European Union (Withdrawal) Bill

Steve Baker Excerpts

3rd reading: House of Commons & Report stage: Second Day: House of Commons
Wednesday 17th January 2018 Commons Chamber

I am glad to say that in the course of those discussions, Ministers—the Minister on the Bench today, my hon. Friend the Member for Wycombe (Mr Baker), and my hon. and learned Friend the Solicitor General—were most constructive in their response. I accept that the Government are genuinely seeking to tackle this matter and to minimise the need for dealing with it by means of regulation as far as possible. For that simple reason, it looks as if there could be 800 to 1,000 pieces of secondary legislation needed. With the best will in the world, it is a massive task, so what I have done now is to return with a much narrower new clause, which will deal only with the default position in those circumstances where, for whatever reason, it was not possible to deal with potential deficiencies by means of regulation under clause 7. Therefore, it is even more of a stopgap, but there is still a sentiment among people in the business sector that things inevitably crop up that are sometimes time-sensitive—perhaps in the course of ongoing litigation or in the interpretation of a significant commercial contract where it may not be possible to wait for the process of secondary legislation to go through. It is that important but narrow point that my measure is designed to deal with.

[The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Steve Baker)]

My hon. Friend gives us a salutary reminder that it is important that we make all the appropriate corrections before exit day, and the Government do want to make all of those corrections and to ensure that the law is accessible for all. I can confirm to him that Government Departments and the centre of Government are listening to industry, including the City, as part of our planning. We have put in place procedures and tools to ensure that we prioritise the most important corrections and so that nothing is missed out. On top of that, as the Bill provides for, we have put in place an urgent procedure in case of last-minute developments to which he refers.

[Robert Neill]

I am very grateful to the Minister for that helpful intervention. I am conscious, as I said, that the Solicitor General and other Ministers have done work on this, and that will shorten what I have to say. I hope that the Minister might meet me in due course to discuss the way in which the urgent procedure will operate so that we can get more detail. That is what I was seeking to achieve—to make sure that we have a means of dealing with something when a decision needs to be made pretty much in real time under these circumstances. That reassurance that the Government will find the means of doing that enables me to confirm that I shall not be pressing the matter. It does of course apply to situations in which, for whatever reason, something has been overlooked in the transition process, or in which something has cropped up that could not reasonably have been foreseen by means of the best endeavours. Against that background, I welcome the Minister’s clarification on that matter. I gather from his nod that he is happy to discuss the matter further with me, so I need not trouble the House any longer.

--- Later in debate ---

[Sir William Cash]

I am indeed. I am grateful to my right hon. Friend, who also serves on the European Scrutiny Committee. The provisions I refer to would be express provisions. Therefore, the question of principle is fundamental and will also, no doubt, be taken up in the House of Lords. Furthermore, former Law Lords and members of the Supreme Court have expressed their concerns.

The European Scrutiny Committee’s unanimous view when we met this morning was that Parliament as a whole needs a solution that confirms the principle of parliamentary sovereignty along the lines of declarations of incompatibility under the Human Rights Act 1998, as I indicated in my correspondence with the Prime Minister, whose letter I received on 9 January. To take this forward, may I ask my hon. Friend the Minister to intervene to give me and the House an assurance that when the Bill is in the House of Lords, the Government will constructively engage with the European Scrutiny Committee, with any other Committees of both Houses and with the advice of the Attorney General and the Lord Chancellor to explore and find a proper solution to the constitutional issues I have raised in the national interest?

[Mr Baker]

I am grateful to my hon. Friend for the case that he has made. The Government are well apprised of the issue that he has brought to the House. It is absolutely right that we respect and uphold parliamentary sovereignty—

[Mr Speaker]

Order. Before the hon. Gentleman continues, I had—I will not say revelled in the expectation, but had been taking quiet satisfaction in the expectation, that the hon. Member for Stone (Sir William Cash) had in fact completed his speech.

--- Later in debate ---

[Mr Speaker]

That is a moderately eccentric way in which to proceed, but we will allow a brief intervention—and a very brief response, I hope.

[Mr Baker]

That is why in the Bill we treat retained direct EU legislation as primary legislation for the purposes of the Human Rights Act, and why we have taken the approach we have to challenges based on the general principles. Bearing in mind what my hon. Friend has said—and, indeed, what my right hon. Friend the Member for Clwyd West (Mr Jones) has said—and the view of the Select Committee, which he has just set out, we will of course listen carefully to him and his Committee, and the other individuals he has mentioned, as the Bill continues its passage.

--- Later in debate ---

[Mr Baker]

This has been a full and vibrant debate, with many excellent contributions and memorable moments, to which I shall try to refer at the end, if there proves to be time.

Two Members made particular requests. The hon. Member for Brighton, Pavilion (Caroline Lucas), who is not in her place, asked about the timing and when we would take forward our policy. I will undertake to discuss that with my right hon. Friend the Secretary of State for Environment, Food and Rural Affairs later this week.

My hon. Friend the Member for St Ives (Derek Thomas) mentioned the shared prosperity fund. I assure him that we discussed it when I visited Cornwall and that the Government are well aware of the need in Cornwall and other areas. We will drive forward the design and implementation of that fund.

It might help the House to know that I intend to speak first to the Government amendments and, in a couple of cases, the related Opposition amendments. I will then ensure that I have dealt with the Belfast agreement, as it is so important, before working through some of the other amendments, if time allows.

Government amendment 33 builds on the exit-day amendments tabled by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), to whom we are grateful. This further amendment to schedule 7 makes the power to set exit day subject to the affirmative procedure, thereby fulfilling a commitment that I gave at the Dispatch Box during day eight in Committee. As the Prime Minister and the Secretary of State have made clear, we have always been committed to the proper parliamentary scrutiny of our exit from the EU. In line with our promise that Parliament will be given time to debate and scrutinise the legislation that implements the final agreement that we reach with the EU, it is appropriate that Parliament scrutinises any potential change to exit day. I hope the whole House will support the amendment.

Labour’s amendment 1 would allow the Government to amend the definition of “exit day” if it were not in accordance with any transitional arrangements agreed under article 50. I understand the intention behind the amendment, but I remind the House that, after the improvements to which I have referred, the Bill now provides for changes to the exit day, as set out in article 50, to ensure that the domestic situation reflects the international position. Furthermore, Government amendment 33 will ensure that Parliament has appropriate scrutiny of any change to the date of exit by making it subject to the affirmative procedure.

Amendment 10, which was tabled by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), would require exit day to be specified in a separate Bill on the terms of withdrawal. It replicates an amendment that was debated in Committee in November, since when the Bill has benefited from the amendments I mentioned and, in particular, the changes suggested by my right hon. Friend the Member for West Dorset. Exit day will be set out in law as 11 pm on 29 March 2019, but we will have the technical ability to amend it if the UK, the EU and, indeed—to address the right hon. Lady’s points—the European Council, decide unanimously to change the date. The right hon. Lady referred particularly to the European Parliament, but I have the text of article 50 with me and it is clear that any change would require the

“European Council, in agreement with the Member State concerned”

to unanimously decide to extend the period, so I do not accept her argument about the European Parliament having more say than this Parliament.

We have always been committed to the proper parliamentary scrutiny of our exit from the EU, which is why, in line with our promise that Parliament will be given time to debate and agree the legislation that implements the final agreement that we strike with the EU, it is appropriate for Parliament to scrutinise any changes to exit day through the affirmative procedure. In the unlikely event that the power to change exit day is used, it will simply be a technical change to ensure that our domestic legislation reflects the reality of international law. It is certainly not necessary, and would be disproportionate, to make such a change via primary legislation.

The House agreed in Committee to Government amendments regarding explanatory statements and to the Procedure Committee’s amendments to establish a sifting committee. We have tabled two technical amendments, Government amendments 35 and 36, to ensure that these amendments best function alongside each other. Government amendments 35 and 36 will ensure that the requirement for a Minister of the Crown to make an explanatory statement applies before a draft instrument is laid before the House for the purposes of sifting, as well as in other cases. They will also ensure that, where an explanatory statement has been made before the House of Commons for the purposes of sifting, there is no need to make a further statement after sifting when an equivalent instrument is laid again before both Houses of Parliament after being made or as a draft affirmative instrument. That will ensure that the committee has all the necessary information at its disposal and will avoid confusing double statements when nothing has changed.

[Sir Oliver Letwin (West Dorset) (Con)]

After the sifting committee has received an explanatory statement and before it makes a sift, will the committee also have access to Ministers to question them if it cannot understand what the affirmative or negative instrument is about?

[Mr Baker]

I very much hope that the committee will be able to understand things through our meeting the requirements for explanatory memorandums that we have set out in the Bill, but I would of course expect Ministers to be helpful to the committee. We need to get statutory instruments through smoothly, and we would want to support the committee in reaching its decisions.

I will now jump ahead in my remarks to deal with new clause 3 and the Belfast agreement. New clause 3, which was tabled by the hon. Member for Nottingham East (Mr Leslie), is important, and I reiterate that the Government remain steadfast in their commitments to the Belfast agreement and its associated obligations under international law.

[Lady Hermon]

Will the Minister give way?

--- Later in debate ---

[Mr Baker]

Will the hon. Lady allow me to make my points? I think I am going to be able to satisfy her, but I will gladly give way after I have reached the particular point in which I think she will be interested.

The agreement between the UK and the EU, as set out in the joint report, must be negotiated and taken forward through the article 50 negotiations, not in this Bill. The EU set out before Christmas that negotiators now need to work on translating the commitments in the joint report into the withdrawal agreement or the framework for the future relationship. That is the task we will be engaged in over the coming months, so it would be wrong to cut across the negotiations by separately seeking to codify commitments into this Bill.

We have already committed to protecting the Belfast agreement in full through the withdrawal negotiations. The joint report sets out the Government’s and the EU’s commitment to respect the provisions in the Belfast agreement and the principle of consent. More broadly, we have said that we will introduce the withdrawal agreement and implementation Bill to implement what we agree with the EU as a whole. The joint report is also clear on the Government’s commitment to protecting north-south co-operation and to our guarantee of avoiding a hard border. We have been clear that we will protect the UK internal market in all circumstances and ensure the same unfettered access for Northern Ireland’s business to the entire United Kingdom internal market.

The detail of the withdrawal agreement and implementation Bill will and must reflect the terms of the withdrawal agreement, so I reassure the House that we will include an appropriate provision in the withdrawal agreement and implementation Bill upholding the agreement we reach, including the protection of the Belfast agreement, to which we committed in the joint report.

[Lady Hermon]

I am grateful to the Minister for giving way. I am delighted that he has confirmed that there will be no hard border and no border down the Irish sea. What I am concerned about are the pledges about the Belfast agreement. My focus has always been on the incorporation of the fundamental principles of the Belfast agreement. When I spoke to my new clause on the fifth day in Committee, I withdrew it on the understanding that the principles of non-discrimination, equality and respect before the law would be incorporated by the Government in forthcoming legislation. Will the Minister confirm that commitment?

[Mr Baker]

I remember our previous conversation about the general principles, which have been widely discussed during the passage of this Bill. As I said, we are fully committed to the Belfast agreement, and the appropriate commitments will be put into the withdrawal agreement and implementation Bill when it comes forward, so I hope the hon. Lady will allow me to move on at this point. Occasionally, a speech is made in this House that will never be forgotten, and one such speech was hers in Committee. I well remember the need as a young Royal Air Force officer to check under my car every time before getting in. Although I did not share in the troubles as she did, the echoes were felt where I trained in the Royal Air Force, so I assure her that I want to ensure that, by the end of the process, she is satisfied that we have upheld the Belfast agreement. [Interruption.] Did I hear a colleague ask to intervene? No.

--- Later in debate ---

[Mr Clarke]

Voices of inspiration, I trust.

My hon. Friend mentioned the withdrawal Bill several times. Am I right—to be absolutely clear—that the withdrawal Bill will come forward and be considered, and probably approved, by this House before any withdrawal agreement is ratified, that we will not be presented with a Bill to implement an agreement that is already binding on the United Kingdom, but that actually the Government will not ratify any agreements until the House of Commons has first given its support and approval?

[Mr Baker]

The situation is set out in detail in the written ministerial statement that we laid. Both Houses will have meaningful votes on whether to accept the agreement. It is my expectation that we would not ratify before that primary legislation has gone through.

New clause 1 was tabled by the Labour Front-Bench team. It seeks to place limitations on the use of existing and future powers to amend and modify retained EU law. It is absolutely right and necessary for existing domestic powers granted by Parliament in other Acts and any future delegated powers created after exit day to be able to operate effectively and without inappropriate fetter within UK domestic law after our departure from the EU. This includes parts of our existing domestic law which will become retained EU law after exit day, as well as retained direct EU legislation which will be converted into our domestic statute book.

The Bill’s current approach to existing and future delegated powers aims to ensure the successful operation of retained EU law within our domestic statute book beyond the time limits for the Bill’s more limited specific powers. Adopting the new clause, on the other hand, would undermine the position of certainty and have several detrimental effects that would risk creating significant confusion in the UK statute book. First, limiting the modification of retained EU law by existing and future delegated powers only to when this is necessary

“to maintain or enhance rights and protections”

could have uncertain consequences. A test of necessity would impose a high burden that may prevent powers from being used in the most appropriate and relevant way if the regulations they create are not deemed truly necessary for the protection of rights. That could mean that existing and future delegated powers would be unable to amend or modify irrelevant or unsuitable parts of the statute book, leading to ossification of parts of retained EU law within UK domestic law and creating confusion and uncertainty.

Secondly, a restriction of that nature inevitably will increase the possibility of legal challenge against any use of these delegated powers. That would create needless uncertainty for businesses and individuals and risk holes emerging within the domestic statute book. Finally, the measure would also impose significant consultation requirements on the exercise of the delegated powers, the use of which is running against the clock. I understand and support the intention to ensure that all relevant stakeholders, as well as the general public, are aware of the situation and can engage as new legislation is developed. However, the blanket approach suggested under the new clause would be excessively and needlessly onerous. It would risk delays to the implementation of important changes.

In using both existing delegated powers and those created in the future, the Government will, of course, remain bound by the rules and procedures laid out in the parent Act, as well as the accepted statutory instrument processes. I will take this moment to say that I am proud of what we have done to clause 7 to make sure that we have contained the list of deficiencies while making sure that it is amendable through the affirmative procedure.

Turning to new clause 22, I think that I satisfied my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) earlier in the debate, but he is not in the Chamber so, if the House will allow me, I will move on to new clauses 14 and 15—

[Mr Grieve]

May I take the Minister back to clause 7 and thank him very much for the approach that he took in the negotiations?

[Mr Baker]

I am extremely grateful to my right hon. and learned Friend, and pay tribute to him. Although I have occasionally disagreed with him, he has, of course, made a historic contribution to the passage of the Bill. I am very grateful for the way in which he has helped us to improve the legislation.

Labour’s amendment 2 would restrict the scope of the clause 7 power. Labour appears to accept the principle that the power is essential if the UK is to exit the EU with certainty, continuity, control and a working statute book, but restricting the power in the way proposed in amendment 2 would risk compromising our ability to ensure that that statute book continues to function, thereby leaving gaps in our law, and creating uncertainty and confusion for businesses and individuals.

As we have explained previously, making the list of deficiencies in clause 7(2) exhaustive and immutable would risk omitting important deficiencies, preventing us from fully correcting the statute book. To require primary legislation in such circumstances would undermine the purpose of the Bill and the usual justifications for secondary legislation: technical detail, readability, incompleteness and, crucially, the management of time. We cannot risk undermining laws on which businesses and individuals—often unknowingly—rely every day.

As my right hon. Friend the Chancellor of the Duchy of Lancaster set out yesterday, the word “appropriate” was chosen carefully to ensure that the Government have the discretion called for by this unique situation. The constraints that a test of necessity would impose would prevent the Government and the devolved Administrations from making the best corrections to ensure that the statute book continues to function properly. A provision of necessity would risk limiting the Government and the devolved Administrations to only the most minimal changes, regardless of whether that would leave the law deficient, create absurd outcomes, or change the outcomes that the legislation was intended to deliver. I cannot believe that any Member would want to risk leaving the statute book in such a state. I am very conscious that we are now in a position whereby either these instruments will be brought forward under the affirmative procedure or, if they are brought forward under the negative procedure, the sifting committee will have the opportunity to push us towards that affirmative procedure.

Amendment 2 and new clause 15 seek to prevent regression in the protection of rights and equalities as we leave the EU, and new clause 14 seeks to do similarly by maintaining equivalence with the EU. The UK already has strong protections for equalities and human rights as part of our domestic provisions, independent of our membership of the EU. Some of those predate or go beyond EU requirements. The Government are committed to protecting our equalities legislation as we leave the EU. As we set out in the paper that we published on equalities legislation, limited technical amendments will be needed to ensure that all relevant legislation continues to operate as intended by Parliament after exit.

[Chris Stephens]

Will the Minister confirm that the Government intend to keep in place the equal treatment directive, which has helped women to gain equal pay claims?

[Mr Baker]

My first point is that that will be incorporated into our legislation. The purpose of the Bill is to ensure that we carry EU legislation into UK law. Secondly, we can only correct deficiencies that arise as a result of our withdrawal, and the hon. Gentleman will be familiar by now with the provisions of clause 7 and associated schedule 2.

To increase transparency, the Government amendments accepted by the House on 13 December will require a Minister to make a statement relating to equalities legislation and duties before laying every SI made under the principal powers in the Bill, as sought by the hon. Member for Enfield, Southgate (Bambos Charalambous). It is not for this Bill to require similar statements in other EU exit legislation. Indeed, this Bill would not be able to affect most of this legislation, including the Sanctions and Anti-Money Laundering Bill and the Nuclear Safeguards Bill, which will have been introduced to the House before this Bill’s Royal Assent. However, as my hon. Friend the Member for Esher and Walton (Dominic Raab) promised in Committee, we will make equalities-related statements alongside other EU exit-related legislation, which I hope will satisfy the House.

Transparency will ensure that the House and the sifting committee established by the amendments tabled my hon. Friend the Member for Broxbourne (Mr Walker) have all the information necessary to make informed and reasonable judgments in the scrutiny of the SIs that we will be making under the Bill. I hope that Labour Front Benchers will be persuaded not to press their amendments.

I turn briefly to new clause 11, which was tabled by the right hon. Member for Carshalton and Wallington (Tom Brake). His contribution and the presence of the hon. Member for Streatham (Chuka Umunna) in the Chamber reminded me of a rather fetching photograph of the hon. Member for Streatham posing with a remain campaign poster pointing out that the leave campaign had said that we would leave the single market. If any Member wishes to see that, I might tweet it later.

It would be remiss of me if I did not thank all those involved with the passage of the Bill: all right hon. and hon. Members who took time to participate; all the Clerks in the Public Bill Office who have provided invaluable support to Members of the House; and the world-class officials in DExEU and across Government who have ensured the Bill’s smooth passage.