European Union (Withdrawal) Bill

Stephen Kerr Excerpts

2nd reading: House of Commons
Monday 11th September 2017 Commons Chamber

[Wayne David (Caerphilly) (Lab)]

Although I campaigned and argued for this country to remain a part of the European Union, I fully accept that that is not the majority view of the country. But I would argue that this is the wrong way to leave the European Union. This is not a general enabling Bill; it is a poorly thought-out, complex and undemocratic piece of legislation. One of the most fundamental problems with the Bill is that it amounts to—yes—a power grab by this Government. That power grab takes several forms, but I want to focus on just two aspects.

First, there is the widespread use of Henry VIII powers, allowing the Government effectively to bypass Parliament and change primary legislation through secondary legislation. That has, of course, happened in the past, but not on such a huge scale as is planned now. As a result of this Bill, we will see extensive use of those undemocratic powers, because some 12,000 EU regulations will be brought into UK law. Some of them will make changes for technical reasons, but, as the most recent paper from the House of Commons Library states, it is anticipated that others will enable “substantive policy changes” to be made by the Government. So changes are likely to be introduced through Committees, which is why the Government are doing their best to pack those Committees with their own MPs, against the established procedure of the House.

We are also seeing an unprecedented power grab with regard to devolution. As a Welsh Member of Parliament and a former Wales Office Minister, I have followed devolution very closely. Many of us expected, as did the devolved institutions themselves, that this Bill would make real the promises the Government set out in their White Paper.

[Stephen Kerr (Stirling) (Con)]

Will the hon. Gentleman give way?

[Wayne David]

There are many speakers, as we have heard, and I am sorry, but I would rather press on.

In the White Paper of March 2017, it was stated that there would be a significant increase in the decision-making powers of the devolved institutions. That was there in black and white. It also intimated that former EU frameworks would be subject to decisions involving the devolved Governments, but such is not the case. The Bill before us does not return powers from the EU to the devolved institutions, as promised. Instead, in devolved areas, such as agriculture and the environment, power is going from Brussels to London, bypassing and therefore undermining devolution. Moreover, this Bill in effect imposes a freeze on the legislative competences of the devolved institutions. As a report by the Welsh Assembly research department points out, the devolved institutions will not be able to modify so-called retained EU law for Wales and Scotland, but a Conservative British Government will be able to do so for England, and may even be able to do so for the devolved nations.

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[Stephen Gethins (North East Fife) (SNP)]

Today marks the 20th anniversary of the referendum on re-establishing the Scottish Parliament—not just “notionally” re-establishing it, I should point out to the hon. Member for Harwich and North Essex (Mr Jenkin). I voted in that referendum having just returned from the Erasmus programme. The re-establishment of the Scottish Parliament was backed by most of Scotland’s parties—certainly by its progressive parties. Today we are about to see the biggest devolution power grab since that re-establishment, and it that will have an impact on the devolution process the likes of which we have never seen before. As someone who returned from Erasmus to vote in the referendum 20 years ago, I have been reflecting on the impact that this process will have on opportunities for young people, among others.

The hon. Member for Richmond Park (Zac Goldsmith) rightly highlighted the benefits of European Union membership. It has benefited our rights; it has enabled us to build a broad consensus on the need to tackle environmental problems such as climate change; it has benefited universities; and it has torn down trade barriers. Tonight we will vote on a Bill that will take powers away from Holyrood and undermine the devolution process, and that is something that we cannot thole.

[Stephen Kerr]

Will the hon. Gentleman give way?

[Ross Thomson (Aberdeen South) (Con)]

Will the hon. Gentleman give way?

[Stephen Gethins]

I shall come to both hon. Members shortly—they will have ample opportunity.

The Government’s approach was rejected in June, and we should all be mindful of the fact that what has been delivered in its place is a Parliament of minorities. That is commonplace at Holyrood. It is something that we had to get used to, and it is something that we shall all have to get used to. A Parliament of minorities is clearly a challenge for the Government, but it is a challenge for the Opposition as well, because we must all show that we are willing to work in a constructive way if the Government are willing to listen. That is not easy for us. The SNP remains committed to Scotland’s membership of the European Union. I want to see Scotland as an EU member state, and I am proud that Scotland voted overwhelmingly to support that. However, given the devastating impact of the Government's lack of strategy, it is up to this Parliament, and all parliamentarians, to step up to the mark.

The mess that we are in is not entirely the Government’s fault. I think that Vote Leave bequeathed that mess by presenting a blank piece of paper, which means that it is up to us to try to fill in those many, many blanks. Having said that, the Government have had five months since they triggered article 50 and 15 months since the EU referendum. Ministers bear culpability for the present situation, but Ministers who were part of Vote Leave bear particular culpability. For instance, there is the Secretary of State’s own yardstick:

“I would expect the new Prime Minister on September 9th to immediately trigger a…round of trade deals”.

Where are they? In the face of such chaos, all Members have a responsibility—each and every one of us. We need to put our differences to one side.

There is scope to do that, as we have put together a compromise. On this anniversary of devolution, I want to pay tribute to the Labour party and Plaid Cymru, which were able to put aside their differences and to try to come up with a common position. I know it was not easy for Members of both parties to do it, but they did, and full credit to them both for doing so. The Scottish Government put together a committee of experts to come up with a compromise, and I note that in the aftermath of the referendum—here is the cue for Conservative Members—Scottish Labour and the Scottish Conservatives called for retaining membership of the single market. In fact, the Scottish Conservative leader—who knows, maybe the future Westminster Conservative leader—said:

“Retaining our place in the single market should be the overriding priority.”

I would certainly hope that Ruth Davidson’s Conservatives will do the right thing and stand by their leader. I wonder if they are Ruth Davidson’s Conservatives or Theresa May’s Conservatives when it comes to this—they are staying seated, saying nothing whatsoever.

The Bill also represents one of the biggest power grabs that we have seen. I note that one MP said—

[Stephen Kerr]

rose—

[Stephen Gethins]

Ah, there we go! I give way.

[Mr Speaker]

Order. The hon. Gentleman is in a state of uncontrolled excitement, but he is auditioning to be a statesman; he must calm himself.

[Stephen Kerr]

The hon. Gentleman has mentioned several times now that this Bill represents a power grab; that is the new in-fashion statement from the Scottish National party. Can the hon. Gentleman name one power that the UK Government will grab back from Holyrood?

[Stephen Gethins]

I will give the hon. Gentleman his due: at least he had the courage of his convictions and stood up; the rest of them took their time over that. On fishing, on agriculture and on energy, we were told that these powers would come back to the Scottish Parliament without touching the sides, so where are the full powers over fishing, agriculture, energy and education? They are being retained by this Parliament on the 20th anniversary of the devolution process.

To return to my point, the MP I mentioned earlier said this:

“The balance of advantage between Parliament and Government is so weighted in favour of the Government that it is inimical to the proper working of our parliamentary democracy.”—[Official Report, 22 June 1999; Vol. 333, c. 930.]

That warning about powers such as Henry VIII powers was made in 1999 by the Secretary of State himself when he tried to introduce a Bill to deal with them.

This is a hung Parliament. The Scottish Parliament was designed for a new kind of politics, and one thing I will say to Conservative Members—I hope they are listening—is that even when the SNP was elected with 47 seats out of 129, we had ground-breaking, world-leading action on climate change, free education was reintroduced, and the number of police officers was increased. Action can be taken in a Parliament of minorities, but for that to happen, Members must be willing to listen to those on the other side of the House.

Excellent points have been made from the Conservative and Labour Benches, as well as by other colleagues. The challenge is whether this Government are prepared to listen. What we have seen so far is a Tory Government who want to turn their back on the EU and happily talk about a no-deal situation that would be devastating for jobs and the economy. This approach of ourselves alone against the world is not one that I can possibly endorse, and nor can my colleagues. We must reject this Bill. A new approach is needed, and that is why we will be voting against the Bill tonight.

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[Richard Drax]

I will not give way again, because many other Members wish to speak. However, I shall address that point later, because I served on the European Scrutiny Committee in the last Parliament.

From listening to the speeches, one would think that this country, Great Britain, was incapable of passing laws. What on earth is wrong with this great place, which we are selected to represent—our country? We are talking about one of the biggest honours: becoming an MP and representing our constituents. We used to make all the rules and regulations that our constituents lived under. Hon. Members may recall that we joined the EU for free trade, which everyone said was a jolly good idea—and it was. Unfortunately, the bureaucrats have taken over the running of that good idea, and if we can go back to that idea by leaving the EU, as I hope we can, I believe our constituents will be forever grateful.

This Bill is not a power grab, as the Opposition claim. The way they are going to vote is a smokescreen; it is a politically cynical move to destabilise this Government—that is all it is. It is an opportunity for the Leader of the Opposition, God forbid, to become Prime Minister of this country. What we are doing here is repatriating thousands of regulations into our jurisdiction, thousands of which have been imposed on us over the past 40 years. We can review them; that is our job—we review legislation. If we do not like it, we will get rid of it. If we have a majority, we will vote it out. If we like it, we will keep it. If we are not sure, we will amend it. What might be right for a European country—for the French or the Germans—might not be right for us.

Because of the sheer number of regulations, some will have to be delegated. Everyone is making a noise about delegated legislation, but both main parties have used delegated legislation for years—it is part of how this place works. Some Government Members have suggested some sort of triage process to assess what should be dealt with through delegated legislation and what should be taken on the Floor of the House. If I recall correctly, my right hon. Friend the Secretary of State listened to them and said that he would think about that. I am sure that those who want there to be a decision-making process for what should and should not be delegated will have a say in Committee.

The hon. Member for North Antrim (Ian Paisley) made a point about the silence that has reigned for so many years. I served on the European Scrutiny Committee under the excellent chairmanship of my hon. Friend the Member for Stone (Sir William Cash), who is sitting just in front of me. For years—for many more years than me and probably most people in this House—he has scrutinised EU legislation. In the short time for which I served on the Committee, we tried to get important issues—not least the future of our ports—debated on the Floor of the House, so that we could all listen to the sense, or lack thereof, of EU legislation and decide whether what was appropriate for Europe was appropriate for us. Those debates never happened.

[Stephen Kerr]

And we could not change it.

[Richard Drax]

As my hon. Friend says, even if those debates had happened, the legislation could not have been changed. Where were all these loud voices? Where were you all over the past 40 years? Why did you not question what was being imposed on our country and our constituents? Where were you?

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[Stuart C. McDonald]

I do not necessarily agree with the right hon. Gentleman, nor do I have faith that even the affirmative procedure is necessarily a proper safeguard against wide-ranging powers such as those in the Bill. Such power does not belong in a Henry VIII clause at all.

Limits could be placed on the powers in the Bill at later stages. We could perhaps restrict which matters could be dealt with by delegated legislation, list further protected enactments, and define key terms such as “deficiencies”, or introduce a test of necessity, rather than rely on subjective ministerial judgment, and thereby improve the Bill. If it is to proceed, that must happen. But none of that would resolve the fundamental challenge of how we parliamentarians are supposed to play a substantial role in the whole process, beyond the usual inadequate procedures for scrutinising secondary legislation. Other Members have gallantly suggested alternative mechanisms—for example, some sort of filter—but to my mind they have been far too modest. At the very least, we need a procedure that allows us to table amendments to regulations, rather than meekly accepting take-it-or-leave-it, all-or-nothing proposals from the Government.

We are more than 13 months on from the referendum. Transposing EU law into UK law was always going to be a monumental task. The Government’s assuming that we could just use the same old procedures we always use was either negligence, complacency, arrogance, or a mixture of all three. Such procedures are not fit for the normal business of this House, never mind for the vital task that lies ahead.

With respect to the devolved competencies, the Bill rides roughshod over the devolution settlements. Can you imagine, Mr Speaker, the federal Governments of Germany or the USA—or of lots of other federal places—attempting such a unilateral power grab? It would be greeted with outrage, and rightly so.

[Stephen Kerr]

I shall try again with the question I asked earlier. The hon. Gentleman talks about power grabs and the trashing of the devolution settlement, but can he tell me one power that the UK Government intend to grab back from Holyrood?

[Stuart C. McDonald]

Had the hon. Gentleman listened to my hon. Friend the Member for North East Fife (Stephen Gethins) earlier, he would have heard him mention agriculture, the environment and fishing. If he bears with me, I shall come to that point in just a moment.

The Länder and the individual states of the United States are lucky that they are protected by a proper constitution; it seems that all our devolved nations are protected by is the Government’s mood and political pressure. It is a salient reminder that power devolved is power retained and of just how fragile the devolution settlement is.

On the point made by the hon. Member for Stirling (Stephen Kerr), can we imagine the response if the Bill sought to do to this Parliament what it would do to the devolved legislatures? If the Bill’s purpose was to take back control, but then to prevent Parliament from changing retained EU law, it would have been laughed at and considered utterly unacceptable, but that is exactly what it will do to the devolved legislatures. It is completely unacceptable for the exact same reasons. We have heard some patronising arguments from Government Members, one of whom essentially argued that the UK Government need to take control of the powers for now to protect citizens in the devolved countries from their democratically elected Governments. We are more than capable of handling powers; we have done so since devolution, and we will continue to do so after Brexit.

If anything good has come of the Bill, it is its highlighting of the significant failings in the House’s procedures for the scrutiny of the ever-increasing number of Executive powers to which successive Governments have helped themselves. It also highlights the utterly centralised nature of the British constitution, which is as far away from a mature federal model as it could ever be. There are almost no proper constraints to rein in Executive power, or proper legal safeguards for important rights. The idea that the Bill is part of a restoration of Parliamentary sovereignty is nonsense; it will simply mean that parliamentary sovereignty and, more significantly, Executive power are more unfettered than ever.

Perhaps membership of the EU, and the protections that that has provided through the charter of fundamental rights and other provisions, has led to complacency about the dangers of untrammelled parliamentary sovereignty, and the problems of the elective dictatorship once identified by Lord Hailsham. Now that the EU’s safety nets are being removed, all of us who believe in constitutionalism need to look again at where the UK goes from here. This Bill is certainly not the answer, which is why I will vote against Second Reading tonight.

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[Hannah Bardell]

I share my hon. Friend’s concerns, and I am sure she shares those of the insurance sector, which cites aviation as a relevant example because national airlines based in any EU country require a range of specialist insurance cover. Most of that is a mandatory requirement for operation. The UK insurance market is the only location with the specialist aviation insurance knowledge and financial capacity to provide the full coverage for all the risks faced.

[Stephen Kerr]

Will the hon. Lady give way?

[Hannah Bardell]

I will not at the moment. I am going to make some progress.

To put it simply, planes will not be able to take off, as my hon. Friend the Member for Central Ayrshire (Dr Whitford) identified.

There is concern that the UK Government might use clause 8 to trigger article 127 of the European economic area agreement, immediately ripping away the UK’s access to the free movement of goods, people, services and capital. As the days pass, the fear and concern heighten. Frances O’Grady, the general secretary of the TUC, said this morning—she was adding to the list of Brexit superlatives—that the Conservative Government were headed towards a “kamikaze Brexit”.

In a single act of complete recklessness, the Government are pressing ahead with this deficient Bill without carrying out a proper economic analysis of any economy across the UK. The people in businesses I have spoken to do not want to fall off a cliff before new trade deals can be agreed. They cannot afford to crash out of the EU or to fall back on WTO rules, which the CBI president said would open a “Pandora’s box”.

The gap between any transitional period and the start of any trade deal is also a real threat. Agriculture, fisheries and the environment are just some of the areas devolved to Scotland that will be affected by the Bill. The Fraser of Allander Institute has shown that a hard Brexit could cost Scotland’s economy and its GDP up to £10 billion and 80,000 jobs. That is almost the entire number of people in my constituency. The Scottish Government did try to work for a compromise, presenting their proposals in “Scotland’s Place in Europe”, but they did not even receive a decent response.

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[Stephen Kerr]

Will the hon. Lady give way?

[Luke Graham]

Will the hon. Lady give way?

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[Stephen Kerr (Stirling) (Con)]

I rise with enthusiasm to support the main principles of the Bill and its Second Reading. We have heard many excellent contributions and I would like to express my appreciation for the quality of this debate. To me, the debate comes down to something rather straightforward. When this House passed the Bill to hold an in/out referendum on the United Kingdom’s continued membership of the European Union, it entered a compact with the British people to act on their direct instruction. This Second Reading debate is about main principles. The first principle of the European Union (Withdrawal) Bill is to repeal the European Communities Act 1972 on the day we leave the European Union. A vote against that principle will be an attempt to set aside the result of the referendum and a base disrespect to the British people—it is as uncomplicated as that.

The second principle of the Bill is to convert EU law, taken as a whole, into UK law so that we can have a stable and functioning statute book on the day we leave the European Union. A vote against that principle would create the potential for instability and uncertainty, because we would have a broken statute book on the day we leave the European Union. It is no more complicated than that. This is a grand moment for British pragmatism.

Sincerely held concerns have been and are being raised about the Bill’s so-called Henry VIII powers. A number of right hon. and hon. Members on both sides of the House have made positive suggestions that deserve the careful consideration of those on the Government Front Bench—[Interruption.] Thanks for the prompt. There is clearly a willingness on the part of the Government both to listen and to accommodate, and I fully expect them to be as good as their word. That said, I find it strange that some of those who object so strenuously to the so-called Henry VIII powers and the Bill seem not to have had many concerns over the past 44 years when Governments have been expected to enact a steady stream of EU laws and regulations that neither the Government nor Parliament have had the power to change or the capacity to scrutinise properly.

[Bill Grant (Ayr, Carrick and Cumnock) (Con)]

Does my hon. Friend agree that as a nation we need to learn to respect the outcomes of referendums? We have had two major referendums in the UK, but we seem repeatedly to fail to respect the will of the British people.

[Stephen Kerr]

My hon. Friend’s excellent point brings me neatly to the nationalists, who have called the Bill a power grab and a threat to the devolution settlement. It is no such thing. They cannot name one power that the UK Government intend to grab back from Holyrood.

[Joanna Cherry (Edinburgh South West) (SNP)]

Does the hon. Gentleman agree with the Law Society of Scotland, a non-partisan body, that the Bill would remove legislative competence from the Scottish Parliament, including in areas of law not reserved to the UK, such as agriculture and fisheries? Has he read the Bill?

[Stephen Kerr]

The answer to the first question is no. I remind the hon. and learned lady, however, that it was a Conservative Government who passed new powers to the Scottish Government, and there is no evidence, other than in the feverish imagination of SNP Members, that the UK Government intend to grab back any devolved powers.

To the contrary: I have lost count of the number of times Ministers have said in this House and elsewhere that they anticipate that the Scottish Parliament will have new enhanced powers because of Brexit. The irony is that the SNP, if it ever got its way, would hand those very powers back to Brussels. The SNP Government have spent the past 10 years power grabbing for themselves from local government and local communities, and their incessant centralising of power has undermined the very fabric of local democracy in Scotland. Just a few days ago, Scottish Ministers, against all advice, including from their own reporter, ran roughshod over local democracy in Stirling by foisting a huge commercial development on scenic greenbelt at Park of Keir. Many of my constituents—

[Brendan O'Hara (Argyll and Bute) (SNP)]

On a point of order, Mr Speaker.

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[Mr Speaker]

If the speech had been disorderly, I would have ruled as such, but it wasn’t, so I didn’t.

[Stephen Kerr]

Thank you, Mr Speaker.

Many of my constituents in Dunblane and Bridge of Allan are rightly angry at this power grab by the SNP. That is one of many such examples.

I have no hesitation in telling the Government, whom I am proud to support, that I want them to get on with Brexit. It will bring opportunities, and we must make the best of them. I want to get on with those free-trade deals across the world. We already know that customers globally have an insatiable appetite for Scottish food and drink, including Scottish salmon, and since Stirling is now the UK’s centre of excellence and innovation in salmon, and finfish aquaculture in general, I declare a vested interest. Those in the House who gleefully seize on every statement by EU negotiators, at the supposed expense of Her Majesty’s Ministers, should consider how their antics appear to the voting public. We must work together across parties to get the best deal for the British people, and I have the utmost faith and confidence in my right hon. Friend the Secretary of State for Exiting the European Union and his ministerial team to do just that. We must be, among ourselves, united.

The Bill represents the best kind of pragmatism, for which this country is rightly renowned around the world. It will efficiently allow us to leave the European Union, it will allow our devolved Administrations to make more decisions about the lives and livelihoods of the people whom they serve, and it will allow us to have a statute book that functions on the day we leave the European Union. I celebrate its British pragmatism.