European Union (Withdrawal) Bill

Stephen Doughty Excerpts

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

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

My hon. Friend is making some very important points. I, too, support new clause 58 and the provisions in new clauses 55 and 25. New clause 58 makes a clear point about the protection of equality rights. In the light of the wonderful news that came overnight from Australia about marriage equality, does he agree that it is crucial that we send out a signal to the LGBT+ community in the United Kingdom that we respect their rights and will retain them?

[Matthew Pennycook]

I could not agree more. That is exactly what new clause 58 would do; it would provide enhanced protection for equality, rights and protections after we have left the EU.

Taken at face value, clauses 2 to 4 appear relatively straightforward. But, as many hon. Members who spoke in yesterday’s debate made clear, the Bill as drafted creates a considerable degree of ambiguity and uncertainty as to the status of retained EU law. Currently the status of rights, protections and standards underpinned by EU law is distinct.

Treaty provisions and regulations that take effect through section 2(1) of the ECA are neither primary nor secondary legislation. The principle of the supremacy of EU law and the ECA means that, in practice, they have a particular constitutional status that enables them to take priority over primary legislation enacted by Parliament. Similarly, secondary legislation made under section 2(2) of the ECA is distinct from other secondary legislation in that it could take priority over primary legislation because of the fact that it is giving effect to an EU law obligation. Primary legislation that gives effect to an EU law obligation could be amended by Parliament, but any removal of an underlying EU law could be challenged in the courts.

Post-exit, it is unclear what status—primary, secondary or something else entirely—retained EU law will have. From schedule 1, one might draw the inference that retained EU law has the characteristics of secondary, rather than primary, legislation. Yet paragraph 19 of schedule 8 provides that, for the purposes of the Human Rights Act 1998, direct EU legislation

“is to be treated as primary legislation”,

although this schedule does not cover those rights recognised and made available in domestic law after exit by means of clause 4.

Clauses 5 and 6 provide guidance as to how the courts should interpret retained EU law in the event of a conflict with an enactment passed after exit day, but it is not yet clear—as we debated at length yesterday—whether the courts will treat particular retained EU laws as constitutional legislation that is not susceptible to implied repeal.

The uncertainty that surrounds the status and interpretation of retained EU law is a real weakness of the legislation and it is crucial that it is clarified and addressed on the face of the Bill. But, irrespective of what status particular retained EU laws are eventually accorded, this new category of law—detached from the enhanced protection enjoyed as a result of being underwritten by our membership of the EU—will be vulnerable to amendment not just from the delegated powers contained in this Bill, but from subordinate legislation contained in other Acts of Parliament.

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[The Solicitor General]

In a nutshell, I would say that the right hon. Gentleman’s amendment and those associated with it are indeed unnecessary. I will set that out in more detail when I come on to address his point and those made by the hon. Member for Greenwich and Woolwich (Matthew Pennycook), who spoke to the amendments very helpfully, if I may say so with respect.

[Stephen Doughty]

The hon. and learned Gentleman knows that I respect him. If we take him and what he is saying at face value, I do not think he has a lot to fear from new clause 55, new clause 25 or the other measures being proposed as they would simply secure what he is saying. However, does he understand why many of us have suspicions when we hear speeches about a low-regulation economy from Members such as the hon. Member for North East Somerset (Mr Rees-Mogg) that are then retweeted by the Department for International Trade? That is where these deep worries are coming from.

[The Solicitor General]

I absolutely understand the concerns of hon. Members on both sides of the Committee. The Government’s policy is clear, and I shall address in further detail where the Government stand on those amendments.

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[Stephen Doughty]

On an important point of clarification, my hon. Friend has made an incredibly strong speech. Citizens have only to go through the border and see EU and EEA as separate things on border signs to know the importance of the argument that she is making. Like me, would she like to see this measure put to the House at the appropriate time in the Bill, depending on the argument that we hear from the Government and others?

[Heidi Alexander]

My hon. Friend has issued a very timely reminder to me. If it were possible, I would like that to happen.

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[Madam Deputy Speaker (Mrs Eleanor Laing)]

I thank the hon. Gentleman for raising that matter but, as he is well aware, it is not a point on which the Chair can rule as a point of order. He is clearly seeking a way of bringing the issue to the attention of the House and he has succeeded in so doing. He is well aware that, if he wants to bring a Minister to the Dispatch Box, there are correct procedures whereby he can attempt so to do.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

On a point of order, Madam Deputy Speaker. You may be aware that very important elections have taken place in Somaliland in recent days, towards which the UK has provided important support. But it has come to my attention that the Prime Minister, when answering a question in Prime Minister’s questions earlier, interchangeably used the words Somaliland and Somalia. Obviously, they are not one and the same, and I wondered how I might be able to encourage the Prime Minister just to be clear on the matter. It is of great concern to Somalilanders, and we should be celebrating the election.

[Madam Deputy Speaker (Mrs Eleanor Laing)]

I appreciate that the hon. Gentleman wishes to bring this matter to the attention of the House. It is not a point of order for the Chair, but I am quite sure that Members on the Treasury Bench have heard him.