European Union (Withdrawal) Bill

Stephen Kinnock Excerpts

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

[Mary Creagh]

It is a pleasure to follow the right hon. and learned Member for Beaconsfield (Mr Grieve). If he is concerned about tertiary legislation, I invite him to co-sign my amendment 291, which will be taken on day 8 of our consideration of this Bill, and which would require all tertiary legislation made under powers under these regulations to be subject to parliamentary control. That would go some way towards addressing some of the concerns he and I have about tertiary legislation.

I rise to speak to new clause 62 and amendment 138, tabled in my name. This Bill poses a severe risk that environmental legislation on exit day becomes zombie legislation, no longer updated or enforced, and vulnerable to being watered down or dropped entirely. Amendment 138 seeks to prevent environmental protections from being watered down, and new clause 62 would require the Government to come up with a solution to the governance gap.

That is important because 80% of the UK’s environmental protections come from EU law. This Bill will have to deal with swathes of environmental law, and we do not want it tampered or fiddled about with in any way if we leave. Those laws have brought us a very long way since the 1970s when we were seen as the dirty man of Europe, but they are neither self-executing nor self-policing. They set air quality targets, climate change targets and water quality standards, and the rules and regulations affect almost every aspect of our waste management industry. It was interesting that the Prime Minister said yesterday that waste, water, food and agriculture would all be subject to continued regulatory alignment; we wait to see what that means in practice. Those laws mean we bathe on cleaner beaches, drive more fuel-efficient cars and can hold the Government to account on air pollution.

We are part of a global gold standard in chemicals regulation, and the chemicals and pharmaceuticals industry yesterday wrote to the Environment Secretary stating in terms that it wishes to stay in the registration, evaluation and authorisation of chemicals regulation. On a previous day’s consideration of this Bill, the Minister of State, Ministry of Justice, told me in response to my concerns on REACH that it is directly applicable in UK law, but he fundamentally misunderstands what REACH does. It creates a body—the European Chemicals Agency—which regulates, evaluates, authorises and enforces that law. We do not have such a body in UK law, so although that directive may be directly applicable and be valid in UK law, there is no body to carry out its functions. As we go through this Bill we are going to find that that is the case. There may be a body that the Minister thinks he can dump those functions on through a duplication of legislation, but that is not a perfect or elegant solution. Today, we are a world leader in environmental standards, and, crucially, we are able to hold this Government to account. That certainly focuses Ministers’ minds when there is the threat of infringement or infraction proceedings.

Leaving the EU means we lose those governance, enforcement and accountability mechanisms, and new clause 62 requires the Government to ensure that environmental law is enforced after exit day. That is why my Committee called for a new environmental protection Act. The Government have said that that will not be necessary, so since they have refused to introduce such an Act, amendment 138 aims to preserve retained EU environmental law. Much of this environmental law will need technical corrections, and the unpicking of 40 years of legal ties to EU institutions and agencies is the biggest administrative and constitutional task that this country has faced since world war two.

[Stephen Kinnock (Aberavon) (Lab)]

Is my hon. Friend aware of the fact that at least half of the approximately 42 EU agencies that exist offer no provision for the participation of third countries? Could she perhaps ask Members on the other Benches how the Government can possibly build the necessary capacity when we are unable to participate in those agencies?

[Mary Creagh]

My hon. Friend raises an excellent point, which has also been raised by the European Chemicals Agency. Those registrations, which will have cost our businesses £250 million, will fall on exit day. I know that that particular agency does allow third countries to participate, but when I tabled a parliamentary question to various Departments about the work they had done to prepare to duplicate the work of those regulatory agencies, I got a series of flannel-type replies that essentially said, “We don’t know how much it is going to cost, we don’t know what the system is going to be and we haven’t really started the work.” That is simply not good enough. Businesses and citizens deserve certainty. We are going to need between 800 and 1,000 statutory instruments before exit day to correct retained law. In a letter to the Environment, Food and Rural Affairs Committee in September, the Environment Secretary said that there were 850 pieces of legislation relating to his Department that would no longer work after exit day unless they were corrected. That is an absolutely huge body of law.

Clause 7, as we have heard, gives Ministers powers to make regulations that they believe are appropriate—again, I dispute what “appropriate” might be—to

“prevent, remedy or mitigate…any failure of EU retained law to operate effectively”—

again, how do we know what the full scope of this clause will cover? This is a huge amount of law—

“or…any other deficiency in retained EU law”

where this arises from exit. The Bill’s explanatory notes contain a worrying and rather brazen example of what this means. They use the example of the UK having to obtain an opinion from the EU Commission, stating:

“In this instance the power to correct the law would allow the Government to amend UK domestic legislation to either replace the reference to the Commission with a UK body”—

should the Government decide to have one—

“or remove this requirement completely.”

Once we start to see the removal of reporting and enforcement requirements, we get to the heart of the Bill, which is that Brexit is a deregulators’ charter. This is about taking rights away and about ensuring that environmental and social rights are lost to our citizens. I do not want to see Ministers making those sweeping changes with no scrutiny in this place.

In part 1 of schedule 7, paragraph 3(2) waives the affirmative procedure for regulations where the Minister is of the opinion that

“by reason of urgency, it is necessary to make the regulations without a draft being so laid and approved.”

That basically says that the Government will not consult this House if the matter is urgent. They have said that they will accept the amendments tabled by the Procedure Committee Chair, the hon. Member for Broxbourne (Mr Walker), but those provisions could be waived if a Minister was of the opinion that the regulations were urgent. The Government want to pass 800 to 1,000 statutory instruments, 850 of which are in the environment sphere. Can anyone tell me which of those regulations will not be urgent, given that they need to be passed before exit day?

--- Later in debate ---

[Stephen Kinnock]

I rise to speak to new clause 37, tabled in my name and the names of many hon. Friends.

Before I turn specifically to the detail of the new clause, I would like to summarise the powers and functions of regulatory institutions. In essence, they are: monitoring and measuring compliance with legal requirements; reviewing and reporting on compliance with legal requirements; enforcing legal requirements; setting standards or targets; co-ordinating action; and publicising information. Thus we see that regulatory institutions and agencies play an absolutely central role in the proper functioning of our economy and, indeed, of our broader society. They are, as it were, the traffic lights that keep the traffic flowing around our economy, and the shields that protect our fundamental rights and freedoms.

I turn my attention to the impact that Brexit will have on the vital role that EU agencies currently play. We all know that the transition phase will, in essence, be a carbon copy of the status quo minus our representation in the EU institutions. The problem is that when we leave the EU on 29 March 2019, we will become a third country, and we will be leaving the 52 agencies that currently carry out the tasks and functions that I listed. According to research commissioned by the House of Commons Library, 16 of those 52 agencies have no provision whatever for third country participation and a further 12 allow only for observer or a vague co-operation status. That means that 28 out of the 52 EU agencies have no provision for third country participation. We are therefore facing, at the time of leaving, a yawning and very dangerous governance gap.

The purpose of my new clause is to force the Government to commit to institutional parity, meaning that all powers and functions currently relating to any freedom, right or protection that was exercised by EU agencies should continue to be carried out by an EU agency, be carried out by an appropriate existing or newly established entity or be carried out by an appropriate international entity.

Without UK institutions to take on the job of EU agencies, we will see fundamental rights, protections and regulations being removed by the back door having been rendered unenforceable. This Bill will then not be worth the paper it is written on unless it is backed up by regulatory agencies. The risks are daunting. How will we reassure businesses that wish to invest in our country if we cannot guarantee a predictable and consistent regulatory regime? How will we reassure consumers that our food hygiene standards are up to international standards? How we will we reassure people that our nuclear safety, chemicals or medicines are up to international and European standards? We can do this only if we have strong regulatory agencies to implement the terms of our legislation. I therefore commend new clause 37 to the Committee.

[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.