European Union (Withdrawal) Bill

Stephen Doughty Excerpts

Committee: 6th sitting: House of Commons
Tuesday 12th December 2017 Commons Chamber

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

My hon. Friend mentions the single market; I wonder whether he noted the research published today by the Rand Corporation in the United States that made it clear that any kind of fantasy deal with the United States while President Trump is in charge would do nothing for us compared with remaining in the single market and the customs union.

[Mr Leslie]

Yes; I think many hon. Members are under the illusion that free-trade agreements are an okay substitute for the single market arrangements that we now have. Our economy is 80% service sector. We take for granted the frictionless movement of goods, parts and components, and amendment 124 would—

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[Matthew Pennycook]

Absolutely. My hon. Friend spoke powerfully about this matter on Second Reading, and he is right in saying that the scope of the powers in this Bill is not narrow, as some Conservative Members have argued; these powers are extraordinarily wide and unprecedented in the post-war period. I struggle to find other examples of Acts that have drawn their powers this wide.

Secondly, and perhaps more concerning, clause 7(1) will allow Ministers to make such regulations as they consider appropriate for the purpose of preventing, remedying or mitigating

“(a) any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law”

arising from exit. What is meant by the entirely subjective phrase “operate effectively” is left entirely open, a point rightly highlighted by amendment 15, which stands in the name of the right hon. and learned Member for Beaconsfield (Mr Grieve) and others. What is meant by deficiencies is more precisely defined, but clause 7(2) still only provides a non-exhaustive set of examples of what is considered to fall within this category. As such, it leaves Ministers with considerable latitude in determining when retained EU law contains a deficiency. The explanatory notes to the Bill seek to reassure us that the power could not be used by a Minister just because he or she considered the law in question to be flawed prior to exit. Today’s Minister will no doubt repeat that it is not the Government’s intention to use this Bill to make major policy changes or to establish new frameworks in the UK beyond those which are necessary to ensure we have a functioning statute book on exit day. But in the absence of a definitive criteria of what constitutes a deficiency, or, indeed, restrictions on how deficiencies might be addressed in the Bill, there is still scope for the Executive to enact substantive changes to policies in areas that were previously underpinned by EU law, whether by lowering permissible air quality levels or modifying crucial employment protections.

[Stephen Doughty]

I thank my hon. Friend for his excellent forensic examination of what is at fault in the Bill. Does he agree that there is deep suspicion and mistrust because we have heard speeches from Members who might seek to form the Government at some point—particularly the hon. Member for North East Somerset (Mr Rees-Mogg) and others—who have made it clear that they want a deregulated race-to-the-bottom economy and society? It is all very well to have assurances from the current team of Ministers, but what if others were in their place?

[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.

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[Matthew Pennycook]

I absolutely agree. The devolved Administrations, as my hon. Friend has reminded me, agree that they want to take a UK-wide approach to this issue, but it would have to be an agreement.

Let me turn now to those 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 set out in schedule 7(6). It is clear that the vast majority of hon. Members and the Government have accepted that the House’s current procedures for scrutinising negative and affirmative instruments are not acceptable. The hundreds of SIs that will flow from clauses 7 to 9 and 17 need something different. It is encouraging that Ministers have listened and have made it very clear that they intend to accept the amendments in the name of the hon. Member for Broxbourne (Mr Walker) and other members of the Procedure Committee. We welcome those amendments and the establishment, as our new clause 1 proposes, of a parliamentary Committee to sift or triage regulations, and we support their incorporation in the Bill. Frankly, it is better than nothing, but it is the minimum of what might be expected, and we do not believe that they go far enough.

Amendments 397 and 398 propose that every SI made only via the negative procedure will be sent to the new Commons committee for consideration, with the committee determining within a 10-day window which ones would be required to be made under the affirmative procedure. That is an improvement on the arrangements proposed in this Bill as it stands, because it provides for discretion beyond the very narrow category of regulations attracting the affirmative procedure currently set out in schedule 7, and it will ensure that Ministers will not have unfettered discretion to decide whether the affirmative or negative procedure should apply in cases where an exercise of powers does not fall within one of the categories set out in the Bill.

Ministers must justify why the new committee will not be tasked with looking at SIs made under the affirmative procedure, or with examining the justification for using the SI in question to remedy a particular deficiency in EU law. Importantly, they must justify why, in urgent cases, which I know is a phrase that is undefined, Ministers can simply bypass the committee. Lots of these matters will be dealt with under Standing Orders, but it is right that we press for some clarity today. I hope that the Minister will provide further clarification on the composition of the new committee, in particular whether, as proposed in our new clause 1, the chair will be elected by the whole House and will be, and will be seen to be, independent of the Government. Ministers must further explain why they do not believe that the new committee should have the powers to recommend revisions to individual SIs.

Amendments 397 and 398—here I stand to be corrected by the hon. Member for Broxbourne or others on the Committee—make no such provision for revision. In this respect, they differ in a crucial aspect from the proposals set out in the Procedure Committee’s interim report of 6 November, which, while not providing for a formal mechanism for revising secondary legislation, did suggest a process by which a request could be made to Ministers to revoke and remake any particular SI underpinned by the scrutiny reserve. Without provision for this House to request, in certain limited cases, that a particular SI be revised, hon. Members will face a Hobson’s choice—take it or leave it with regard to regulations that may entail highly significant policy choices and have potentially serious or far-reaching implications, with “leave it” in these circumstances meaning a hole in the statute book.

Our amendments 33 to 41 make it clear that any new sifting committee that is established must be given the means not only to determine the level of parliamentary scrutiny that each SI is accorded in proportion to their significance and policy implications, but to make recommendations as to how particular SIs might be improved by revision—if necessary if only by means of the committee in question recommending that an instrument either be withdrawn and re-laid in a more acceptable form or, if a negative, be revoked and remade.

I wish to touch on one last issue: when it comes to the effective scrutiny of secondary legislation, it is crucial, as my hon. Friend the Member for Rhondda (Chris Bryant) has argued, that long-standing parliamentary conventions are adhered to. Even after the process of sifting undertaken by the new committee, SIs subject to the negative procedure can only be annulled if the Government of the day themselves allow time for the House to debate the matter and to have a vote on it. Yet, as my hon. Friend pointed out today and on Second Reading, the Government have consistently refused in recent years to honour that convention, just as they no longer honour the convention that Opposition day motions are voted on. We have a very recent example that illustrates how this Government have used delegated powers not just to avoid parliamentary scrutiny, but to legislate in open defiance of the will of the House in relation to the matter of tuition fees. The original Act in question with regard to that matter allowed any statutory instrument raising the tuition fee limit to be annulled by either House, and assurances were given by Ministers in both the previous Labour Government and the coalition Government that any such SI would be taken on the Floor of the House.

By contrast, this Government prevented any vote whatever on the matter, and then refused to accept the vote of the House against the regulations. When they tabled the regulations the day before the 2016 Christmas recess, the Opposition prayed against them on the first sitting day this year, but despite the conventions of the House, the Government dragged their feet for months until eventually conceding the point and scheduling a debate on 18 April. Then Parliament was dissolved for the election.

After the election, the Government stalled and it was left to my hon. Friend the Member for Ashton-under-Lyne (Angela Rayner) to secure parliamentary time using Standing Order No. 24. Eventually, we had to provide Opposition time on an Opposition motion to revoke the regulations, which the House agreed, only for the Government to refuse to accept the result, after telling Government Members to boycott the vote. Therefore, when Ministers say that Parliament still has a meaningful say on delegated legislation, there is a catch—and it is a Catch-22. They can refuse time for a vote within the 40 days, then say that it is too late for any vote to count once the deadline has passed.

This Bill includes powers that not only open up the very real possibility of substantive changes being made to policies in areas that were previously underpinned by EU law, but to amend primary legislation. If the Government are willing to ignore so flagrantly the conventions of this House when it comes to an issue as controversial and as important as university tuition fees, why on earth should this House assume that those conventions will be honoured when it comes to Brexit legislation?

[Stephen Doughty]

My hon. Friend has made an absolutely essential point. Fundamentally, does he agree that if this process is to be about taking back control, it must be about Parliament and the representatives of the people taking back control, not a Government, and certainly not a minority Government, taking back excessive powers?

[Matthew Pennycook]

I could not agree more with my hon. Friend. That is why strengthened scrutiny procedures for approving secondary legislation made under this Bill are so important, and it is also why long-standing conventions must be honoured, so that in the rare cases where the Committee might recommend an SI be subject to the negative procedure but the Opposition disagrees, there is a chance to bring the matter before Committee.

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[Chris Stephens]

I wish to speak in favour of amendment 73, which was spoken to by my hon. Friend the Member for Edinburgh East (Tommy Sheppard). The amendment asks that workers’ rights be agreed by the Joint Ministerial Committee and seeks to clarify the role of the committee in this regard. There are three reasons why that should be done. First, there is divergence. Employment law is totally devolved to Northern Ireland; it is partially devolved to Wales, where the Welsh Assembly took the decision—rightly, my view—to amend the worst aspects of the anti-Trade Union Act; but, for reasons beyond my understanding, employment law is not yet devolved to Scotland. Secondly, there is a real concern about the impact on women workers, who would be very vulnerable to roll-back given the history of delivery on these measures, especially as most have been informed by EU directives and law. Thirdly, of course, there is a trust issue. Who would trust a Conservative Government on their commitments to workers’ rights?

The amendment is designed to explore the extent of the Government’s respect for the Joint Ministerial Committee’s role, and the extent to which they intend to use their powers. Either they respect joint working and consultation to achieve the best solutions in a post-Brexit world—in that case, the amendment should pose no challenges—or there is an agenda of bypassing the devolved Administrations at every turn, and shifting power and decision making back to Westminster.

The Henry VIII powers are a constitutional affront, given the secretive nature of their use. Ministers could use them to bypass Parliament, the judiciary and the devolved Administrations, or quietly to reshape the law without scrutiny. When it comes to employment law, I contend that the Government might wish discreetly to reverse particular Supreme Court decisions on, for example, the civil service compensation scheme, workplace consultations and industrial tribunal fees. In the Unison case, the Supreme Court held that the fees order was unlawful as a matter of not only domestic law, but EU law. Given all the cases in which the Government of the day have suffered a reversal of a decision to which they held so strongly that they were prepared to go to the Supreme Court, and in which EU law formed part of the judgment against them, it is not fanciful to think that they might want revisit the issues, especially when it comes to employment law and workers’ rights.

When Brexit fails to deliver the promised economic bonanza, it is logical to assume that a free market, anti-worker party will look to erode workers’ rights to boost profits. I commend to the Committee the TUC paper “Women workers’ rights and the risks of Brexit”. It outlines clearly and in detail the specific threat that Brexit poses to women workers. Legislation and protections have evolved under the protection of EU law, so we are right to be concerned that removing that umbrella will mean that there are stormy days ahead for women workers.

It is not so much that the rights concerning equal pay, maternity and sex discrimination will disappear overnight, but I share the concerns that hard-fought rights will be eroded, particularly if that can be done under the cover of statutory instrument and ministerial diktat. We saw that with the anti-Trade Union Act 2016—not just in the attitudes of Conservative Members in the Chamber, but in the approach to delegated legislation.

[Stephen Doughty]

The point that the hon. Gentleman makes is absolutely right. Is it not also the case that the Government have tried to undermine the Welsh Government’s efforts to protect trade unions by trying to strike down parts of that Act?

[Chris Stephens]

I thank the hon. Gentleman for making that point for me. He is absolutely correct that that is what the Government are trying to do. Statements have been made in the House of Lords, including by the former chair of the European Conservatives and Reformists group in the European Parliament, who has previously called for the scrapping of

“the working time directive, the agency workers’ directive, the pregnant workers’ directive and all the other barriers to actually employing people.”

That was said by Lord Callanan, now a Minister of State at the Department for Exiting the European Union—and the Conservatives ask us to trust them on workers’ rights! I would not trust them enough to send them out for the rolls in the morning. The Tories cannot be trusted on workers’ rights; if they were truly interested in workers’ rights, they would accept the amendment.