Withdrawal Agreement: Legal Opinion

Seema Malhotra Excerpts

1st reading: House of Commons
Tuesday 12th March 2019 Commons Chamber

[The Attorney General]

Let me make it clear: the United Kingdom is the United Kingdom, it includes Northern Ireland and there is no circumstance in which the Government of this country, and certainly not a Conservative Government, will ever leave Northern Ireland behind, subject to the obligations under the Belfast agreement. That has been proposed, as my hon. Friend knows. It has been proposed that we should have a termination right for GB only and the Prime Minister explained why that was unacceptable.

[Seema Malhotra (Feltham and Heston) (Lab/Co-op)]

The Attorney General says that the joint instrument and the content of the unilateral declaration relating to the withdrawal agreement

“reduce the risk that the United Kingdom could be indefinitely and involuntarily”

held in the backstop in the event of bad faith, but surely that was only ever a very limited risk. Is it not true that the far greater risk of being held in the backstop indefinitely is not as a result of the failure of either party to act in good faith, but because of intractable differences? In such circumstances, is it not right that the people of Northern Ireland and the Republic of Ireland should have the confidence that measures that they can trust will be in place to prevent a hard border, and that the backstop would be exited upon a new agreement being reached? Does not that make perfect sense?

[The Attorney General]

It does make perfect sense. I have to say that I would have preferred to have seen a right of termination, mitigated and graduated, fairly balancing and apportioning risk, and only useable in a last resort, but the Union was not willing to agree to such a reasonable—and what I considered to be moderate—proposal. I agree with the hon. Lady, which is why I voted for the deal. It is sensible that that assurance can be given, and that is why the British Government have given it. I would say, though, that best endeavours is not—particularly now, with the context heightened and the benchmarks tightened—a meaningless duty, because best endeavours requires that a party should consider proposals that are contrary to its interests, and it may have to accept them. A party cannot go on refusing something that requires a reasonable adjustment in its position.

European Union (Withdrawal) Bill

Seema Malhotra Excerpts

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[Seema Malhotra (Feltham and Heston) (Lab/Co-op)]

My hon. Friend is making an excellent speech. Does he agree that the issue at hand is not whether those of us in this Chamber now might want to change the rights and protections we currently have, but the process by which those laws and rights could be changed and the ease and lack of accountability and transparency that could put them at risk in future?

[Mr Leslie]

I can certainly imagine cases where our constituents, feeling the need to assert some of those rights in the charter in future, find themselves falling foul of the provision in clause 5 that says, all of a sudden, that the charter of fundamental rights is not part of domestic law on or after exit day. They enjoyed those rights hitherto; where would that situation leave them?

The Government, when being sued by the tobacco companies which did not like plain packaging and thought it was against their rights of expression, cited the right to public health in the charter of fundamental rights and managed to defeat those tobacco companies. The charter of fundamental rights proved important not just for our constituents, but for the Government themselves in upholding what was a good piece of public policy at the time.

European Union (Withdrawal) Bill

Seema Malhotra Excerpts

Committee: 2nd sitting: House of Commons
Wednesday 15th November 2017 Commons Chamber

[Caroline Lucas]

I rise to welcome and support a number of proposals in this group, in particular new clause 2, new clause 25, the amendments on the EEA and new clause 22.

I shall be brief because many others wish to speak. First, new clause 22 seems to me to be eminently reasonable and, in a sense, asks no more from Ministers than they have already pledged verbally. Call me suspicious, but I would like to see that locked down legally as well, but it goes no further than what they have already said.

Indeed, the new clause reflects repeated statements by Ministers, not least the Secretary of State for Exiting the European Union, that the UK’s withdrawal from the EU will not lead to a weakening or a dilution of workers’ rights in particular. In October 2016, the Prime Minister herself said that

“existing workers’ legal rights will continue to be guaranteed in law”.

The same month, the Secretary of State for Exiting the European Union said this:

“To those who are trying to frighten British workers, saying ‘When we leave, employment rights will be eroded’, I say firmly and unequivocally ‘no they won’t’… this… government will not roll back those rights in the workplace.”

The Secretary of State for Environment, Food and Rural Affairs has said that he wants not just to maintain environmental laws, but to enhance them. It is puzzling why there is still resistance to translating all that rhetoric into legal certainty. That is all we seek this afternoon.

Those and other more recent statements are welcome, because in June 2016 electors were not voting to jettison hard-won rights and legal protections. On the contrary, they were assured by the leave campaign that taking back control would mean improvements to their rights and legal protections, denied them, apparently, by the evil bureaucrats of the EU. However, the Bill risks retained EU law being vulnerable to chipping away through secondary legislation. That is a real concern and those are important protections. Furthermore, if we are to have that deep and special relationship with the EU27, in particular in trade, we will have to abide by those regulations in any case, so why not lock them down with certainty here and now in this debate?

New clause 25, which was tabled by the hon. Member for Bristol East (Kerry McCarthy), again asks little of Ministers. I hope it will be accepted. It would simply ensure that the quite extraordinary delegated powers that the Bill grants be used only in pursuit of the Bill’s stated purpose—namely, to allow retained EU law to operate effectively after withdrawal.

As the Bill stands, it will allow Ministers to use those delegated powers to modify what are currently EU regulations. That simply does not provide a good enough guarantee that those delegated powers will not be used to water down EU-derived standards on key environmental safeguards—for example, on chemical and timber regulation—without proper parliamentary and public scrutiny. New clause 25 would address that weakness by establishing a new process for modifying retained EU law after Brexit—one that I believe strikes a better balance of powers—and it acknowledges that it is sometimes necessary to amend technical provisions using secondary legislation. It allows for that, but it would also ensure that more substantive modifications to retained EU law can only be made by an Act of Parliament.

I want to say a few words about the amendments on the EEA. I simply want to reinforce what other hon. Members have said—that while the EEA might not be the most ideal port for a ship seeking shelter from the worst of the Brexit storm, because by almost any standard EEA membership is clearly inferior to full membership of the EU, when the storm is bad sailors can nevertheless be glad to find shelter in any available port, and with the sand now running fast out of the article 50 hourglass, one would have thought that any strong and stable Government worthy of the name would want to keep their options open.

Membership of the EEA would at least allow the UK to retain access to the EU single market. That means that British citizens would still be able to live and work in EU member states. British businesses would have the certainty of being able to trade freely with countries in the EU single market and access that market’s more than 500 million consumers. It would mean as well that the NHS would not be facing the crisis that it is currently facing, with so many nurses and health workers now being put off from coming to work in our NHS because they are no longer welcome. It means that we would not have the crisis in agriculture, where we literally have crops rotting in the fields because we do not have workers here to actually do the work in those fields. Crucially, it would also mean that those EU citizens who have made their lives here in good faith, and who have paid their taxes and worked here alongside us as our family, our friends and so on, would not feel unwelcome in a country that has been their home, in some cases for decades and decades.

[Seema Malhotra (Feltham and Heston) (Lab/Co-op)]

rose—

[Caroline Lucas]

I feel ashamed of this country and of this Government when I see so many good people feeling so unwelcome and feeling that their only recourse is to leave this country. That is not right.

I believe that membership of the EEA is a compromise that we might look at, going forward. I commend very strongly the speech and the amendment from the hon. Member for Lewisham East (Heidi Alexander). She made the incredibly powerful point that we have had so much rhetoric about pulling together, about not dividing society, and yet EEA membership would offer a compromise that perhaps people could gather around. There was no mandate on the ballot paper on 23 June for the kind of extreme Brexit that this Government are pursuing, pushing us potentially to the very edge of that cliff and beyond. That was not on anyone’s ballot paper. There is no mandate for that. So if there is to be any seriousness about bringing people together, to try to heal the deep rifts that there now are in this country, proposals of the type set out in new clause 22 will be vital.