European Union (Withdrawal) Bill

Stephen Kinnock Excerpts

Committee: 8th sitting: House of Commons
Wednesday 20th December 2017 Commons Chamber

[Anna Soubry]

I think that that is the unequivocal statement I am looking for. If it is, I am extremely grateful to the Minister for clearing that up. It is indeed a great Christmas present.

It is obvious that the two main parties in this place remain deeply divided, just as the country does. The irony of the situation will not be lost on future generations as they read Hansard. We have a considerable number of hon. and right hon. Members sitting on the Opposition Benches who completely agree with a considerable number of hon. and right hon. Members sitting on these Benches, yet we are prevented from building consensus and finding agreement because of the divisions within the two parties and, it has to be said, some intransigence on our two Front Benches. It is not for me to comment on the state of the Labour party, however; I will leave others to do that.

My right hon. and learned Friend the Member for Rushcliffe has already identified the fact that, 18 months on, we still do not know what the Government see as their endgame. Our own Cabinet remains totally divided on this great issue—the greatest issue that we have had to wrestle with for decades. I say to my honourable and dear colleagues that there are some on these Benches who are entrenched in their ideological view about the European Union and will not move from it. They are a small group—they are the minority—but I feel as though they are running our country, and that cannot be right. Then there is another group, a big wide group of Conservative colleagues. Some of them are reluctant remainers, some are leavers-lite, and as they hear our debates and listen to the businesses that come to speak to them in their constituency offices, they are feeling uneasy and queasy. I do not say that they have to agree with me—of course they do not—but I asked them to listen to the arguments that are being advanced by those of us who speak on behalf of our constituents, notably businesses, about a deal.

We are not going to get a bespoke deal from the European Union—well, not unless we pay shed loads of money for access to this or that market—but there is something available to us. It is EFTA. It is the customs union. It is sitting there as a package. We can take it and seize it, and British business would be delighted if we did so. And then it would be done. The British people would say, “Thank God! They’ve got on and delivered Brexit”, and all would be well. We need to get on with it, so that we can then address the great domestic issues. I beg my hon. Friends to google EFTA and the customs union over the Christmas period. I urge them to understand them and to look at what Norway gets. Norway is able to determine its own agricultural and fisheries policies, for example. My hon. Friends need to know and understand these things. Then we need to come back in the new year and make a fresh start on forming that consensus that our constituents are dying to hear about, because they are fed up to the back teeth with what is going on.

[Stephen Kinnock (Aberavon) (Lab)]

It is important to note the difference between EFTA and the customs union, which is mainly that EFTA countries are able to strike trade deals with third countries. For example, Iceland has a bilateral trade deal with China.

[Anna Soubry]

I am grateful to the hon. Gentleman. That is the sort of detail we need. We have to understand all the different arrangements that are there that will work and suit our country, and I beg right hon. and hon. Members to look at them. The solutions are there. We are not going to get a bespoke deal, but arrangements are there on the shelf. We can grasp them, sort out Brexit, move on and do the right thing by our country and our constituents.

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[Joanna Cherry]

I rise to speak to new clause 44, which is in my name and those of a number of Opposition Members, and was moved by my hon. Friend the Member for North East Fife (Stephen Gethins).

This very important new clause would require the Government, a year after the Bill is passed, to prepare an independent evaluation of the Act in respect of the health and social care sector across the UK, after consulting with the devolved Governments. As well as cross-party support on the Opposition Benches—I am very grateful for the support of the Labour party and others—it has the support of 57 organisations that work in the sector. It was inspired by the Camphill movement, which will be familiar to many Members. It has a base in my constituency, in Tiphereth in the Pentland hills. The movement has been inspiring people to realise the potential of those with learning and other disabilities for many years. Camphill has many bases across Scotland. I very much hope Scottish Conservative MPs who have a base in their constituency will support the new clause, because it is not about stopping Brexit or confounding the Bill but about measuring the impact of the Act on employment and funding in the health and social care sector.

I am delighted that so many organisations across the United Kingdom have lent their support to new clause 44. I say to those on the Government Front Bench that tonight there are many people across the UK watching from the 57 organisations in the health and social care sector. They were watching earlier at Prime Minister’s questions when the Prime Minister told us how much healthcare matters to her and how dear the NHS is to her. I ask them to remember that many, many EU nationals work in the health and social care sector across the UK, not just in organisations such as Camphill. I would also say that EU funding has been very important to those organisations.

I ask the Government to set party politics aside for once and support the new clause. I ask them to look at the list of 57 organisations who support it—many Government Members will have them in their constituencies—because they want to know about the impact of the Act on the health and social care sector. All the new clause asks the Government to do is commission an independent evaluation of the Act’s impact on the sector.

There are many political things I could say about the Bill, but I am not going to say them this evening. With an eye on the time, I am going to appeal to the Government’s decency—for the record, I say to the many organisations watching tonight that I am sorry I have so little time—and ask them to throw party politics aside for once. Give us something out of the Bill and support the new clause. It has cross-party support on the Opposition Benches and support across the nations of these islands.

[Stephen Kinnock]

I raise to support amendment 43. Hon. Members will know that this year marks the 150th anniversary of Walter Bagehot’s “The English Constitution”. At the heart of Bagehot’s masterpiece is the definition of the expressive function of this place, meaning that it is our duty as parliamentarians to express the mind of the people on all matters that come before it.

Amendments 381 and 400 are a betrayal of the expressive function of this House. They are a silent coup d’état masquerading as a technical necessity, so before we go through the Division Lobby this evening, let us reflect on what Bagehot would think of them, and of the Government’s behaviour throughout this process. The fact is that he would be appalled. He would be appalled at the attempt to sideline Parliament on the most important issue that has faced our country since the second world war, and he would be appalled by the direct assault on the expressive function of this place.

There is, however, a broader point that goes to the heart of our political culture. Bagehot always believed, and I have always agreed with him, that Britain is a land of common sense, compromise and realism, but the Brexit referendum has replaced moderation with division and realism with dogma. I say that the wild men of Brexit have been allowed to drive this debate for too long. I say that amendment 43 represents an opportunity for us in this House this evening to take back control and to return moderation, compromise, realism and pragmatism to their rightful place at the heart of our political system and culture.

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?

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[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.

Leaving the EU: Sectoral Impact Assessments

Stephen Kinnock Excerpts

Tuesday 28th November 2017 Commons Chamber

[Mr Walker]

My hon. Friend, like many of my hon. Friends, raises an interesting point. It is something that we will look into. What we have done is to ensure that the Select Committee has information on the sectoral analyses that the Government have conducted, which is an important step taken in response to a motion of the House.

[Stephen Kinnock (Aberavon) (Lab)]

In his letter of 2 November, my right hon. Friend the Member for Leeds Central (Hilary Benn), the Chair of the Select Committee, wrote:

“once the material has been provided to the committee, I would be very happy to discuss with you any particular concerns you may have about publication of parts of the material so that the committee can take these into account in making its decision on release.”

On 27 November, the Secretary of State wrote:

“we have received no assurances from the committee regarding how any information passed will be used.”

Does the Minister agree that that letter is a blatant misrepresentation of what was agreed and that the Secretary of State should withdraw that remark and apologise for it to my right hon. Friend?

[Mr Walker]

No, I do not.

EU Exit Negotiations

Stephen Kinnock Excerpts

Monday 13th November 2017 Commons Chamber

[Mr Davis]

My right hon. Friend is quite right. It is a foolish proposition that is only deployed by the Opposition.

[Stephen Kinnock (Aberavon) (Lab)]

I am sure that the Secretary of State will wish to join me in congratulating his friends the Foreign Secretary and the Secretary of State for Environment, Food and Rural Affairs on the rekindling of their bromance. I wonder, though, whether they understand that the European Parliament has stated clearly that a transition deal

“can only happen on the basis of the existing European Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures”.

Does the Secretary of State believe that Conservative Members understand that that will be the basis of the transitional arrangements?

[Mr Davis]

First, let me say to the hon. Gentleman a milder version of what I said to our Scottish nationalist colleague, the hon. and learned Member for Edinburgh South West (Joanna Cherry): he should not take just what the European Parliament says as the end of the exercise. However, he is of course right in one respect: a transitional arrangement will look very like what we have now, but it will not be membership, and it will allow us freedoms that we do not have now. It is critical to remember that as well.

European Economic Area: UK Membership

Stephen Kinnock Excerpts

Monday 6th November 2017 Commons Chamber

[Stephen Kinnock (Aberavon) (Lab)]

I beg to move,

That this House believes that for the UK to withdraw from the European Economic Area (EEA) it will have to trigger Article 127 of the EEA Agreement; calls on the Government to provide time for a debate and decision on a substantive motion on the UK’s continued membership of the EEA; and further calls on the Government to undertake to abide by the outcome of that decision.

I thank the Backbench Business Committee for granting today’s debate, and I thank right hon. and hon. Members on both sides of the House for supporting the application for it. In particular, I thank my hon. Friend the Member for Lewisham East (Heidi Alexander) and the right hon. Member for Broxtowe (Anna Soubry) for co-sponsoring the motion.

If the referendum result was indeed a vote to take back control, this House must surely have its say on that critical issue. I rise to commend the motion to the House, because all options both for the transition and for the comprehensive trade and partnership deals must be on the table. I first want to set the debate in context by outlining what the European economic area is and what it is not. I will then explain how EEA membership can square the circle between market access, sovereignty and control. I will also illustrate how EEA membership offers a sensible and workable transition out of the European Union—a bridge, rather than the potentially catastrophic cliff edge of exiting on World Trade Organisation terms.

First, what is the EEA? Simply put, it is an internal market between the EU28 and Norway, Iceland and Liechtenstein. It was set up in 1993 to allow the participation of non-EU states in the single market. However, the EEA internal market excludes single market features such as fisheries and agriculture, and it does not entail membership of the customs union. That means that EEA members are able to negotiate trade deals with third countries, either bilaterally or through the European Free Trade Association. That is how Iceland became the first European country to strike a bilateral trade deal with China in 2011.

It is through EFTA membership, in conjunction with the EEA, that unfettered trade in goods is achieved. EEA-EFTA membership could therefore provide a solid basis on which to sustain frictionless trade between the UK and the Republic of Ireland post-Brexit.

[Sir Edward Leigh (Gainsborough) (Con)]

The hon. Gentleman just talked about a “catastrophic cliff edge”. Clearly, it is in the interests of our country that we have a free trade deal, but will he put that in context? Exports in 2016 accounted for 28% of our GDP and EU exports for 12.6%. Last month, the World Bank published a study showing that in the event of no deal and WTO rules, British trade with the EU might fall by 2%. That is 2% of 12.6%, or a quarter of 1% of our overall GDP. Therefore, when he talks about a catastrophic cliff edge, let him put it in context.

[Stephen Kinnock]

I thank the hon. Gentleman for his intervention. May I suggest that he takes a trip to the port of Dover? The Brexit Select Committee, of which I have the honour of being a member, visited it recently and we were told that an additional two minutes of processing time on the 10,000 heavy goods vehicles that go through the port would result in a 13 mile tailback. A WTO Brexit, we were told, would add a lot more than two minutes. We therefore have to look at this debate in the context of the institutional capacity of our country to cope with a WTO Brexit, which is critical.

[Mr Jim Cunningham (Coventry South) (Lab)]

The west midlands relies a lot on exports to the EU. We have Jaguar Land Rover and a lot of other companies. If we do not get it right on this issue, it will affect them pretty badly.

[Stephen Kinnock]

I agree absolutely with my hon. Friend. On the automotive sector, we know that a WTO-based Brexit would add 10% to the cost of every car we export to the EU. What is more, given the complex, integrated supply chains the automotive industry relies on, there would be tariff and non-tariff barriers on every component that crosses the border. The result would indeed be catastrophic.

[Robert Neill (Bromley and Chislehurst) (Con)]

rose—

[Stephen Timms (East Ham) (Lab)]

rose—

[Stephen Kinnock]

I will take one more intervention from my right hon. Friend, but I will take an intervention from the hon. Member for Bromley and Chislehurst (Robert Neill) later.

[Stephen Timms]

Has my hon. Friend seen the recent forecast that a WTO-based Brexit would cost the UK economy 75,000 jobs in the financial services sector alone? Is he not absolutely right to talk about the grave dangers that that would pose to the British economy?

[Stephen Kinnock]

I agree that the financial services sector is critical to this debate, because passporting is required. There would be no passporting arrangements in a WTO deal, so the impact would be catastrophic. We must remember that the financial services sector is not just about the City of London; it supports 1 million jobs across the entire United Kingdom—in Edinburgh, Leeds and so on.

[Dr Sarah Wollaston (Totnes) (Con)]

Does the hon. Gentleman agree that this is not simply about lorries queuing? For example, it is also about shell fisheries. There would be lobsters sitting for days in tanks that would be unsellable at the other end.

[Stephen Kinnock]

Indeed, during our trip to Dover, we were informed about the impact in terms of rotting food and vegetables on the border. There are practical, tangible impacts that we must bear in mind when it comes to a no-deal Brexit.

The head of the EFTA court, Carl Baudenbacher, has been a vocal advocate of the UK’s joining EFTA permanently or at least as a short-term docking measure —an idea that the president of the European Court of Justice, Koen Lenaerts, similarly advocated over the summer. EEA-EFTA membership is emphatically not the same as membership of the single market or the customs union. The EEA is an internal market that is conjoined with most of the EU’s single market, but it is nevertheless a stand-alone structure with its own legal, regulatory, governance and institutional frameworks.

[Sir William Cash (Stone) (Con)]

Does the hon. Gentleman accept that according to the president of the EFTA court, to whom he has just referred, that court follows the judgments of the European Court of Justice almost exclusively?

[Stephen Kinnock]

The EFTA court exists as a sovereign body. It of course takes some of its guidance from the European Court of Justice. Nevertheless, were the UK to have judges on the EFTA court body, it would clearly have extra clout and the ability to exercise its sovereign right to interpret the guidelines that come from the ECJ in such a way that suits the membership of EEA and EFTA.

[Robert Neill]

Is not the critical issue that many courts may choose to follow decisions of those with similar jurisdictions? Our courts have historically done that, but with the decisions of common law courts. The EFTA court, however, is institutionally separate from the ECJ and therefore not subject to its direct jurisdiction—is that not the important distinction?

[Stephen Kinnock]

The hon. Gentleman hits the nail on the head. I would add that EU member states are required to refer rulings to the ECJ, whereas EEA-EFTA states are not required to refer rulings to the EFTA court. This is a vital distinction, because it has significant implications for the functioning of the two markets. The EU single market is predicated on the treaty of the European Union, with its commitment to ever closer union. The EEA, however, is governed by the EEA agreement, article 1 of which states that the aim of the EEA is to:

“promote a continuous and balanced strengthening of trade and economic relations between the Contracting Parties”.

The fundamental differences between the founding mission of the EU and the founding mission of the EEA mean that for the EU the four freedoms are indivisible, whereas for the EEA they are negotiable. This, in turn, means that the EEA membership would allow a post-Brexit Britain to square the circle between market access and sovereignty when it comes to that most thorny of issues, the free movement of labour.

[Michael Tomlinson (Mid Dorset and North Poole) (Con)]

I always enjoy listening to the hon. Gentleman’s arguments and I have the pleasure of serving on the European Scrutiny Committee with him. Is not one difficulty with his argument that, under this model, we would have to follow all the rules—the rules of the single market and, as he says, the rules of freedom of movement—without having a say or an input into how those rules are made? Is there not a risk that that will not fulfil the wish of the British people?

[Stephen Kinnock]

I thank the hon. Gentleman for his intervention, but I am afraid he has misinterpreted how the EEA functions. The EEA joint committee sits with Commission officials, and officials of the European Parliament and the European Council in comitology, which provides the EEA joint committee with the ability to shape EU legislation, regulations and directives. I will come on to this later in my speech, but the idea that the EEA means rule-taker rather than rule-maker is incorrect.

As an EEA member, the UK could unilaterally suspend the free movement of labour by triggering article 112 of the EEA agreement, which allows for an emergency brake on any of the four freedoms on the basis of economic, environmental or societal difficulties. There is legal precedent for this. Upon entering the EEA in 1993, Liechtenstein triggered articles 112 and 113 of the EEA agreement, thus suspending the free movement of labour and ultimately agreeing a protocol that enabled the introduction of a quota-based immigration system.

The manner and form of economic or societal difficulties facing the UK would of course be different, but the fact is that the legal precedent has been set so there is no reason why the UK should not be allowed to follow suit. Having pulled that emergency brake, we would then, as per article 113, enter into deliberations with other contracting parties through the EEA joint committee to negotiate a lasting solution. In the case of Liechtenstein, this took the form of industry-by-industry quotas.

[Mr David Jones (Clwyd West) (Con)]

Is the hon. Gentleman really comparing Liechtenstein, a small mountain state in central Europe, which, frankly, could get full up rather quickly, with the United Kingdom, which is a much larger state and in which there is already a significant problem of migration?

[Stephen Kinnock]

It is patently ridiculous to make that sort of comparison. This is not about comparisons, but legal precedent. I would also argue that the United Kingdom has significantly more political and diplomatic clout than such a state, so the logic of the right hon. Gentleman’s argument does not follow.

[James Cartlidge (South Suffolk) (Con)]

The hon. Gentleman is making a very strong case—I was basically going to say the same thing—but if we are to draw a comparison with Liechtenstein, surely it is this: if such a tiny country could achieve what it did, we must have a realistic chance of doing the same.

[Stephen Kinnock]

The hon. Gentleman has hit the nail on the head, and I have nothing to add; he is absolutely right.

Liechtenstein is not the only legal precedent. Article 112 safeguard measures were also invoked in 1992 by no fewer than four of the then seven EFTA members—Austria, Iceland, Switzerland and Liechtenstein—which all cited the need to protect real estate, capital and labour markets. To recap: the four freedoms operate in an instrumental, as opposed to a fundamental, manner within the EEA, meaning that EEA membership offers a unique opportunity to combine market access, frictionless trade and reformed free movement of labour.

[Geraint Davies (Swansea West) (Lab/Co-op)]

Will my hon. Friend clarify something? Am I not right in saying that, currently under EU law, some restrictions that could be imposed are not imposed—namely, if someone has not worked for three months, they can be excluded from a country? Thousands of people are thrown out of other countries in the EU, but Britain simply chooses not to do so.

[Stephen Kinnock]

I think my hon. Friend’s point touches on what sort of reforms to the free movement of labour we think we need. Opinion is divided. In terms of the upstream reform, the argument is in favour of a quota-based system; downstream reform would be based on registration, but perhaps that is for another debate. My point is that EEA membership enables a lot more flexibility over both an emergency brake and the use of industry-by-industry quotas.

I turn now to the vexed question of ECJ jurisdiction. Here the position is relatively simple, as EEA-EFTA members are not subject to ECJ jurisdiction. The EEA is administered by the EFTA arbitration court and the EEA joint committee, and disputes are managed by the EFTA surveillance authority. These bodies adjudicate only on matters relating to the EEA internal market and any violations of its principles and have far less clout than the ECJ. Moreover, while EU member states’ courts must refer legal issues to the ECJ, EEA states are not obliged to refer them to the EFTA court.

The EEA model is sometimes criticised because EEA members are cast as rule-takers as opposed to rule-makers, but that criticism does not stand up to scrutiny. EEA members have the right to participate in the drawing up of EU legislation by the EU Commission, and the EEA joint committee determines which EU laws and directives are deemed relevant for the EEA and whether any adaptation is necessary, so EEA membership would in fact provide the UK with a seat at the table when EU regulations and directives are being shaped.

Clearly EEA membership is one step removed from the heart of decision making in Brussels, but the reality of the referendum result is that our influence in Brussels and across the European capitals has, and will inevitably be, diminished. The only valid question now is how to maximise democratic control and influence while minimising economic damage. I contend that an EEA-EFTA-based transition deal would clearly achieve those ends. The stakes are high.

[Stephen Timms]

I am listening with great interest to my hon. Friend’s argument. Will he confirm whether I have understood him correctly? Would the way forward he is advocating require the UK to rejoin EFTA? Is that his proposition?

[Stephen Kinnock]

There are a variety of views on this. Carl Baudenbacher, the head of the EFTA arbitration court, has said that he would favour a docking system and an interim arrangement that puts British judges on the EFTA arbitration court in preparation for finalising a deal—in a sense, a bridging into EFTA. I would advocate joining EFTA as part of moving into the EEA.

[Mr David Jones]

Will the hon. Gentleman give way?

[Stephen Kinnock]

I will make some progress.

Carolyn Fairbairn of the CBI said only yesterday:

“We remain extremely worried and the clock carries on ticking down”.

As a result, she said, more

“and more firms are triggering their contingency plans to move jobs or change investment plans.”

Reality has finally bitten, even in the minds of some of the most deluded Brexiteers, that it was always a fantasy to think it would be possible to complete the divorce and the final trade deals in parallel. A solid cross-party consensus on the need for a transition deal has therefore emerged, as was made clear in the Prime Minister’s Florence speech. All parties in the House also agree that we must leave the EU by walking over a bridge rather than by jumping off a cliff, and the EU has welcomed the fact that the Government have finally started to show some signs that they understand the realpolitik of the negotiations.

Given that an off-the-shelf transition deal is inevitable, it is clear to me that EEA-EFTA is the only viable option. The EEA and EFTA are well-established and well-understood arrangements that offer the clarity, stability and predictability that the British economy so desperately needs in these turbulent times. Transferring from the EU to the EEA and EFTA would allow us to balance sovereignty and market access. Crucially, such a transition deal would buy us time for negotiate the final comprehensive trade and strategic partnership deal that will shape the terms of the UK’s relationship with the EU for decades to come, while also allowing us to enter into independent trade negotiations with third countries because we would be outside the customs union.

[Gareth Thomas (Harrow West) (Lab/Co-op)]

Is my hon. Friend’s point not all the more pertinent and timely in the light of the visit of the United States trade representative, Wilbur Ross? He certainly seems to be implying that a US-UK trade deal would take significantly longer than the 19 or 24 months to which the Government are clearly hoping to secure agreement for a transition deal.

[Stephen Kinnock]

I think that there is unanimity, almost, on the issue of the timing. I would add that the benefit of EFTA is that it is not a customs union but a free trade area, thus enabling us to connect with the vital single EU market but also to strike third-country deals with countries including, potentially, the United States.

[John Stevenson (Carlisle) (Con)]

Does the hon. Gentleman agree that if the United Kingdom became part of EFTA, that could in many respects turbocharge EFTA and make it a far more appealing organisation in respect of trade deals?

[Stephen Kinnock]

That is an excellent point. I think that the current EFTA members recognise the clout that they would potentially have through the addition of a 60-million-person consumer market to their current market, which is a great deal smaller. As we know, global trade negotiations are all about leverage and clout.

[Mr Mark Harper (Forest of Dean) (Con)]

Will the hon. Gentleman give way?

[Stephen Kinnock]

I will make some progress.

It is clear that the issues we are debating today go to the very heart of what the Brexit process is about. This debate is about the future of the people whom we in the House were elected to represent. It is about their jobs, their livelihoods and their communities, and it is about the definition of our national interest and of our country’s place in the world. Yet the Government claim that a separate debate and decision on membership of the EEA are not necessary. Not necessary? How can it possibly be argued that matters of such deep political, economic and constitutional significance should not be the subject of proper deliberation? How can it possibly be argued that the House should be sidelined and neutered, simply because the Government are terrified of proper scrutiny? Is that really what people voted for when they voted to “take back control”?

While the political case for a separate debate and decision on our membership of the EEA is unanswerable, the legal position is hotly contested. The Government argue that on exiting the EU we will automatically exit the EEA, pointing to article 26 of the EEA agreement, which states that EEA members must be EU or EFTA members as well. However, it can equally be contended that the UK is an independent contracting party to the EEA agreement, being one of the founding sovereign state signatories to that agreement, and that exit from the EEA therefore requires the triggering of article 127. I am not alone in that view, which is shared by eminent academics such as Professor George Yarrow and QCs such as Charles Marquand.

It should also be noted that a conclusive decision in this House that UK membership of the EEA is not wholly contingent upon EU membership would greatly strengthen our negotiating hand, as the EU would be unable to force the UK out of the single market. Some will argue that this question should be settled in court, but a case in February of this year was dismissed as premature, as the Government had yet to state their position on the EEA membership, and it was still possible at that time for the triggering of article 127 to be wrapped up with the triggering of article 50.

On this issue, as with so much where the Government and Brexit are concerned, we now find ourselves in a hiatus—drifting, rudderless, floating around in a mist of ambiguity and indecision. It is therefore more important than ever that this House shows some leadership. It is on the Floor of this place, not in the courtroom, that we should be deciding these matters. It is we who are sovereign.

On 23 June 2016, the British people voted to leave the treaty on European Union; the EEA agreement was not on the ballot paper. There is no referendum mandate for leaving the EEA; and if it had been the intention of this House that leaving the EEA be bundled in with leaving the EU, why did this House not put that in the original statute, either in the European Union Referendum Act 2015 or the article 50 Act?

The people have not spoken, nor have they had the opportunity to speak on EEA membership. It is therefore the job of Parliament to speak, and to debate the matter on their behalf. Moreover, the Miller case established legal and political precedent for parliamentary authorisation of withdrawal from any international treaty that confers rights and obligations that have been transferred into UK law. The EEA agreement clearly confers such treaty rights into domestic law, so if we take the conclusions of the Miller case to their logical conclusion, Parliament must have the right to debate and decide.

I am truly proud of the fact that I campaigned passionately for remain, and I will believe until my dying day that the vote to leave the EU was the greatest act of national collective harm in modern political history. However, I am also a democrat, and fully accept and respect the result of the referendum. The question therefore is not whether we must leave the EU, but how we should leave. That, fundamentally, is what this debate is about.

As elected representatives of the people, and as patriots, our moral duty is twofold: we must act to ensure that the Government negotiate a deal that both protects jobs, livelihoods and the national interest, and that respects and enables greater sovereignty and control. Those who are driven by nationalism, separatism, dogma and ideology are not capable of securing such a deal, for their only goal is to burn every bridge they see and return to a bygone age of splendid isolation, and those who are driven by a desire to rerun the referendum are similarly incapable of moving to the centre ground, which is the only place where pragmatic solutions can be found. For we know that compromise is a sign of strength, not weakness. We know that a country can either have frictionless trade or independence, but it cannot have both. We know that “Rule Britannia” rhetoric provides the sugar rush of an easy soundbite, but it does not put bread on the table.

All of which means that we must have a Brexit deal that puts jobs first. We must have a Brexit deal that keeps our economy as close as possible to the 500 million consumers that are right on our doorstep. And we must have a Brexit deal that holds our deeply divided country together, by delivering to the greatest extent possible on the perfectly legitimate need to reform free movement of labour.

A transition deal that is based on EEA and EFTA membership will deliver a Brexit that protects jobs, livelihoods and the national interest. That is why it is vital that this House is given the opportunity to debate, and decide on, whether article 127 of the EEA agreement should be triggered.

I commend this motion to the House.

[Several hon. Members rose—]

--- Later in debate ---

[Stephen Kinnock]

This has been an excellent debate and I thank Members from all parts of the House for their contributions, although the Minister’s winding-up speech was deeply disappointing.

We live in a deeply divided country: city versus town, young versus old, graduate versus non-graduate. The referendum did not create those divides, but it certainly gave them voice. An EEA-based Brexit is one that could reunite our divided country: it is a Brexit that provides the basis for avoiding a hard Irish border; it is a Brexit that offers the opportunity for reform of free movement of labour; it is a Brexit that maximises access to the single market; it is a Brexit that removes us from ECJ jurisdiction; it is a Brexit that enables us to strike independent trade deals with third countries; and it is a Brexit that provides the certainty and predictability that our country so desperately needs in these turbulent times.

The clock is ticking and the stakes could not be higher. There is no mandate for leaving the European economic area. It was not on the ballot paper in June 2016 and the result of the 8 June election this year was the final nail in the coffin, surely, for a hard Brexit. A debate and decision on a substantive motion on EEA membership are therefore urgent and desperately needed. I commend the motion to the House.

Question put and agreed to.

Resolved,

That this House believes that for the UK to withdraw from the European Economic Area (EEA) it will have to trigger Article 127 of the EEA Agreement; calls on the Government to provide time for a debate and decision on a substantive motion on the UK’s continued membership of the EEA; and further calls on the Government to undertake to abide by the outcome of that decision.

[Sir William Cash (Stone) (Con)]

On a point of order, Madam Deputy Speaker. My right hon. Friend the Member for Broxtowe (Anna Soubry), I think somewhat inadvertently, made a reference to my interest in EFTA and the model of jurisdiction. What I actually said on 4 July 2017 was by reference to the jurisdiction of the European Court and the EFTA court, exploring whether we could find a viable and proper way to achieve jurisdiction in relation to the issues under consideration. I think my right hon. Friend and I agree that I was perhaps slightly misinterpreted, but I do not want to press the point any more than that. I just want to get it on the record that I was not referring to EFTA as such, but merely to the jurisdictional opportunities it might offer.

Exiting the EU: Sectoral Impact Assessments

Stephen Kinnock Excerpts

Wednesday 1st November 2017 Commons Chamber

[Stephen Kinnock (Aberavon) (Lab)]

I rise to urge Members on both sides of the House to support the motion. I do so for the simple reason that, without publication, it is impossible for this House to do its job, which is to hold the Government to account. We must have a full, frank and informed debate about what Brexit means, and particularly about what a no-deal Brexit would mean for our society, for our economy and for jobs, trade and living standards. The fact is that this House and the British people cannot have that debate without access to the key information.

We face a productivity crisis, a weakened pound, creeping inflation, higher input costs and the slowest GDP growth in Europe—all challenges that would be deeply and dramatically compounded by a no-deal Brexit. No deal would mean customs chaos. Adding just an extra two minutes to customs proceedings at Dover would mean a 17-mile queue from Dover almost back to Ashford. No deal would mean airlines were not sure whether their planes would be able to take off post Brexit. No deal would mean thousands of citizens and businesses left in limbo—maybe temporarily, maybe not—when it was realised that many of their products were no longer eligible for sale across the EU. So let us hope that the Government will now drop their dangerous and vacuous no-deal bluff. The Government contend that to maximise leverage in the negotiations we must make it clear that we are prepared for and willing to accept a no-deal scenario. Taking this logic at face value, surely, then, the more bullish we look and the better prepared we appear to be to manage the new tariffs and customs duties at Dover or at the airport, the greater our leverage would be.

If the impact assessments were positive, they would not only have been published—their findings would be screamed from the rooftops. That is why the failure to publish makes it crystal clear that the no-deal rhetoric is a bluff—a bluff that weakens us and undermines our credibility in the negotiations. It is yet another example of the Brexiteer tail wagging the Tory dog; yet another example of the national interest playing second fiddle to the internal factional interests of the Conservative party; and yet another example of putting party before country, where the Prime Minister has put the placation of her own Back Benchers ahead of the interests of our country. I ask right hon. and hon. Members in all parts of the House to put country first and to support this motion tonight.

Leaving the EU: Parliamentary Vote

Stephen Kinnock Excerpts

Thursday 26th October 2017 Commons Chamber

[Mr Davis]

As the Chairman of the Select Committee said, there are three components to this, but they are not unrelated, with article 50 itself taking into account the framework of the future relationship. We intend that they are broadly agreed at the same time and that they are conditional upon one another. That is because it would have a material impact on the negotiation to separate them completely. That is why we will bring the whole thing to the House. That was the undertaking given. Indeed, that was what was asked for during the passage of the article 50 Bill. With regard to the future relationship, of course, as the Prime Minister said in Florence, article 218 says that that agreement cannot be signed until we are a third country, in effect. It is also the case that there could well be more than one treaty, for reasons of interest and benefit to ourselves. The House will therefore have multiple occasions to look at that separately from the overall decision. That, I think, is in the interests of democracy.

[Stephen Kinnock (Aberavon) (Lab)]

The issue that we are debating today goes to the heart of the trust and confidence that the British people should have in our parliamentary democracy. The sad reality is that ministerial assurances are no longer good enough. The Secretary of State has said that he will not sign somebody else’s amendment, so why does he not table his own amendment to the withdrawal Bill to give this House and the British people the clarity and coherence that is so desperately needed?

[Mr Davis]

I say two things to the hon. Gentleman. He was in the Committee yesterday and he saw that I was answering questions as straightforwardly and factually as is possible. What I was describing were items of fact, not promises. His own Front-Bench colleague, my opposite number, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), said yesterday: “I don’t doubt assurances which are given at the Dispatch Box.” I think that is the proper approach to this.

Oral Answers to Questions

Stephen Kinnock Excerpts

Thursday 7th September 2017 Commons Chamber

The Secretary of State was asked—

[Stephen Kinnock (Aberavon) (Lab)]

1. What discussions he has had with Cabinet colleagues on plans for the House to vote on continued UK membership of the EEA.

[The Secretary of State for Exiting the European Union (Mr David Davis)]

The United Kingdom will no longer participate in the EEA agreement once we leave the European Union. The United Kingdom is a party to the EEA agreement in its capacity as an EU member state, so on exit day the EEA agreement will cease to operate in respect of the UK. It will no longer have any practical relevance to the United Kingdom. We are considering what steps, if any, we might need to take to confirm formally our withdrawal from the EEA agreement as a matter of international law.

[Stephen Kinnock]

I thank the Secretary of State for his answer, but I am afraid that article 127 of the EEA agreement, to which the United Kingdom has been a signatory since 1993, clearly states that any country wishing to leave the European economic area must give formal notice of at least one year. Will the Secretary of State therefore please confirm that such notice would have to be given to leave the EEA and that, given the fundamental constitutional, political, legal and economic importance of such a decision, the decision to leave the EEA would be subject to a debate and a vote?

[Mr Davis]

There is actually agreement that when the UK ceases to be a member of the EU, the EEA agreement will no longer operate in respect of the United Kingdom. As such, the Government’s legal position is clear: article 127 does not need to be triggered for the agreement to cease to have effect, but we are looking at it just to make sure, for clarity purposes, that we meet its requirements.

EU Exit Negotiations

Stephen Kinnock Excerpts

Tuesday 5th September 2017 Commons Chamber

[Mr Davis]

My hon. Friend is right that the mandate structure is rigid; it does make it difficult for Mr Barnier and his team to be as flexible as they might want to be. It will be the point at which the Council starts to take a steering role in this that indicates a change in speed. That may well be October, but it may well be dictated by other events—as my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) said earlier, the German election will have an impact, and other political issues in Europe will have an impact. And the process will go at varying speeds. As I have said from the beginning, this is going to be a turbulent process: there will be times when there are ripples, there will be times when it is smooth and there will be times when it is very stormy. We must be ready for that, because this is going to be a negotiation about big issues between major states, and these things are never serene.

[Stephen Kinnock (Aberavon) (Lab)]

The Secretary of State will have noted that the United Kingdom registered the lowest rate of economic growth in the entire European Union in the first quarter of this year. Does he think that the chaotic and shambolic way these negotiations are going may have contributed to that level of growth?

[Mr Davis]

I am lost for words as to where to start on the logical impossibilities. First, I do not recognise the hon. Gentleman’s economic numbers. We have a country that has had sharp increases in exports and sharp increases in manufacturing. Vast numbers of good things are happening on the economic front, including the highest employment ever and the lowest unemployment for 42 years, so I simply do not recognise his rather interesting barb.

European Union (Notification of Withdrawal) Bill

Stephen Kinnock Excerpts

Ping Pong: House of Commons
Monday 13th March 2017 Commons Chamber

[Mr Davis]

That point brings me to subsection (4), so let me deal with that in a little more detail. This new clause, effectively, seeks to prohibit the Prime Minister from walking away from negotiations, even if she thinks the European Union is offering her a bad or very bad deal. As I will get on to, the impact of this is unclear, but even the intent goes far beyond what we have offered or could accept. The Government will be undertaking these negotiations and must have the freedom to walk away from a deal that sets out to punish the UK for a decision to leave the EU, as some in Europe have suggested.

Of course, we are seeking a mutually beneficial new relationship, which we believe can and will work for everyone, but tying the Government’s hands in this way could be the worst way of trying to achieve that deal. And let us not forget: in December, this House passed a motion that nothing should be done to undermine the negotiating position of the Government.

[Stephen Kinnock (Aberavon) (Lab)]

The Minister is asking us to take him at his word—on trust. Given the record of the Conservative party recently on manifesto commitments, does the same principle of trust apply?

[Mr Davis]

I said before, and I will say it again: I take statements at this Dispatch Box as binding.

The important point here is that the idea that Parliament could force the Government to accept a bad deal will only incentivise those on the other side of the negotiating table to deliver just such a deal. As the Lords European Union Select Committee—hardly a Tory front organisation —said:

“The Government will conduct the negotiations on behalf of the United Kingdom, and, like any negotiator, it will need room to manoeuvre if it is to secure a good outcome.”