them, so that the Government can legislate on devolved areas even without the involvement of devolved Ministers. Twenty years after devolution, this is seen as an absolute power grab and an absolute attack on the devolved Parliaments of the United Kingdom.

In amendment 9, we specifically talk about an economic impact assessment. There has not been one since 2018—and that was on the Chequers agreement. Frankly, having read the Chequers agreement, which many Members on the Government Benches, including the Prime Minister, did not support, I can say that it was a complete cake-and-eat-it agreement. Frankly, it was never an agreement; it was just a wish list that had no chance of happening. There has been no economic impact assessment since then, and certainly no economic impact assessment of what this Bill will do.

We have heard all the representatives of Northern Ireland coming together across the divide of the communities to ask for regular economic impact assessments on what this Bill does to Northern Ireland. As someone from a coastal, west of Scotland constituency, let me point out that we will be looking across at Northern Ireland, which will be sitting in the single market. Fishermen in my constituency are talking about losing their businesses or having to register in Northern Ireland to try to compete. Our farmers will face delays at ports and may face tariffs. They will certainly face huge bureaucracy that farmers in Northern Ireland will not face. I have two big just-in-time industries in my constituency: aerospace and pharmaceuticals. How are we going to keep those industries, let alone attract other businesses? They will look at Ayrshire and they will look at Northern Ireland; one is in the single market and one is not. I am sorry, but the idea that the economic assessment that was done on the Chequers deal would count for this deal and this Bill is frankly complete nonsense.

When this Government talk about their precious Union, it is important that they respect the devolved Governments, who are being given no locus in the future relationship. The fact that the Scottish Parliament will be voting on withholding a legislative consent motion for this legislation was dismissed as irrelevant by the Prime Minister himself at the Dispatch Box before Christmas. If it is so important to Members on the Tory Benches to preserve their precious Union, may I suggest that it is a bit like a marriage? Imagine turning around and saying to the missus, “Tough, I won’t give you a divorce”, “Tough, I don’t want to listen to you”, or “Shut up, because I’m in charge.” Imagine saying things like, “Yeah, give me half your wages” and “You can’t leave me, because I bought a big 4x4 and now we have an overdraft.” That is what the relationship looks like from Scotland.

As the former Prime Minister and the Attorney General both pointed out, it is not possible to maintain a union of nations that is not voluntary and that countries do not wish to be a part of. That has repeatedly been put forward as a Brexit argument. You will not keep Scotland in your precious Union with the utter disrespect that is being shown for her Government, her people and how her people voted. The Scottish National party is the party that people voted for, so repeatedly saying that the people of Scotland “don’t want this” and “don’t want that” is nonsense. If Government Members believe in democracy, they should be respecting not just the Scottish Government, but the Scottish Parliament. They cannot ride roughshod with delegated powers over the devolved Governments of Northern Ireland, Wales and Scotland. It will certainly not protect their precious Union.

[Sir William Cash]

The hon. Member for Bristol West (Thangam Debbonaire) said, “What is this sovereignty?” It is terribly simple; it is the ability to make our own laws in our own Parliament, in accordance with the electoral decisions taken by the people in line with a manifesto and with their constitutional arrangements, which have been in place for many generations. It is this for which people fought and died in world wars. The very simple reality is that sovereignty is about whether or not we can govern ourselves.

My rebellion against the Maastricht treaty was based on the simple proposition that that treaty created European government. In 1971, we entered into arrangements—then enacted through the European Communities Act 1972—on the basis of a White Paper that said we would never give up the veto under any circumstances, and furthermore that to do so would be not only against our own national interest, but contrary to the fabric of the European Community itself. Believe it or not, it was understood in Government circles at that time that the veto enabled us to retain the actuality and reality of the ability to make our own laws. Gradually, over the next 30 or 40 years, that veto was whittled away to extinction, and the processes that I have to deal with day in, day out in the European Scrutiny Committee—and have been doing so since I first went on the Committee in 1985—have demonstrated to me that, in fact, we have not been governing ourselves. That is why I entered into opposition to the Maastricht treaty and then to Nice, Amsterdam and ultimately Lisbon. The reality of what has been happening is that the individuals who sit on these green Benches have simply had their ability to make the laws that they are entitled to make on behalf of the people who vote for them reduced to rubble.

In return, we have been faced with an increasingly dysfunctional European Union that did not work in the interests of the British people, and that is why we got the result we did in the referendum. It was the people who voted. Interestingly, when the decision was taken to hold the referendum, it was decided by six to one in the House of Commons. We voluntarily agreed that we would abdicate our right as Members of Parliament and let the people of this country make that decision on their own behalf. All the resistance we have seen over the past three years from the Opposition Benches and from a number of our recalcitrant colleagues, many of whom are no longer in the House, was based on a complete failure to understand that the decisions that were taken in that referendum were authorised by Parliament and, indeed, by themselves.

Section 1 of the European Union (Withdrawal) Act 2018—I did the first draft of the Bill, which was accepted by the Government—said that the European Communities Act 1972 would be repealed on exit day. That is now in fact implementation period day, but for practical purposes it comes to the same thing. The Opposition religiously—or irreligiously, depending on how one cares to put it—decided that they would oppose that Bill in principle, as they did on Second Reading and on Third Reading. Every single Conservative, even my recalcitrant colleagues—even Kenneth Clarke—voted for the withdrawal Act on Third Reading, but the Opposition denied not only the sovereignty that was being restored by the repeal of the ’72 Act but the democracy that went with it. That is a fundamental issue. They destroyed their credibility with the British people, and I believe that the ordinary man in the street—the people who voted in the last general election—understood that.

I have already made the point that European laws are made behind closed doors by a majority vote. Nobody can say that the decisions that were taken, which we had to accept because we had no alternative, were laws made by our elected representatives. I have never heard such trash coming from a Front Bench as the suggestion that the fact that these people happen to be elected Members of Parliament in the Council of Ministers conferred upon them some form of democratic right to decide.

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[John Redwood]

My right hon. Friend puts it brilliantly; that is exactly the kind of limitation of our sovereign power, and of our freedom to make decisions that please our electors, that I have been talking about. It is quite important, given the history of this debate.

Turning to the Scottish nationalists, I agree with what the Scottish nationalist spokeswoman, the hon. Member for Central Ayrshire (Dr Whitford), said: we only want volunteers in our Union. We are democrats. We believe that the Union works, but that if a significant portion of the Union develops a feeling that it is not working for them, we need to test that. I was a strong supporter of accepting the Scottish National party idea, just a few years ago, that there should be a referendum. That referendum had the full support of the United Kingdom Parliament, which is the sovereign authority for these purposes on Union matters. I also fully agreed with the then SNP leadership when I talked to them about it—I think our formal exchanges were recorded in Hansard. They said that they agreed with me that whichever side lost should accept the result, and that it would be a “once in a generation” event, not a regular event that happened every five years until one side got the answer that it liked. I hope that the SNP will reflect on that. We are democrats and we want volunteers in our Union, but we cannot pull it up and examine it every two or three years through a referendum, which is very divisive, expensive and damaging to confidence and economic progress. We should live with the result.

[Dr Whitford]

Does the right hon. Gentleman accept that we did respect the result? We have been here for four and a half years. We would not have been if we did not respect it; we would have been independent, and we would not be being dragged over the EU cliff at the end of this month. He should accept that the claim of right that Scotland has had for 331 years did not disappear in 2014, and that his party has changed the entire fabric of the United Kingdom. It cannot continue to treat Scotland’s views with disrespect.

[The Second Deputy Chairman of Ways and Means (Sir Gary Streeter)]

Just before the right hon. Gentleman continues, we do not want to be dragged into a debate on Scottish independence on clause 38. Let us continue to debate these amendments and the clause.

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[Geraint Davies]

Well, that was very helpful.

Some hon. Members have failed to understand this. I remember the big debate over the Transatlantic Trade and Investment Partnership, for example, and over these investor-state dispute settlement clauses being used by the Americans on fracking and other issues. Once we are in a situation where, instead of being in the powerful trading bloc of the EU, negotiating head to head with China or the United States from a position of strength to sustain our environmental and workers’ rights and our standards, we will suddenly instead be broken free, semi-detached, and turning our back on our biggest local market—[Interruption.] It is all very well for the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith) to chunter, but that is what will happen. It is already being discussed in the trading arrangements with the United States. The United States is saying, “Right, you’re on your own now and we are going to have this relationship and we will enforce it through the international tribunal.” That is what is going to happen.

Let us take as an example the simple European REACH protection—the regulations concerning the registration, evaluation, authorisation and restriction of chemicals. If the right hon. Member for Chingford and Woodford Green were making chemicals in Europe, he would have to prove they were safe before marketing them. In the United States, he would just be able to market them and an environmental protection organisation would have to prove them harmful. That is why they sell asbestos in America, and that is why there will be pressure for us to have asbestos in our brake pads here. That is why there will be pressure for us to have hormone-impregnated meat from America imposed on our growing children, who could then have premature pubescence. I know that some people think that that is sovereignty, but I do not.

[Dr Whitford]

Is the hon. Gentleman aware that a threat to the sugar tax is already within the trade papers that have come out, registering the discussions that have already been happening with the US? The sheer threat of a Government, whether a devolved Government or this one here, being dragged through an investor-state dispute settlement can create a fear of public health measures such as the one we have in Scotland on the minimum unit pricing on alcohol, which this Parliament have not got round to. They might find that they struggle to get round to it in the future because they would be challenged, which would threaten the public health of everyone in the United Kingdom.

[Geraint Davies]

The hon. Lady makes an excellent point about the chilling effect of that overhanging threat.

Let us be clear on the specifics. Lots of people talk about the impact of this on our health service and about the Americans arriving and taking our data and privatising the health service. But apart from that, let us think about the public health impact of these changes in relation to sugar. The NHS spends £12 billion a year on diabetes—

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[Dr Whitford]

Does the hon. Gentleman recognise that investor dispute-settlement resolution systems in existing treaties are very one-sided? They allow private business to sue the Government, but do not allow Governments to sue business for deaths from smoking, pollution or other damage that they have caused.

[Robert Courts]

We are certainly getting into the technical detail, which is exactly what we should do at this stage. The hon. Lady ignores the independent element that takes place in any such independent arbitration mechanisms in interrnational trade organisations.