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.