European Union (Withdrawal) Bill

Stephen Timms Excerpts

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

[Mr Kenneth Clarke]

rose—

[Stephen Timms (East Ham) (Lab)]

rose—

[Mr Lidington]

I give way to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke).

[Mr Lidington]

I want to come on to that point later, but I first give way to the right hon. Member for East Ham (Stephen Timms).

[Stephen Timms]

I invite the Secretary of State to respond to the criticism of his party colleague, the right hon. and learned Member for Beaconsfield (Mr Grieve), who is surely absolutely right to describe this as an “appalling monstrosity” of a Bill, which the House, frankly, should throw out.

[Mr Lidington]

That is a not a verdict with which I agree. Some of the criticisms of the Bill have been exaggerated up to and beyond the point of hyperbole, and I will seek to explain why.

In concluding my comments about why the Bill is needed, I want to stress that the time available to us under the terms of article 50 is limited. We must assume that in March 2019 this country will leave the European Union. That will be the deadline, and therefore by that date we need not only to have primary legislation enacted, but to have established the new regulatory bodies. We will need to have given effect to the secondary legislation that is proposed under the defined powers laid out in the Bill.

Several right hon. and hon. Members have said, “Yes, certain rights may be being preserved, but what about the general underlying principles of EU law?” As I said earlier, when we leave, the treaties will cease to apply to this country, but under the Bill, the general principles of European law, as recognised by the Court of Justice before exit day, or as embodied in extant European legislation, will be retained in United Kingdom law for the purposes of interpreting retained EU law. Existing sources of rights and domestic rights of action will continue to operate in United Kingdom law undisturbed by the Bill. That includes rights such as the right to equal treatment and non-discrimination. Similarly, notwithstanding our exit from the EU, individuals will continue to be able to challenge secondary legislation and administrative action under our domestic law by way of well-established grounds of judicial review.

To take two important issues that have been raised, all the rights and remedies available under the working time directive or the Equality Act 2010 will remain in force, but they will be enforced through the United Kingdom courts—ultimately, our Supreme Court—rather than through the European courts.

European Union (Withdrawal) Bill

Stephen Timms Excerpts

Committee: 1st sitting: House of Commons
Tuesday 14th November 2017 Commons Chamber

[Wes Streeting]

I am grateful to the hon. Gentleman for setting out in the House today the consistent view that he has held throughout the referendum campaign and during the debates that have followed.

The Government have a fundamental problem. This is not about whether it is the will of the House that the ECJ should have jurisdiction during the transitional period. I think that most Members, whether they voted leave or remain, understand the central importance of giving business certainty right at this moment about what will happen when we leave the European Union. The Prime Minister understood that when she made her speech in Florence, in which she said that, during the transition period,

“the existing structure of EU rules and regulations”

would apply. She also said that we could agree

“to bring forward aspects of that future framework such as new dispute resolution mechanisms more quickly if this can be done smoothly.”

The implications are clear. It was the Prime Minister’s view in Florence that, to provide business with the certainty that it needs now about jobs and economic activity, we would remain in the single market and the customs union and, necessarily, under the jurisdiction of the European Court of Justice for a time-limited transition period.

[Stephen Timms (East Ham) (Lab)]

Is my hon. Friend as puzzled as I am that Ministers are unwilling to support the policy of the Prime Minister? The Prime Minister made her position very clear, when answering a question from the right hon. and learned Member for Rushcliffe (Mr Clarke), that the writ of the European Court of Justice would run during the transitional period, or at least at the start of it.

[Wes Streeting]

I am just as bewildered as my right hon. Friend. Many Members may not have seen it, but the front page of The Daily Telegraph tomorrow carries a splash entitled “The Brexit mutineers”. On that front page, Members will find people such as the right hon. Member for Broxtowe (Anna Soubry), the hon. Member for Bromley and Chislehurst (Robert Neill), the right hon. and learned Member for Rushcliffe (Mr Clarke) and other Conservative Members who have done nothing else during the course of this debate but try to get the Government to a position whereby we leave the European Union in a way that provides the most clarity, the most certainty and the most stability, which is in the interests of our economy.

Actually, as my right hon. Friend the Member for East Ham (Stephen Timms) mentioned, the real Brexit mutineers are not people such as the right hon. Member for Broxtowe because, ironically, the Members on that front page are upholding the principles of the Florence speech. The real Brexit mutineers are members of the Prime Minister’s Cabinet, and they are in the Department for Exiting the European Union and in the Foreign and Commonwealth Office. Those people are the real Brexit mutineers, and they should be explaining why they are not prepared to back the clear positon set out by their own Prime Minister.

European Union (Withdrawal) Bill

Stephen Timms Excerpts

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Mr Leslie]

My hon. Friend is correct. While we have powers on the statute and while rights accrue from case law and court conclusions, the charter of fundamental rights fills many of the gaps, particularly in certain circumstances.

[Stephen Timms (East Ham) (Lab)]

rose—

[Mr Leslie]

I will give way to my right hon. Friend in a moment, because he has a great amendment relating to data, but I want to give an example about the protection of public health. The tobacco manufacturers sought to challenge the Government’s introduction of plain packaging for cigarettes—of course the tobacco manufacturers hated the idea and wanted to stop it—and the Government, in defence of that legislation, prayed in aid of their case the charter of fundamental rights and its protections for public health. The courts therefore upheld the UK’s plain packaging arrangements and legislation on the basis of the protections of public health rights laid out in the charter. That is a very specific example of how the charter has benefited the rights and protections of our citizens in this country.

[Stephen Timms]

I thank my hon. Friend for his kind reference to my amendment 151. Going back to the case brought by the now Secretary of State for Exiting the European Union, does my hon. Friend agree that, if the Secretary of State had not been able to rely on article 8, the likelihood is that he would not have won his case and that the hon. Member for Banbury (Victoria Prentis) would have won for the Government? Does that not give the lie to the suggestion that the charter has no impact?

[Mr Leslie]

My right hon. Friend is absolutely right. If the hon. Member for Banbury (Victoria Prentis) had won her case, would she be here today? Perhaps she would be higher on the judicial ladder.

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[Dominic Raab]

I thank my hon. Friend; she has made her point in a very careful way. I suggest that that is something for the passage of the Data Protection Bill in due course, if she feels there are gaps in it, and if, after having looked at the memorandum we are publishing, she is not persuaded that we will be reflecting in UK law after exit all the rights.

[Stephen Timms]

I am grateful to the Minister for addressing my amendment. Does he accept that it is essential that we avoid a declaration from the European Commission at some point in the future that data protection arrangements in the UK are not adequate, and we must therefore secure an adequacy determination? Does he also accept that not having article 8 somewhere on the UK statute book is an invitation to those elsewhere to find against us when that crunch decision comes?

[Dominic Raab]

The right hon. Gentleman is absolutely right that we need to be very careful to navigate our post-Brexit period in a way that minimises litigation. I cannot see that such litigation would be good for the UK and its taxpayers, and it is not good for sustaining a healthy relationship with our EU partners.

We do, of course, have article 8 in the ECHR, which is directly incorporated via the Human Rights Act, but, as I have said, if the right hon. Gentleman feels that any elements of it are not properly transposed into UK law when we publish the memorandum, the correct place for that to be considered will be the Data Protection Bill. The wider point is that the removal of the charter from UK law will not affect—

[Stephen Timms]

rose—

[Dominic Raab]

I am going to make some progress, because I have been speaking for over half an hour and the Solicitor General will want to speak again to address schedule 1.

The substantive rights that individuals already benefit from in the UK when their data is processed will be retained under this Bill. As I have pointed out, the charter is not the source of rights contained within it; it was intended only to catalogue those that existed in EU law at that moment in time.

Finally, I want to address the late new clauses tabled: new clause 78, tabled by the right hon. Member for Carshalton and Wallington (Tom Brake), and new clause 79. On the impact our departure from the EU might have on equalities legislation, I again reaffirm the commitment I made on day one in Committee to my right hon. Friend the Member for Basingstoke (Mrs Miller), the Chair of the Women and Equalities Committee, when we discussed this issue at some length. I understand the intention behind this amendment and can reassure the right hon. Gentleman that there will be no reduction in the substantive equalities protections when we leave the EU. Equally, the right hon. Gentleman’s amendment presents some very real practical difficulties, not least his attempt effectively to copy and paste the procedural model used in the Human Rights Act and then put it into this Bill for the equalities purposes.

The Human Rights Act assesses compatibility according to an international instrument, the ECHR, which is not the same. There is not an equivalent that applies to the Equality Act, but I am more than happy to reaffirm the commitment I made to my right hon. Friend the Chair of the Select Committee that the Government will bring forward an amendment before Report stage that will require Ministers to make a statement before this House in the presentation of any Brexit-related primary or secondary legislation on whether and how it is consistent with the Equality Act. I hope that reassures the right hon. Gentleman that the Government are serious about addressing the issue he has rightly raised.

New clause 79 suggests a procedural device for incorporating certain EEA-related rules into UK law. This is entirely unnecessary given the wider snapshot of EU law this Bill will take at the point of exit.

I hope I have tackled, or at least have endeavoured to tackle—

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[Stephen Timms]

I rise to speak to amendment 151, which, at first sight, looks rather technical but actually references, as we have already established in this debate, a hugely important issue for the UK economy. I am very grateful to all those Members, from all parties across the House, who have signed the amendment, and to the Chairman of Ways and Means for selecting it for debate.

The amendment deals with future electronic communication between the UK and the remaining member states of the European Union. The Government’s future partnership paper on this topic, published in August, was absolutely right to highlight just how important an issue this is for the UK economy. That paper pointed out that the UK accounts for 0.9% of the world’s population, 3.9% of the world’s GDP, and 11.5% of the world’s cross-border data flows, 75% of which is with other EU countries. This is an enormously important issue, particularly for the UK economy given its reliance on its digital aspects.

The Government are absolutely right to argue that we must avoid restrictions on cross-border data flows because they would affect the UK more than almost any other country in the world. It is also right to point out that the UK has very strong personal data protection. That is currently being strengthened by the new Data Protection Bill being debated in the other place, which will bring our arrangements into line with the EU’s general data protection regulation, or GDPR, and the Government are absolutely right to make that point.

Nevertheless, we face a serious potential problem: the edifice of data privacy law in the UK rests on article 8 of the charter of fundamental rights. Under clause 5(4) of this Bill, article 8 will not be part of domestic law after we have left the European Union. Will the omission of article 8 from our law make any practical difference to how the law works in the UK? There have been some suggestions that it will not, but the evidence is that, in fact, it will.

In the exchange between the hon. and learned Member for Edinburgh South West (Joanna Cherry) and my hon. Friend the Member for Feltham and Heston (Seema Malhotra), we heard about the evidence given by Dr Charlotte O’Brien, a senior lecturer at York Law School, to the Select Committee on Exiting the European Union. She said:

“exclusion of the charter is problematic for a number of reasons”,

and I want to quote a couple of the points that she made.

Dr O’Brien said that a large number of appeal cases in UK courts cited the charter. She added:

“That is a lot of cases that have to be read differently and it is not clear how they are to be read differently.”

One of the appeal cases under discussion—we have referred to it a number of times in the debate—involved my hon. Friend the Member for West Bromwich East (Tom Watson) and the right hon. Member for Haltemprice and Howden (Mr Davis), now the Secretary of State for Exiting the European Union.

[Mr Harper]

I was just listening to what the right hon. Gentleman said about the court cases. Would it not be the case, if we did not have the charter of fundamental rights and article 8, that all those cases would simply cite the other pieces of legislation he mentioned—the general data protection regulation and the Bill we are currently passing through Parliament? I do not really see the problem he is trying to fix.

[Stephen Timms]

The right hon. Gentleman gets right to the heart of the case. I believe that the answer to his question is no they would not, or at least we do not know what the outcome would be. I suggest that the right hon. Member for Haltemprice and Howden might well not have won his case against the Government if he had not been able to rest on article 8. The hon. Member for Banbury (Victoria Prentis), who intervened earlier, might have persuaded the court that the then Home Secretary, now the Prime Minister, was right in what she was doing and that the right hon. Member for Haltemprice and Howden was wrong. We do not know what that Appeal Court would have decided, but I put it to the right hon. Member for Forest of Dean (Mr Harper)—I think he is rather implicitly accepting the point—that if article 8 had not been there for the right hon. Member for Haltemprice and Howden to rest on, the outcome of that case and of lots of others could well have been different.

To quote Dr O’Brien again, she made the point that the gap that is created by no longer having the charter of fundamental rights in UK law is probably clearest in the case of data protection because of the charter

“creating fairly specific, concrete rights that are not necessarily enunciated in exactly the same terms elsewhere.”

I think that is the answer to the intervention I have just been responding to: actually, these rights are not readily available elsewhere.

I was delighted to hear from the Minister that we will get a document—I think he said by 5 December—setting out all the rights in the charter of fundamental rights and where they can be found elsewhere in UK law. That will make very interesting reading. I simply make the point at this stage that a number of experts are saying that some of the rights—this is particularly the case with article 8—are not elsewhere. It will be interesting to see what that document says.

It is worth reminding the Committee of what article 8 says. The first two of the three points within it state:

“Everyone has the right to the protection of personal data concerning him or her…Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.”

As has been mentioned in this debate, there is a right to be forgotten, and that is provided by the right to have data rectified. It goes on to say that there needs to be an independent body in charge of all this. That is what article 8 says, word for word. My amendment says that that needs to be on the statute book in the UK. I do not think that those forms of words would cause great difficulty to the Government. We all agree that these are appropriate things, but they need to be explicitly set out in the law so that they can be drawn on in future, because they are not set out clearly elsewhere.

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[Darren Jones]

Does my right hon. Friend recognise that if the European Commission makes a decision on equivalence, that recommendation has to go to a committee of information commissioners from the 27 EU member states, and it is for them to decide whether there is equivalence? As the Institute for Government says, when making their decision, they will check whether data adequacy is met by considering respect for fundamental rights and a scope for judicial redress. Both redress and respect are mentioned in the EU charter of fundamental rights, are they not?

[Stephen Timms]

My hon. Friend, who is a lawyer specialising in these matters, is absolutely right. I understand that the European Parliament also has a role in all this, and so there is a political dimension to it as well.

The position at the moment is that as an EU member state we can exchange personal data freely with others in the EU—Governments, businesses and individuals. The Under-Secretary of State for Exiting the European Union, the hon. Member for Wycombe (Mr Baker), told the Select Committee that the Government would seek to include data flows in the wider negotiated agreement for a future deep and special partnership between the UK and the remaining member states of the EU. I welcome that confirmation. However, as we keep on being reminded, we might not get a deal, so what then? If we do not get a deal and an adequacy determination, it will be unlawful to send personal data from the European Union to the UK, and, at a stroke, there will be no lawful basis for the continued operation of a significant chunk of the UK economy. I hope we all agree that we must avoid that outcome at all costs. Already, we hear that hi-tech start-ups that need access to personal data are starting to look at Berlin in preference to London because of the possibility that that problem might, in due course, arise.

The Government have argued that because we are fully implementing the GDPR, the Commission will be unable to find fault with UK arrangements even if we lose article 8. I have to say to Ministers that the UK technology sector does not agree, and my judgment is that it is absolutely right to be worried. The danger is not a theoretical one, as we see in the case of Canada. A very long-running series of negotiations has led to a pretty ambitious agreement between Canada and the EU, but Canada has only got a partial adequacy determination.

If we ended up with only a partial adequacy determination on data, it would be extremely damaging for the UK economy. The US arrangements known as “safe harbour” were famously struck down as inadequate by the European Court of Justice in a case brought by an individual Austrian citizen in 2015. That caused an enormous upheaval and led to the very rapid introduction of new arrangements in US regulation called “privacy shield”, which I understand are being called into question in a new case at the European Court of Justice by the same Austrian citizen.

The European Court of Justice is particularly sensitive about UK bulk collection of personal data. That issue featured prominently in the Appeal Court case, which we have touched on several times in this debate, brought by the right hon. Member for Haltemprice and Howden. The Court considered whether the powers in the Data Retention and Investigatory Powers Act 2014 went too far, allowing the state to breach personal data privacy, and concluded that the powers introduced by the then Home Secretary went too far. Article 8 of the charter, specifically, was the basis for that conclusion. If article 8 is no longer in UK law, it may make life easier for future Home Secretaries who wish to do the kind of thing that the previous Home Secretary tried to do, because they are much less likely to be found in breach. That rather bruising experience at the hands of the right hon. Member for Haltemprice and Howden may well be one reason why the Prime Minister wants to keep the charter out of UK law.

[Hilary Benn]

My right hon. Friend is making a very powerful case. The Select Committee heard evidence from the Under-Secretary of State for Exiting the European Union, the hon. Member for Wycombe, who said that the Government would seek a data adequacy agreement. Like him, I would welcome that, but it is not entirely clear whether that can be achieved, should there be a deal.

I had always understood the data adequacy decision to be a regulatory decision of the Commission in respect of a third country, as my right hon. Friend has made clear in his previous remarks. Therefore, if there is no agreement or it is not legally possible to override the decision with an agreement, all the points that he has made—that the Commission has to decide, and that the decision is subject to legal challenge and could go to the Court or to other member states—merely demonstrate how much is at stake when it comes to getting this right.

[Stephen Timms]

I absolutely agree with my right hon. Friend. My understanding is that the shortest period in which a data adequacy agreement has ever been achieved is 12 months, in the case of Japan. Very often, these things take a good deal longer.

By exactly the same token, and precisely because it may be a source of satisfaction to Home Office Ministers, excluding article 8 will constitute an invitation to the European Commission and the European Parliament to find fault with UK data privacy regulation. The cases brought by the right hon. Member for Haltemprice and Howden and others would not have succeeded if they had not been able to rely on article 8. Those who look at these matters on behalf of the European Union will have no doubt in their minds, as far as I can see, that that is the case.

[Daniel Zeichner (Cambridge) (Lab)]

My right hon. Friend is making an excellent case on a very complicated set of issues. Does he agree that the conclusion we should draw from the points he has made and from the observation I am about to make, which is that this has so far been a very lawyerly discussion, is that this will end up being a highly political decision? Whatever the rights and wrongs as expressed by the lawyers today, we are politicians who face a political set of choices, and we are absolutely offering those who do not have our best interests at heart the opportunity to frustrate us in future. It is a very risky endeavour, and it would be much easier to keep the charter.

[Stephen Timms]

My hon. Friend is absolutely right. This is such an invitation, and it is a terrible risk to take. Frankly, I think it is playing fast and loose with a very important part of the UK economy.

Let me finish by quoting the industry body representing this part of the UK economy, techUK, which is very deeply concerned about this issue and supports amendment 151. It makes the point that

“the Government must do all it can to ensure that we are in the best possible position to secure adequacy, and this includes making clear, at every opportunity, that the UK’s data protection framework is equivalent to the one we have operated as an EU Member State.”

Leaving article 8 off the statute book seriously imperils the future achievement of such an adequacy determination. We will of course argue that our arrangements are adequate, but for data exchanges with EU countries, it will not be our call; it will be their call. They will make the decision: the call will be made by officials and politicians in the European Union and by the European Court of Justice. It is running too great a risk for our digital economy—at 10% of GDP, it is proportionately the biggest digital economy anywhere in the G20—and I urge the Committee not to run that risk or to play fast and loose with the UK economy, but to accept amendment 151.

[Mr Harper]

I should probably declare whatever the opposite of an interest is, in that unlike many of those who have spoken so far, I am afraid that I am not a lawyer. I am a humble accountant, so I hope colleagues will forgive me if I do not always get the exact legal points they have made absolutely spot-on. However, I will do my best to do justice to the debate.

I will run through the new clauses and amendments in broadly chronological order as the debate has flowed, making comments that I think are pertinent based on the arguments that have been made. Let me start with new clause 16, which was moved by the hon. Member for Nottingham East (Mr Leslie). I listened carefully to what he said, and I think the Minister dealt with it effectively by committing the Government, quite explicitly, to producing the memorandum promised by the Secretary of State in evidence to the Select Committee by 5 December.

There was a bit of an exchange in one corner of the Chamber when my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) sought clarification on whether that would be before Report. I fear, having done a little mental arithmetic, that it will be well before Report, because there are five remaining days in Committee and given the Budget debate, even if we sat every day and fitted them all in, we will not get to Report by 5 December.

We will therefore have the memorandum while we are still in Committee, so we will be able to see whether what the Minister and the Government say is correct, as I believe it is, which is that all the articles in the charter of fundamental rights are underpinned by a retained EU law foundation that will be brought into UK law. I do not know how the Government will lay out the memorandum, but we will be able to see how each of the rights is underpinned and its legal basis. We will be able to have a debate about that, and if Members are not satisfied with the memorandum that the Secretary of State has brought forward, that will leave open the opportunity for tabling further amendments on Report. I therefore hope that the hon. Member for Nottingham East will not need to press his new clause.

The right hon. Member for Tottenham (Mr Lammy) is not in his place, but I want to pick up his remarks about the signals and messages sent out. I do not think that that is a helpful way of looking at this issue. The charter of fundamental rights came into force with the Lisbon treaty. Unlike some hon. Members, I sat through 10 of the 12 days of debate on the Lisbon treaty—much like the debates that we are having now, although we were in opposition then. Before that measure came into force, we did a pretty good job in this country of protecting rights, and we were one of the best countries at protecting rights. The idea that if we do not have the charter of fundamental rights somehow dreadful things will befall us does not stand up.

The right hon. Gentleman’s specific example of people, including children, who were held and used in slavery and servitude around the world, was a particularly poor one. This country introduced the Modern Slavery Act 2015 under the leadership of my right hon. Friend the Prime Minister when she was Home Secretary, and demonstrated that it did not follow the world on human rights matters but led it. That groundbreaking piece of legislation introduced a significant number of measures for businesses to be able to understand supply chains, and introduced considerable legal powers to deal with human trafficking and modern slavery. It stands as a positive beacon in the world, rather than the negative one that the right hon. Member for Tottenham suggested.

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[Stephen Timms]

May I just challenge one point? If the right hon. Gentleman looks at the Data Protection Bill currently being debated in the other place, he will see that it does not say that everybody has the right to have their personal data protected. It does not set the right in the terms set out in the article. From a European perspective, and from an Appeal Court perspective, that is potentially a problem.

[Mr Harper]

I will come on to that at the end of my remarks. I followed the right hon. Gentleman’s speech very carefully. He is absolutely right that we should deal with this in a serious way, because it is a very significant part of our economic present and, I hope, an increasing part of our economic future as we in this country are particularly well placed to take advantage of the digital economy.

The other interesting point flagged up by my right hon. and learned Friend the Member for Beaconsfield is the fundamental argument about rights legislation. He pointed out that some decisions on potentially striking down Acts of Parliament would have to be taken by the UK Supreme Court, not the European Court of Justice. He said he was very relaxed about that because he had great confidence in our judges, as do I. For rights legislation, however, there is a different argument to have, which is not about the nationality or otherwise of the judges or the court, but whether such decisions should be taken by judges or by democratically elected politicians in this House. We had this argument when we debated prisoner voting—not on the nationality of the judges and the court, but on whether that was a proper decision to be made in this democratically elected House or by judges interpreting a living document. That was a point my right hon. and learned Friend teased out in his remarks.

Listening to the debate as it progressed, my right hon. and learned Friend accepted that his amendments may not be the best way to deal with the potential problems he flagged up. The exchange between him and my right hon. Friend the Member for West Dorset was very interesting and spoke to the debate on schedule 1, to which the Solicitor General will reply. Amendment 10 would get rid of paragraphs 1, 2 and 3 of schedule 1. The reason my right hon. and learned Friend gave for removing paragraph 3 was that it talked about the general principles of EU law and not the retained principles. Paragraph 2 tries to deal with the retained principles by saying that we keep all the general principles that have been reflected in decided case law before exit day.

That was an interesting discussion. It suggests that it might be possible for the Solicitor General to find a way for the Government to amend the Bill on Report. Clearly, my right hon. and learned Friend wanted a little specificity on that, although I do not agree with my right hon. and learned Friend the Member for Rushcliffe, who tempted the Government just to accept the amendments and then correct them. Having been in the Solicitor General’s position at the Dispatch Box, I would prefer the risk-averse approach of inviting the House not to be tempted by the amendments and then coming back afterwards, but I accept that those tempted by the amendments will want a little specificity and detail from him about the nature of what he will reflect on and bring forward. I hope that he can produce the right level of specificity to give my colleagues that confidence.

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[Mr Harper]

That is a very helpful point. There may well be areas in which, because of the nature of the product or service involved, the exact matching of regulations will be judged to be right, but that may well not be the case in every single area. Perhaps what we need is a sensible structure that allows us to have some debates and decide what is the right thing to do, and then have conversations with our European neighbours. That will be one of the big arguments as we negotiate the trade deal, because it is relevant to the extent to which we can then have different arrangements that will enable us to seize the opportunities that are undoubtedly available to us around the globe.

I was on the remain side, as, indeed, was my hon. Friend. There is also the argument that if we continue to match every single regulation introduced by the European Union, particularly when we have no say in the process, we shall not be gaining any of the benefits of not being in the EU, which would rather defeat the point of leaving in the first place. I certainly believe that, given that the country decided to leave, we need a good, deep relationship with our EU partners so that we can continue to trade with them, but we also need to be able to take full advantage of every opportunity of securing that incremental business from around the globe. My hon. Friend is right, however: we should listen to the businesses that are involved in these sectors, and make the right decisions.

Let me now deal with the specific points made by the right hon. Member for East Ham about amendment 151, which would require the laying of

“regulations to create a fundamental right to the protection of…data.”

There is an argument here about what will or will not be the behaviour of our European partners, both the member states and the Commission. It seems to me that, if we deliver legislation according with the general data protection regulation in our Data Protection Bill, along with other provisions that protect such data, the European Commission may decide, for what will be political reasons, to rule that there is some incompatibility. If the Commissioners have made up their minds, for political reasons, to be mean and horrible to us and try to damage our economy, there is not very much that we can do about that. Even if we were to do what the right hon. Gentleman has suggested, they would just dream up another excuse to damage us.

If that is how the Commission is going to behave, it is not an organisation I would want to be a part of, but I do not take the view that that is what the Commission or the other member states are going to do. It is certainly not the way we have approached the negotiations. The Prime Minister has been very clear that we want a deep and special partnership with our European neighbours. We have made clear—this is relevant on the data issue—that we will have an unconditional relationship with our EU partners on security and intelligence co-operation: we will use our assets and resources to help to defend and protect European security. On that basis, it would be very churlish if the European Commission were to take the approach the right hon. Gentleman set out.

[Stephen Timms]

I agree: I do not think the Commission will be churlish or needlessly spiteful. But the problem is that if we do not have a clear right in law that everyone’s personal data will be protected—if article 8 is not there any longer, we will not—that is an invitation to the Commission to find against us. My point is that we should not be taking that risk.

[Mr Harper]

I accept that we should not take unnecessary risks, but it seems to me that we could deal with that. I confess that I am not completely across the content of the Data Protection Bill—I hope the right hon. Gentleman will forgive me—but it seems to me that we could make sure we deal with that concern in that Bill, and Ministers on the Treasury Bench will no doubt listen to that point.

My final point is about something that has been brought up on a number of occasions. One benefit I have from being on the Back Benches is that I do not feel the necessity to defend every aspect of Ministers’ behaviour, particularly things they did before they were Ministers. The case that keeps being cited—[Interruption.] The Ministers on the Front Bench are looking very worried now, because they do not know what I am about to say. I happen to think that the Secretary of State for Exiting the European Union was not correct in the case he brought against the Government, and I happen to think that the Prime Minister when she was Home Secretary was right to defend it.

We also dealt with any potential defects in the Data Retention and Investigatory Powers Act 2014 in the ground-breaking legislation this House passed more recently, the Investigatory Powers Act 2016. I am reasonably familiar with that legislation: I had to consider it when I was a member of the Government, and dealt with how we approached the House. The way we proceeded with that legislation was by bringing forward a Bill that was in good shape at the start of the process, and then having a very thorough scrutiny process across parties. The Opposition took a sensible, grown-up approach on it, because it was very important legislation. We dealt with the concerns, and that is the right way to proceed. This House is perfectly capable of dealing with such concerns, and this House is the right place to deal with them.

The Modern Slavery Act 2015 is a model for legislation to deal with people being kept in servitude, and, similarly, the Investigatory Powers Act is ground-breaking, world-leading legislation on how to balance individual freedoms and rights to privacy with the legitimate rights of the state to ensure it protects those citizens from those who will do us harm. This House and the other place got the balance right in that legislation, and we should have more confidence in the ability of ourselves as parliamentarians.

The hon. and learned Member for Edinburgh South West (Joanna Cherry), who speaks for the SNP, harrumphed a little a bit—she is not in her place to harrumph again, probably—when my right hon. Friend the Member for Wokingham (John Redwood) spoke about this House being the place where we guarantee those freedoms. She was not hugely impressed by that argument, but the two examples I have given show that we should have a bit more self-confidence about this House being the place where we defend those essential rights. I therefore commend the Bill in its present shape to the House and hope that hon. Members on both sides of the Committee do not press their new clauses and amendments to the vote.

European Union (Withdrawal) Bill

Stephen Timms Excerpts

Committee: 5th sitting: House of Commons
Wednesday 6th December 2017 Commons Chamber

[Kirsty Blackman]

I thank the right hon. Gentleman for his comments. I have heard that pretty insubstantial information has been provided, particularly on the numbers.

I was concerned to note that the UK Government have made a call for evidence on trade remedies. They want information from companies, organisations and sectors about which trade remedies are important to their sector. The UK Government do not know which remedies are important, because they have not done the work. They do not have a good enough understanding of the sectoral impact of Brexit.

I shall highlight a few things in relation to that. The Bank of England recently asked what would happen to cross-border derivative contracts and insurance policies after Brexit. The UK Government have not answered the question. I asked them what would happen to rules of origin and what would happen to companies that, for example, made cars in the UK. What would happen to free trade arrangements that call for cars to have 55% or 60% UK content? Currently, it is EU content, but in the event of Brexit we would seek 55% or 60% UK content. Our cars do not have that much UK content, so I asked the UK Government for their position on rules of origin and what they were doing about that. Basically, the answer was “We don’t really know.”

There has been a complete lack of understanding. An awful lot of companies and organisations are going to the Government and saying, “This is our problem. You need to fix it—and you can do it this way.” Most of them have come up with solutions and have suggested ways to fix things. Insurance organisations, for example, have a huge problem. If they sell insurance to someone in an EU country, after exit date they will no longer be able to collect premiums or pay out in the event that someone makes a claim, and they will not be allowed to write to those people to tell them that they cannot do those things, because that is how the rules work.

The UK Government could attempt to give certainty now on a number of such issues, including customs. The economic impacts of this are unbelievable, and the regulatory impacts are baffling even the Government. The impacts are going to be too big for anyone to comprehend. Most of the stuff that we will look at in future, according to how the Bill is drawn up, will be dealt with in SI Committees. It is totally inadequate to discuss incredibly important regulatory regimes, levies and taxes in such Committees. That is not how the Government should proceed. They should change their mind on that and look at the amendments that have been tabled, particularly by the hon. Member for Nottingham East (Mr Leslie). The SNP is willing to endorse them, and we thank him for introducing them.

[Stephen Timms (East Ham) (Lab)]

I am pleased to follow the hon. Member for Aberdeen North (Kirsty Blackman). I share her bemusement at where we have got to on the impact assessments, which we have now been told do not exist. Like her, I would have thought that that work would have been done—it certainly should be done. If it has not been done—we have been told that it has not been done—it urgently needs to be done so that the Government and the House can take an informed view about where we are heading.

I wish to speak briefly to my amendments 152 and 153 to schedule 4, which touch on the matter raised by my hon. Friend the Member for Darlington (Jenny Chapman). She pointed out that while it was a good thing that Ministers could assure us that no new taxes would be introduced as a result of the sweeping powers that the Bill gives to Ministers—I am glad that new taxes are not going to be imposed on us through the use of these powers—nevertheless the Bill gives them the powers to impose charges. My hon. Friend is absolutely right to make the point, which was also made by the hon. Member for Aberdeen North, that there is frankly precious little difference between taxes and charges. There are wide powers in the Bill to impose new charges, so my amendments 152 and 153 are intended to constrain the power of Ministers to impose charges, which could be almost limitless in scope. I hope that the Minister, in winding up the debate, will be able to give assurances to the Committee that these powers will not be used in ways that none of us would want. I hope that by probing the Minister’s intentions through my amendments I will receive the assurances I seek.

Amendment 152 would amend line 35 of schedule 4, on page 32. The schedule is slightly alarmingly worded, and the amendment is to part 1, which deals with the power to provide for fees or charges. Paragraph 1(3) lists various things that Ministers can introduce regulations to do: to prescribe fees or charges; to provide for recovery of any sums payable; and to confer power on public authorities to do rather similar things. The sub-paragraph explicitly allows Ministers to introduce regulations on those three things, but its first line also reads:

“Regulations under this paragraph may (among other things)”.

Apart from the three specific things, which, frankly, sound rather alarming, it seems that there are some other, non-specified things that the schedule would empower Ministers to do. Amendment 152 simply proposes the deletion of the words “among other things”, so that at least Ministers can do only three things to demand money from taxpayers or charge payers.

[Helen Goodman]

I just want to make sure that I have understood what my right hon. Friend is saying. Surely what is being proposed here is that Ministers’ ability to use secondary legislation to impose taxes should be constrained, and they will be allowed to impose charges—not that if the Brexit bill is ginormous and the public finances are in a mess, Ministers will have stood at the Dispatch Box now and committed never to increase income tax. That is the correct understanding, is it not?

[Stephen Timms]

My hon. Friend is absolutely right. The amendment simply constrains Ministers’ ability to introduce new charges—she calls them taxes, and she has every right to do so—under the secondary legislation envisaged in schedule 4. What I hope the Minister will do is assure us that by “among other things” he is not envisaging some great long list of new money-raising powers.

[Helen Goodman]

Before my right hon. Friend moves on, is it not worth considering those EU agencies, such as the European Medicines Agency, that are financed by charges on the industry, not by the taxpayer? We should really be hearing from the Minister how the Government propose to fund such agencies in future.

[Stephen Timms]

My hon. Friend is absolutely right. We come directly to that point in amendment 153, in which we propose to add to schedule 4 the words set out on the amendment paper, which I shall read out. We propose to constrain Ministers’ powers by saying, first, that regulations

“may not be made for the purposes of…creating a fee or charge that does not replicate a fee or charge levied by an EU entity on exit day”.

That is exactly the point my hon. Friend has just raised. We of course recognise that a lot of charges are imposed at the moment by EU bodies of one sort or another—she mentioned a very important one—and that, in future, comparable fees or charges may well need to be levied by UK entities, but the aim of the first paragraph of amendment 153 is to make it clear that Ministers cannot impose new fees or charges for which there is not already a counterpart from the EU entity.

[Sir Oliver Letwin]

The right hon. Gentleman is doing exactly what needs to be done in Committee, and I have considerable sympathy with his ambitions. Has he considered whether the reference to remedying deficiencies as the basis for secondary legislation powers under the Bill would in any case have the effect he is describing?

[Stephen Timms]

I had not considered that, and the right hon. Gentleman may well have a point. I would be interested to know whether that is indeed the case. That interesting point is certainly worth pursuing, and I would welcome it if he expanded on that later.

Secondly, amendment 153 states that Ministers cannot bring forward regulations for the purpose of

“increasing a fee or charge to an amount larger than an amount charged by an EU entity for the performance of the relevant function on exit day.”

Let me take the example my hon. Friend the Member for Bishop Auckland (Helen Goodman) mentioned. The European Medicines Agency does very important work, and it charges the industry for that work. I am suggesting that the secondary legislation powers in schedule 4 should not be used to introduce a charge for the same function that is higher than the one currently charged by the European Medicines Agency. There may well be a loss of economies of scale in leaving the European Medicines Agency, and it may well be that undertaking that function purely for the UK will be a less efficient process than doing it EU-wide, as the European Medicines Agency does, but I do not think the secondary legislation powers in the schedule should be used to impose on industry or any charge payer a fee that is higher than the one currently charged by the EU entity.

I accept that there may well in due course need to be some higher fees or charges than those currently levied by EU entities, because the process may well be less efficient when carried out at a UK-only level, but I do not think the secondary legislation powers should be used for that purpose. If Ministers want to bring forward a proposal to impose a higher fee or charge, they should do so through the proper parliamentary process, with scrutiny by this House, not through secondary legislation powers.

[Helen Goodman]

One of the points made to me by those in the industry is that if these fees and charges shoot up, that will have an impact on their competitiveness, which is the last thing we want. Does that not reinforce my right hon. Friend’s point?

[Stephen Timms]

Once again, my hon. Friend is absolutely right. Indeed, my amendments arise specifically from the discussions I have had with those in the tech sector who are worried about the prospect of being hit by substantially larger fees and charges in the future, which is exactly what the powers in the schedule would allow Ministers to do.

I very much hope that the Minister will give us an assurance that these powers will not be used in that way, and that we will not find that industry and charge payers of other kinds are hit by fees or charges that are not being charged at the moment or are higher than those currently being charged. I very much look forward to the Minister’s response.

--- Later in debate ---

Schedule 4 will mitigate the burden of taking on new functions on the general taxpayer. It ensures that fees and charges that are currently made in relation to retained EU law, such as the cost of Kimberley process diamond certificates, can continue to be modified as costs rise and fall, and that new fees and charges can be made, for example to replace those being made by the EU, such as for the regulation of chemicals. That will ensure that those who benefit from the functions transferred from the EU to the UK pay for them and that taxpayers, both corporate and individual, do not end up paying for services provided to others.

[Stephen Timms]

Does the Minister accept that we should hope that those fees and charges will be lower than those that have been paid until now to EU institutions?

[Mr Baker]

I am happy to tell the right hon. Gentleman that, as a good Conservative, I certainly hope to reduce the costs on businesses and individuals. I will come to his amendments in a moment.

New clause 17 and amendment 54 show an understandable desire to protect the role of this House, but they are not necessary. The Government have always been clear that the negotiated financial settlement will be part of our withdrawal agreement and that the House will be given a vote on that agreement. My right hon. Friend the Secretary of State for Exiting the European Union was very clear on 13 November when he announced the withdrawal agreement and implementation Bill. He said that, as one of the principal elements of our agreement with the EU, we expect that legislation to include authorisation to pay any financial settlement that is negotiated with the EU. The Bill we are debating today is about ensuring that the statute book is operational on exit day, not about paying any settlement. The same argument applies to new clause 80.

[Mr Baker]

I am confused by the hon. Gentleman, because he is such a diligent Member of the House. I explained moments ago that we will bring forward the withdrawal agreement and implementation Bill, which will cover any financial settlement, among other withdrawal issues. I would of course expect that Bill to go through the normal legislative processes, during which he and other right hon. and hon. Gentlemen will have a full opportunity to scrutinise those provisions.

I turn to the amendments tabled by the right hon. Member for East Ham (Stephen Timms). The power in part 1 of schedule 4 can be used to create fees and charges of the type that amendment 153 is concerned with. That power can be used to establish new fees only in relation to functions being transferred to UK entities under the powers in this Bill. In most cases, one might expect that it will be replacing a fee set at EU level, but in some cases it may be right that it will be better value for the taxpayer and for users of the services to create a new fee to pay for functions that the UK previously funded through the EU budget.

Amendment 152 does not recognise the need for adjustments to other, peripheral aspects of the fees regime in connection with charging fees or other charges—for example, arrangements for refunds, which I think all Members can agree should be possible so as not to leave ordinary hard-working fee payers unfairly out of pocket. Furthermore, future Governments, in the fullness of time, may wish to simplify charges, amalgamate them, or charge less for one function or another.

[Stephen Timms]

In future it may be necessary to do all sorts of things, but surely the powers in this Bill should not be used to impose new charges on businesses that are not being paid at the moment.

[Mr Baker]

This Bill, first and foremost, is about exiting the European Union successfully, with certainty, continuity and control, as the right hon. Gentleman will know. I draw his attention to schedule 2(7), which makes it very clear that in the event that a provision imposed a fee or charge, or conferred a power to sub-delegate, it would go to the affirmative procedure and this House would have the opportunity to vote on it.

I turn to amendment 339 on sub-delegation. It is right that this House keeps strict control over all financial matters, but this Bill is about ensuring continuity. I remind the Committee that this power is available only if the public authority is taking on a new—[Interruption.]

European Union (Withdrawal) Bill

Stephen Timms Excerpts

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

[Mr Leslie]

I agree that we want to have a tariff-free relationship with our European neighbours—that much we can all agree on. However, the hon. Gentleman should look at the circumstances where we export to third countries outside the European Union that are not part of the free trade agreements that we have accrued over the 40 years of our membership of the European Union. Those free trade agreements are there for a reason. As we heard earlier, the reason people want out of the pure WTO arrangement and into an FTA is precisely that they want to minimise many of the transactional barriers and the inertia that can be there.

Let us take the car industry as an example. The chief executive of the Society of Motor Manufacturers and Traders, the car industry’s own representative, is now voicing concerns about investment in the sector gradually beginning to ebb away, partly because of the uncertainty of this whole situation. The level of investment in the industry in the UK was £2.5 billion in 2015, then £1.6 billion in 2016, and it is heading to less than £1 billion this year. Car companies are “sitting on their hands”, according to the chief executive of the SMMT.

[Stephen Timms (East Ham) (Lab)]

I want to take my hon. Friend back to what he was saying about the border between Northern Ireland and the Republic of Ireland. We had evidence this morning at the Brexit Committee on this. As he knows, in their recent agreement with Brussels, the Government committed to having no infrastructure at the border, and, if necessary, to our providing full regulatory alignment with the internal market and the customs union in order to achieve that. Is he encouraged by that commitment, even though the Government’s current policy is not to stay in the customs union, because if it stands, it looks very likely that we will have to, in effect, stay in the customs union?

[Mr Leslie]

Absolutely. If we can maintain full alignment, which was the phrase used in that agreement, that is essentially the same thing as a customs union arrangement. However, there was a caveat in that Ministers said that it would apply unless specific solutions can be found for divergence that they might want to see. That is a bit like the European negotiator’s way of saying, “Come on then, do your best—let’s have a look at what you can dream up.” The worry that I had when the Prime Minister returned was that her interpretation of full alignment was to reference the old list within the Good Friday agreement that merely talked about areas such as agriculture, energy and tourism but excluded trade in goods, which is a pretty big part of the issue at the border. I do not think the European Union signed up to this thinking that there was an exclusion for trade in goods. It is a question of “watch and wait” until the situation unravels.