European Union (Withdrawal) Bill

Theresa Villiers Excerpts

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

[Wera Hobhouse]

The new clause has been promoted by the Equality and Human Rights Commission. I take it that the commission has done careful research into how it would provide an extra guarantee that is not currently provided. The hon. and learned Gentleman should look at it carefully to understand how it is meant to work, but it is an overarching tool that, as I understand it, we currently do not have. As I said before, as a non- legal person, for me the most important thing is the safe- guarding of our equality laws and the need to match what has been done so far at European and international level.

Brexit is increasingly nothing to do with what leave politicians promised to the people. I fear it is becoming an ideologically driven process to turn this country into some sort of deregulated free-for-all, in which the progress we have made over the past four decades to protect individuals from exploitation and discrimination, in tandem with our European neighbours, is sacrificed on the altar of sovereignty. The British people did not vote to give away their fundamental rights and protections. If Parliament does not amend the Bill, let nobody claim that this is the will of the people.

[Theresa Villiers (Chipping Barnet) (Con)]

I apologise for my brief absence from the Chamber during the debate—it was because of the excitement of a Delegated Legislation Committee.

I wish to say a few words about why I feel unable to support the proposals to bring the charter of fundamental rights into UK law, but before I do so I acknowledge the huge importance we should all place on the scrutiny of this historic piece of legislation. The Bill is of course a critical part of the implementation of the huge decision made by the people of the United Kingdom in the referendum last year, and it obviously has a crucial role to play if we are to avoid a regulatory gap in relation to aspects of our law that are currently covered by EU legislation. Although I do not feel able to agree with the new clauses and amendments we are debating, I fully respect the intentions of those who have tabled them.

At a time of great change for this country, it is important that we find ways to work across party divides to come together to make a success of the process of implementing the referendum result and leaving the European Union. My goal for a successful outcome is a new partnership with our European neighbours, with which I hope those on both the leave and remain sides of the debate can be comfortable. It will, of course, be important for Ministers to listen to a spectrum of views before the final terms of our departure from the EU are settled, and I know they are strongly committed to doing that.

--- Later in debate ---

[Theresa Villiers]

That was certainly the stated intention when the charter was originally drafted, but the judicial activism of the ECJ has seen the scope of the charter expanded. Essentially, what we are talking about is the division of power between our courts and our legislature. I do not believe that we have the national consensus to deliver such a significant change to our constitution as to enable our domestic courts to strike down our laws.

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

My right hon. Friend talks about the expansion of the charter through the role of the ECJ. Can she give us an example where it has actually been the charter that has caused that expansion? In reality it is the European convention on human rights rather than the charter of fundamental rights that has tended to lead to an expansion.

[Theresa Villiers]

Of course, the key expansion as far as the United Kingdom is concerned was the confirmation by the European Court of Justice in the Åklagaren v. Hans Åkerberg Fransson case that the charter did actually apply to the United Kingdom and that the opt-out that was supposedly obtained by Tony Blair was not valid.

That brings me to my final reason for scepticism about the charter and the amendments. I was an MEP during the period when the charter was drafted in the EU constitutional convention with a view to inserting it in the abortive EU constitution.

[Lady Hermon]

As a former and, I have to say, very distinguished Secretary of State for Northern Ireland, who did a really good job in that office—I mean that most sincerely, although I rarely have the opportunity to say it—the right hon. Lady will know that the UK withdrawing from the charter of fundamental rights will have an impact on the Good Friday agreement and on the perception that half of the community in Northern Ireland will have of respect for human rights, rightly or wrongly. Will the right hon. Lady therefore encourage the Government to draft a Bill of Rights for Northern Ireland, which is, of course, also a key part of the Good Friday agreement?

[Theresa Villiers]

I can assure the hon. Lady that this Government and, I am sure, all successive Governments will remain strongly committed to the Good Friday agreement and to the protection of individual rights. As she will appreciate, of course, the agreement expressly referred to in the Good Friday agreement in relation to human rights is the European convention on human rights. However, I fully understand her point of view on this matter, and it will always be important for us as a Chamber to respect individual rights. The tenet of my speech is that we do not need the charter to enable us to do that. We have extensive legal frameworks available to us as a Parliament, and through our judiciary and legal system, and that will ensure that we properly protect our citizens, whether in Northern Ireland or in the rest of the United Kingdom.

Let me turn to my final reason for concern. I well remember the clarity of former Prime Minister Tony Blair about the fact that the charter would not be given legal force. As far back as 2000, the Prime Minister and the Europe Minister of the day stated that very clearly for the House. In 2003, the Labour Government’s lead negotiator on the convention, Peter Hain, said there was no possibility of the Government agreeing to incorporate the charter. In 2007, Tony Blair told Parliament that we had an opt-out from the charter, and this approach was supported by a number of pro-EU groups, such as the CBI. Even my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) expressed scepticism about the charter and described it as “a needless diversion”.

While the ECJ may since have ruled that the opt-out secured by Mr Blair was nothing of the sort, we now have the opportunity to see those promises fulfilled. We have a long history of protecting the rights of the individual against the arbitrary exercise of power by the state. We have ample means to do that in the future, with hundreds of years of case law and statute establishing strong principles of accountability in our unwritten constitution. We can legislate in the future if we ever find any gaps in our current framework. We do not need the charter to protect our citizens, and I appeal to Members not to accept the amendments being debated today.

[Kerry McCarthy]

It is a pleasure to see you in the Chair, Mr Hanson. I rise to support amendments 101 and 105, tabled in my name. They relate to the debate we had about environmental principles on day two of the Bill’s Committee stage, and particularly about new clauses 60 and 67, and new clause 28, which I also tabled.

As it stands, UK laws that arise from EU laws such as regulations and directives and that do not comply with the general principles of EU law can be challenged and disapplied. Administrative actions taken under EU law must also comply with the general principles. I say that by way of clarification, because I think a lot of people are trying to follow the debates in this Chamber during the Committee stage, and they are perhaps wondering what on earth we are talking about, so I am trying to make things as simple and as clear as possible for the public out there—and perhaps for some of us in the Chamber as well.

That is the situation while we are members of the EU. Post Brexit, though, schedule 1, as I interpret it, places unnecessary and unjustified restrictions on how these principles will be applied. That is what my amendments seek to rectify. Paragraph (2) states that retained principles will be only those that have been recognised or litigated by the Court of Justice of the EU in a case decided before exit day. Only those principles will be retained in domestic law; others will not, even if recognised in treaties. In the debate on day two, the Minister said in response to new clause 28 that this was because we needed a cut-off point and could not have ongoing interpretation of directives that would affect the situation in the UK. However, I would argue that there is still a real lack of clarity, and a danger that if we allow only principles that have been litigated on to apply after exit day, the non-controversial ones that people do not have a problem with will end up falling away, while only the controversial ones are retained. It is also unclear whether these general principles include environmental principles, as the term “general principles” has not been defined by the ECJ or by the treaties. If environmental principles are not explicitly recognised as general principles, they could be lost entirely. I hope that the Minister can give us a bit of clarity on that.

Paragraph 3 of schedule 1 explicitly limits the legal remedies available when general principles are contravened. Under this paragraph, UK courts will no longer have the power to disapply domestic legislation on the grounds that it conflicts with these general principles. They could only be used like the pre-exit case law of the CJEU to inform the interpretation by UK courts of retained EU law. Paragraph 3(2) therefore appears to narrow the scope for judicial review that currently exists. In the previous debate, some of my colleagues argued very eloquently as to the importance of judicial review in environmental cases but also highlighted the fact that it is often inadequate, and increasingly so, given the cap that is imposed. Paragraph 3(2) would further narrow the scope of judicial review and make it harder for the public to hold the Government to account. As discussed last week, it is vital that the courts are able to enforce the environmental principles.

Amendments 101 and 105 speak to those points. Amendment 101 clarifies that all existing principles of EU law will be retained in domestic law, whether they originate in the case law of the European Court, EU treaties, direct EU legislation or EU directives. It also makes it clear that the key environmental law principles in article 191 of the Lisbon treaty are retained. Amendment 101 therefore expands the meaning of general principles to specifically include the environmental principles. Following on from that, amendment 105 seeks to retain the right of action in domestic law for the public to hold the Government to account for their breaches of the principles.

I know that the Government are proposing an environmental principles policy. I have lots of questions about how that would operate—whether it would be on a statutory footing and so on—but at this stage I ask the Minister to confirm whether they will publish at least an outline version of what that principles policy would look like while there is still time to consider it and its implications for this Bill. So far in Committee, Ministers have been very fond of asking us to take their word for it, but I am simply not prepared to do that: I want to see what these policies would look like.

Will the Minister also explain the Government’s objection to the idea of having internationally recognised principles of environmental law enshrined in UK statute? The Government could include the basic principles in UK law by accepting my amendments. Not least, that would provide us with much needed reassurance that the Environment Secretary will win out against the International Trade Secretary in ensuring that future trade deals with countries such as the US will not lead to imports of chlorine-washed chicken and hormone-pumped beef on our shelves. The Environment Secretary has encouragingly said that the UK should say no to chlorine-washed chicken from the US and that we are

“not going to dilute our high food-safety standards or our high environmental standards in pursuit of any trade deal”.

But as was pointed out during last week’s debate, the environmental principles set out in the EU treaties have been instrumental in decisions such as the EU ban on imports of hormone-fed beef, the moratorium on neonicotinoid pesticides, and the control of the release of genetically modified organisms in the EU.

The debate on day two saw a degree of political consensus emerging around the value of environmental principles such as the precautionary principle, as well as in other areas, particularly the Environment Secretary’s mooted plan for a new independent body to hold the Government to account. I hope that when we consider the governance gap on a future day, we will hear more about his plans for that body. I think we also got confirmation from the Environment Secretary, although it was only a nod from a sedentary position, that he intended to follow the Environmental Audit Committee’s recommendation and introduce an environmental protection Act. I hope that we will hear more about that and the timetable for it. I understand that the much delayed 25-year environment plan may be with us in the first quarter of next year, a fisheries Bill is coming from the Department for Environment, Food and Rural Affairs and the agriculture Bill is due, I think, after the summer recess. If the Government are going to introduce an environmental protection Act before exit day, they will have their work cut out for them. I would be grateful to hear a bit more about that.