European Union (Withdrawal) Bill

Stuart C McDonald Excerpts

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

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

The Bill provides dangerous and sweeping powers to Ministers, rides roughshod through the devolution settlements, removes important legal protections and creates legal uncertainty, so, like most Opposition Members, I will definitely vote against Second Reading tonight.

Lots has already been said about the extraordinary proposed powers for Ministers in various Henry VIII clauses, to which the response has generally been, “Such clauses are already common”. It is true that they are far, far too common, but that does not mean that we should throw caution to the wind and hand them out like confetti. We should be fighting back against Henry VIII clauses, not handing out some of the most wide-ranging and dangerous-in-scope examples, as proposed in the Bill.

On the face of it, the proposed powers are so broad that Ministers could use Henry VIII powers to remove the very limits that are supposed to constrain their exercise, including the sunset clauses, and they are so wide that it is anticipated in the Bill that the Henry VIII powers will be used to create—guess what?—yet more Henry VIII powers!

[Sir Oliver Letwin]

Does the hon. Gentleman agree with me on the point that was discussed with the hon. Member for Rhondda (Chris Bryant)—namely, that the amendments of which he speaks could occur only after an affirmative resolution of the House?

[Stuart C. McDonald]

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

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

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

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

[Stephen Kerr]

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

[Stuart C. McDonald]

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

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

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

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

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

European Union (Withdrawal) Bill

Stuart C McDonald Excerpts

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

[Mrs Miller]

My hon. Friend has a great deal of experience in those matters, and I am sure that Ministers sitting on the Front Bench are looking at them very closely. They will be as aware as us that, as we leave the EU, the complexities, particularly regarding equalities, need careful attention. When Government Equalities Office Ministers came before the Women and Equalities Committee recently, I was pleased that they were prepared to discuss Brexit issues. I hope that in future Brexit Ministers will also come before the Committee to discuss the issues set out by my hon. Friend.

I thank my hon. Friend the Minister for taking the issue very seriously indeed. I know that he has a lot on his plate, but he has taken the time to look at the issue in detail. He should be applauded for that. I look forward to seeing the fruits of his labour on Report.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I want to speak briefly in support of amendment 137, tabled by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), who spoke so persuasively about the need to strengthen and clarify clause 6, particularly subsection (2).

If, utterly regrettably from my point of view, the UK is to leave the EU, it is important not only that there is a functioning statute book on exit day, but that it is as accessible and comprehensible as possible. The ordinary citizen must be able to understand their rights and obligations; businesses need to have clarity about the rules under which they will be trading and competing; and our courts require clear guidance about Parliament’s intentions. The rule of law and our economic interest require that. As it stands, however, there is still much work to do to achieve those aims, and that includes rectifying the lack of clarity in clause 6.

My starting point is clause 6(3), about which I do not think there is any dispute. Clearly, unmodified retained EU law should be interpreted in accordance with retained case law and principles of EU law. That is necessary to ensure that the statute book applies in the same way after exit as it did before. Immediately after that, however, we get into sticky territory, namely the status of post-exit European case law.

In the first months and years after exit, few cases in the CJEU will concern new EU rules that have nothing to do with the UK. Most will continue to relate to rules that existed before exit and that will in fact have been incorporated into the UK statute book by this Bill. In essence, such decisions by the CJEU are about how the law always was and should have been applied, including immediately prior to exit.

With apologies for moving away from highbrow discussions about the rule of law and the sovereignty of Parliament, I want to talk about the hypothetical EU widget regulations. If the EU widget regulations come into effect prior to exit, and a decision of the CJEU shortly after exit clarifies that the regulations do indeed apply to a new and cutting-edge form of six-sided widget, that decision would actually tell us and clarify what retained EU law was on Brexit day—the point at which it was incorporated into our laws. Yet the Bill appears to fudge or dodge the issue of whether such a ruling should be followed or even whether it should be given any consideration at all. Parliament is in danger of passing the buck to judges on what is actually a political decision.

Unlike his German counterpart, the UK manufacturer of a six-sided widget is unclear about where he stands and, importantly, so are our judges. Given that the widget directive is part of retained law, there is a strong argument that this Parliament should say that if the CJEU confirms in its judgement—despite it being handed down after exit—that when we incorporated the regulations they did apply to a six-sided widget, that should also be part of retained law in the United Kingdom, unless there is good reason to the contrary. That would seem sensible and desirable from a legal theory point of view and, much more importantly, from a practical point of view. If we are to make trade and competition with the EU as simple as possible, surely it makes sense for exactly the same rule, one still found in an EU regulation and one incorporated by the Bill into domestic law, to be interpreted in the same way unless there are very good reasons to the contrary. However, all clause 6(1) says is that a court or a tribunal is not bound by post-Brexit CJEU decisions, and clause 6(2) merely says it can “have regard to” such case law

“if it considers it appropriate to do so.”

Lord Neuberger says that that is not very helpful guidance for judges. Neither is it helpful for the six-sided widget manufacturer, who needs to know whether he must comply with the widget regulations and is not sure if domestic courts will follow the CJEU in deciding whether it does. Indeed, we might even find that courts in different parts of the United Kingdom could come to different decisions about whether to follow the CJEU’s decision on the widget regulations. Parliament has to do much better.

Amendment 137 provides alternative options. If there are reasons why domestic courts should not want to follow a CJEU ruling, the court could quite simply have regard to and then decline to follow the Court’s judgment. There could be very good reasons for that to happen, for example if Parliament had already decided to put in place its own separate statutory regime for six-sided widgets. Ultimately, if Parliament decides after a particular judgment by the CJEU that it wants to change retained law to take a different course, it can of course do that. However, there are many more rules where it would surely be sensible for this Parliament to leave them in place as they are and to seek to ensure consistency of application between the United Kingdom and the European Union so far as that is possible.

[Patrick Grady (Glasgow North) (SNP)]

Perhaps one reason why the Government and the Brexiteers, who appear to be paying precious little attention to anything going on in the Chamber, are not really interested is because they want a bonfire of such regulations and a race to the bottom. That is the ultimate goal of the hard Brexiteers on the Conservative Benches.

[Stuart C. McDonald]

I suspect my hon. Friend is absolutely right. My point is that there are many more rules where it would surely be sensible for this Parliament to leave in place exactly as they are, and not only that but to seek to ensure consistency of application between the United Kingdom and the European Union so far as that is possible. Clause 6(6) allows for even modified retained law to be interpreted in accordance with retained case law and principles if that is what Parliament intends.

We need a clear expression of intention that by leaving the rules unmodified and retaining the same rules in place on exit day, we are seeking for them to be applied in the same way here as across the EU. That is a much more political decision than I think the Minister accepts, which is why it should not be left to judges; it should be expressed clearly by this Parliament that that is what we want, if that is indeed what we want to happen. That will help judges, it will be good for the six-sided widget manufacturers who will understand the rules under which they have to operate, and, most importantly, it will be good for all citizens who will benefit from clarity about their rights. It is therefore imperative that Parliament makes this happen, through amendment 137 or otherwise.

[Sir Oliver Letwin]

It pains me to say this, but I think that what several of us have been trying to say, put very briefly, is that clause 6 as it stands is a frightful mess. Of course I shall vote with the Government tonight, but I very much hope that after this debate—as did not happen after Second Reading—the Government will go away and think about clause 6. If they do not, what will happen is that it will, rightly, be massacred in the House of Lords, not least by former Law Lords. Once it has been, it will be very difficult for those of us who know it is a mess at the moment, in a way I am about to describe, to support an attempt to overrule the House of Lords. I beg those on the Front Bench to take seriously the problem we are trying to expose here. Let me try to describe it more clearly than perhaps I have managed so far, although I know that several of my hon. Friends have also tried.

It is clear, from clause 5(2), that the Government accept that, in relation to the retained law, the interpretative powers of the ECJ are extremely wide. It states:

“the principle of the supremacy of EU law continues to apply…so far as relevant to the interpretation, disapplication or quashing of any enactment”.

As my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) rightly pointed out, the supreme power that can be given to a court in this land is being attributed in the Bill to the ECJ in respect of existing legislation—namely, the power to quash an Act of Parliament. It does not get higher than that.

European Union (Withdrawal) Bill

Stuart C McDonald Excerpts

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

The truth is that this Government lack the mandate and integrity properly to confront and debate the issues of principle raised by this Bill. The powers they wish to grant themselves will function only to occlude and conceal their weaknesses and divisions. A minority Government, internally divided, shaken by scandal and high-profile resignations, cannot be trusted with this powerful set of new powers. This withdrawal process will touch on every aspect of British public and private life. It is therefore necessary—as far as is practically possible—that this Chamber confers its full legitimating force to this process. The breadth and scope of delegated authority in this Bill must be curtailed and safeguards introduced to protect existing rights. The power of ministers to create wide definitions when addressing so-called deficiencies must be constrained. New committees ought to be created to scrutinise and challenge delegated powers. This House must have the final say on any ratification of the future legal and political relationship with Europe. When will the Government allow Parliament to take back control, rather than deny us the ability properly to scrutinise legislation?

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Thank you, Mr Hanson, for the opportunity to join hon. Members in their criticism of the extraordinary breadth of the Henry VIII powers contained in this Bill and the inadequacy of existing scrutiny procedures for dealing with them. I welcome the host of amendments that have been tabled by hon. Members to help remedy these concerns.

The right hon. and learned Member for Beaconsfield (Mr Grieve) helpfully identified that there are two different types of amendments that seek to improve the situation. One group seeks to limit the scope of the powers so that they are used only in appropriate circumstances and only for the specific purpose of correcting tightly defined deficiencies. A second group of amendments seeks to enhance our ability to scrutinise the statutory instruments that Ministers will make using these powers. All those ideas are welcome. If several of them were passed this evening, they could make this part of the Bill a little bit more palatable.

I will focus on a third type of amendment that throws up a different issue in relation to clause 7—an issue for which I am not sure we have found the perfect remedy. Rather than limiting the use of Henry VIII powers or strengthening oversight of them, this group of amendments would require that the Government take action to ensure that certain important provisions of EU law can operate effectively after withdrawal. After all, clause 7 expressly anticipates—in fact, the whole thing is premised on the fact—that there will be chunks of retained EU law that will not operate effectively if deficiencies are not prevented, remedied or mitigated.

The express purpose of this Bill is saving and incorporating EU law as it stands on withdrawal day, but this purpose would be undermined considerably if parts of that EU law were allowed, whether by accident or design, simply to fester away uncorrected and therefore unable to operate effectively. It is for those reasons that a number of amendments have been tabled positively requiring action to be taken, including new clauses 62 and 63 on environmental law, amendment 131 on the rights of EU citizens and amendment 385 on European protection orders. I will focus on a similar example—new clause 53.

New clause 53 would require changes to the immigration rules to retain the effectiveness of the Dublin regulation. Dublin III is far from a perfect set of rules, but it has the welcome goal of ensuring that an asylum claim is determined in the most appropriate EU member state. Its most positive feature is the ability for a person who has made a claim in one member state to seek to have that claim transferred and determined by another member state—for example, where a young asylum seeker has a sibling, aunt or uncle in that country. For all the flaws of the Dublin regulation, those provisions are surely worth saving, regardless of how negotiations proceed.

Even though the rules are retained by the Bill in theory, Dublin III would clearly struggle to operate effectively unless corrected under clause 7. To prevent that, new clause 53 is designed to ensure that those powers are used so that “take charge” requests can continue to be made in the UK. Going further, for one limited and vulnerable group, the new clause seeks to bring the definition of family contained in UK family reunion rules in line with the definition of family in the Dublin regulations. It would mean that an unaccompanied child could seek family reunion with a broader group of family members without needing to make dangerous journeys to Europe in order to claim asylum and make a Dublin request. Currently—with the exception of when joining parents—alternative options for unaccompanied asylum-seeking children under the immigration rules are too restrictive and costly. As a result, they are rarely used. As UNICEF makes clear, a failure to take action risks adding to the number of unaccompanied children forced to take dangerous journeys with smugglers and traffickers in order to reach close family in the UK. That is why new clause 53 is so important.

I turn finally to a more general question. For every amendment or new clause that we are debating today requiring that retained and incorporated EU law in a particular area must be corrected using these powers, there will be large swathes of other EU laws where there is no such requirement. The question that occurs to me is: what happens if, by oversight or choice, the Government do not fix those provisions, rendering key measures useless? What are our courts going to do if confronted, for example, by a citizen seeking to establish rights under retained EU law when that retained law is riddled with deficiencies? Is the court supposed to try to make that work? Does the person lose their ability to exercise that right? I do not think that this issue has been touched on in the debate. In short, I wonder whether we still have work to do to find the appropriate and comprehensive solution in this Bill.

Should there be a mechanism, for example, to put Ministers under an obligation or duty to ensure that retained EU laws operate effectively? Should our courts be required to interpret retained EU laws in such a way as to make them operate effectively wherever possible? Should there be a procedure to allow courts to flag up rules they have found cannot operate effectively? More modestly perhaps, do we simply need to require the Government to publish a list of all the deficiencies they have found in retained EU law and to detail what, if any, action they are taking to remedy them? That is, do we require the Government to list not only the statutory instruments they intend to table under clause 7, but what deficiencies they have identified that they are not going to rectify in that way? I am concerned that, without such changes, Parliament’s intention of retaining EU law and an efficient and effective statute book after exit day may not prove as effective as we would wish.

[Caroline Lucas]

I rise to speak to the provisions in my name, and particularly to new clause 27, which I hope to press to a vote later this evening. I apologise to Members for being absent from the debate for a couple of hours while I was in a Committee.

New clause 27 aims to preserve the high level of environmental protection that comes with membership of the EU. As we have discussed tonight, there is a very real risk that Brexit will create a big gap when it comes to the enforcement, in particular, of environmental law and standards in this country. The European Commission’s monitoring of member states’ action to implement and comply with EU law, backed up by the European Court of Justice’s ability to impose effective financial sanctions, have been an absolutely vital driver in pressing for and delivering environmental improvements in the UK. The example of clean air in London is just one case study that makes that point. In the absence of an effective domestic enforcement regime replicating the vital roles and functions currently performed by the Commission and the ECJ, it is difficult to see how the Government can deliver on their manifesto pledge to leave the environment in a better state than they found it.

On day 2 of the Committee, on 15 November, we had a good debate on the case for fully transposing the EU environmental principles into UK law. The debate was ultimately fruitless in terms of amending the Bill, but we heard a great deal from both sides of the Chamber about the importance of the EU environmental principles to the future protection of the environment in this country.

Perhaps most significantly, environmentalists such as myself were encouraged by a rather remarkable double act, with nods and comedic timing, of the right hon. Member for West Dorset (Sir Oliver Letwin) and the Secretary of State for Environment, Food and Rural Affairs. From that, we learned a little more about the Secretary of State’s plan, first announced on 12 November, to consult on a new independent statutory body to

“advise and challenge government and potentially other public bodies on environmental legislation…stepping in when needed to hold these bodies to account and enforce standards.”

More to the point, we were led to believe that the Secretary of State now intends to introduce an environmental protection Bill to establish an environmental protection body with prosecutorial powers and independence from Government that is charged with policing and enforcing a national policy statement incorporating the EU environmental principles.

That amounts to a welcome recognition on the part of the Secretary of State of the risk of an ever-widening governance gap on environmental protection after the UK leaves the EU if there is not a domestic enforcement regime. Taken at face value, it also seems to be an acknowledgment that the new environmental protection body must be absolutely independent of Government; must be prosecutorial and investigatory so that it can hold the Government and other public bodies to account, including through the courts if necessary; and must be robust and durable so that it cannot easily be abolished or have its functions eroded by stealth.

However, what we still do not know is whether this is a concrete plan that will soon be put into practice so as to ensure the protection of environmental standards in the UK from March 2019, or something that the Secretary of State alone ruminates about while in the bath.

European Union (Withdrawal) Bill

Stuart C McDonald Excerpts

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[Mr Speaker]

I call Stuart C. McDonald—fairly briefly. The hon. Gentleman has amendments down and must be heard, but I know he will be sensitive to the importance of the Minister having adequate time to respond to all that has been said, so I am sure that he will be on his feet for only a small number of minutes.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Thank you, Mr Speaker. I want to speak briefly to amendments 55 and 56 and to probe one simple issue: in short, what happens if there is a failure to correct a deficiency in EU law, so that it cannot operate effectively after exit, and how can we maximise the chances that such a thing does not happen?

We have had plenty of debate on how we can restrict Government powers to correct deficiencies so that such powers cannot be used to undermine the incorporation of EU rules and so that we do not end up with some sort of watered-down or dysfunctional version of the original. However, perhaps the more realistic possibility, and just as much of a danger, is that we end up with a watered-down or dysfunctional version of EU rules not because of the inappropriate use of those powers of correction, but because of a failure to use them at all in appropriate circumstances, either by accident or design, or if various incorporated rules and regulations are simply allowed to fester away uncorrected and unable to operate effectively. So, I asked at Committee stage, “What happens if there is a citizen before a court in this country, seeking to establish rights under retained EU law when that retained EU law is actually riddled with deficiencies? Is the court supposed to try and make that work? Does the person simply lose their ability to exercise that right?”

My amendment 55 simply requires the court to interpret retained EU law—as far as possible—in such a way as to make it function effectively, borrowing shamelessly from the language of the Human Rights Act. I fully acknowledge that that in itself would not take us very far, but it is there to prompt a response from the Government. What should the court do in those circumstances? There are alternative courses of action that this Parliament could take, not just in amending clause 6 but in other parts of the Bill. We could expressly require EU law to be interpreted so as to be given effect “as if the UK were still a member state”, with further provisions about how that should be done. We could put in place a procedure to allow courts to flag up rules that they have found cannot operate effectively. We could put Ministers under an obligation or a duty to ensure that retained EU laws operate effectively; indeed, amendment 57 and new clause 19 are of that nature. Alternatively, as amendment 56 suggests, we could simply require the Government to publish a list of all the deficiencies they found in retained EU law that they are not seeking directly to rectify.

In short, the task of ensuring that we have a functioning rule book or statute book on exit day is twofold. Parliament must protect important rights, not only by preventing inappropriate use of Henry VIII powers, but by providing a means of ensuring that deficiencies are rectified where necessary, either by the Government, or by Parliament or by our courts, and I still think we have a long way to go in that regard.

[The Solicitor General]

I wish to speak in support of amendments 37 and 38 in the name of my colleagues in Government.

I will try and answer the question that was put to me by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), who has been getting frustrated in these debates about the somewhat technical nature of ministerial responses. Well, this is a very technical Bill. Like its illustrious predecessor, the European Communities Act 1972, it is a Bill of constitutional importance; it is a framework Bill. It is not—I stress this, because it is most important—it is not a Bill that seeks to convey a policy or a particular aspect of policy that we have discussed today. It is a framework that is designed to ensure that the law that is applied up to exit is downloaded in as clear and proper a way as possible because, to be consistent with the rule of law, the law needs to be accessible, it needs to be clear and it needs to be well understood. That is the fundamental basis of my concern about today’s amendments—that in seeking to retain the charter of fundamental rights in domestic law after exit, not only do we sow potential confusion but we fundamentally misunderstand what that charter means in the first place.