European Union (Withdrawal) Bill

Tommy Sheppard Excerpts

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

[Tommy Sheppard (Edinburgh East) (SNP)]

Some Government Members seem perturbed at the description of clause 7 as a power grab, but given the breadth of its powers and the absolute and unqualified way in which they are presented, the legislation represents a transfer of political authority from the elected House of this Parliament to the political Executive of Government on a scale not seen in modern times. Any democrat should be concerned about that, but what concerns me even more is Ministers’ justification for why such powers are necessary. They are effectively saying that this is now the only way that they can achieve Brexit and get the job done. That speaks volumes about the woeful inadequacy of the Government’s preparations for leaving the European Union.

It is no surprise: we all know and, indeed, have always known that the repatriation of European law and its integration into UK law would be complicated. It will throw up inconsistencies and anomalies and it will require further legislation. That is no secret. It is perturbing that 15 months after the referendum, having built a brand new, shiny Government Department, committed hundreds of millions of taxpayers’ money to the process and instructed thousands of civil servants on the job, the best the Government can come up with is, “Trust us; it will be all right on the night.” Where is the schedule of the principal EU laws that are to be repatriated, indicating the effect on domestic legislation and bringing forward legislative amendments for the House’s approval in order to make it work? Where is the schedule—the plan? There is none. It is a shocking abrogation of the Government’s responsibility.

If clause 7 is a power grab by the Executive, clause 11 is a power grab by the British state over the United Kingdom’s devolved national Parliaments. Let me explain it this way to my friends in the Scottish Conservative and Unionist party. Twenty years ago to the day, we voted to establish a national Parliament in Scotland. Our predecessors in this place went on to decide what its powers should be. If this country had control over fishing and agriculture back then, there would have been no dispute whatsoever: those powers would have been given to Holyrood. They would not have been included in schedule 5 to the Scotland Act 1998, which sets out the reserved powers. It would have been seen as an automatic, simple thing to do, yet that is not what is happening under the Bill, and we have to ask ourselves why.

We are being invited to trust Ministers, but I want to withhold my trust, because there are alternatives that they could have considered. They could simply have repealed the relevant bits in the 1998 Act and changed schedule 5. They could have repealed the measure and put in a new qualification on the Scottish Government to comply with whatever international agreements the UK forms in the future, or—here is the kicker—they could have said in the Bill, “This is our intention to devolve these powers,” and they could have put a time limit on that, after which it would automatically happen. The absence of that leads me not to trust the Government.

[Drew Hendry]

Does my hon. Friend agree that it would be incredible if the Scots Tories voted for this Bill to take powers away from Scotland, when even their leader, Ruth Davidson, says that this could do great economic harm to the UK?

--- Later in debate ---

[Tommy Sheppard]

I absolutely concur with my hon. Friend. I say to colleagues opposite: do not let yourselves be played for fools. It is quite clear that there is no intention to devolve. The reason why we warn about this Bill being a danger to devolution is that it is against not just the letter, but the spirit of the Scotland Act 1988, which achieved devolution.

[Bill Grant]

I thank the hon. Gentleman for giving way. Will you tell the House what powers will be taken away from Scotland with this Bill? Will you detail the powers that we are taking away—

[Mr Speaker]

Order. I can do no such thing, but the hon. Member for Edinburgh East (Tommy Sheppard) might be able to do so.

[Tommy Sheppard]

I find it incredible—Members on the Government Benches have had the answer to this question on three occasions. The point is that there is an opportunity in this place, in this month, in this debate to transfer powers from Brussels to Holyrood, and it is not being taken. Government Members invite us to trust them, but I fear that we cannot do so; if we could, they would have made clear their intention in the Bill. That is one reason why I will vote to decline giving this Bill a Second Reading tonight.

[Bill Grant]

rose—

[Tommy Sheppard]

I ask the hon. Gentleman to please sit down, as time is very short.

Finally, many Members have stood up and said how their constituents voted over Brexit. Let me put this on the record: the people who sent me to this place to speak on their behalf voted by 74% to retain their European citizenship and against the process in which we are now engaged. The people of my country voted by 62% to retain their European membership. We were told in 2014 that the independence referendum was not a matter of Scotland dissolving itself and its citizens becoming part of another country. It was about a political union between Scotland, England, Wales and Northern Ireland. Within that Union, according to David Cameron, the views of Scotland would be respected. I call now for that respect to be shown to Scotland and to the Scottish Government. I know that the UK will leave the European Union—that much is certain—but what happens next must be different in different parts of the United Kingdom; it must be different in Scotland, so that Scottish interests can be protected. I say to the Conservative and Unionist party in Scotland: you may have a majority in this vote, but you are alone tonight in Scotland in letting this process go through.

European Union (Withdrawal) Bill

Tommy Sheppard Excerpts

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

[Robert Neill]

I think the most important principle is legal certainty. It may well be very sensible for us to start to remove, as soon as possible, bits of retained law that we do not want to keep, but it seems to me to be equally implausible to retain something without following through on the logic from whence it comes. I recognise my hon. Friend’s point, but the issue, as my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) pointed out, is one of the Bill’s own making. I hope that the Government will table an amendment—before the Report stage—to remove these internal contradictions sooner rather than later. I think we all want to be in the same place, but justice requires not only independence of the courts but a proper framework in which it can operate. Above all, it requires certainty. The Bill as it stands runs the risk of creating uncertainty, and that cannot be in anybody’s interest.

I have been struck by the tone of the responses we have had from the Government Front Bench so far, but it is really important to stress that this is a matter of very significant principle. We wish to give the Government the best possible fair wind. I have no doubt whatever about the intentions, credit and integrity of the Solicitor General, who will reply to the debate shortly. What he says will weigh very heavily with many of us. I am sure he will do something that is constructive and helpful, and will help to improve the Bill. This is an important point that I wish to put on the record, because if there is not something of that kind, we will have to return to the issue as the Bill progresses. I hope that that will not be necessary. I believe it will not be necessary, but it is important to stress how fundamentally significant it is. These matters may seem technical, but they are vital to the underpinning of a sound piece of proposed legislation going forward.

[Tommy Sheppard (Edinburgh East) (SNP)]

I support those amendments that seek to ensure that the charter of fundamental rights is not exempted when we transfer powers from the EU after Brexit. Like many people I expect, I have received a lot of correspondence from constituents, and I wanted to start by reading from one—because time is short I will just read the last section of a letter from one of my constituents, Andrew Connarty:

“I feel that the EU and its legislative and judicial bodies protect me as a citizen and have a process of checks in place to protect my human rights, my legal rights and provide me with security. A lot of conversation in the media covers the rights of EU citizens in the UK who are foreign nationals, but what about the rights of EU citizens in the UK who are British nationals?”

Andrew Connarty is one of the great number of people in this country who are fearful of what is about to happen. For them, the process of leaving the EU is not some great liberation or removal of an alien superstate that oppresses them and over-regulates them. They see this as a loss of something of themselves; they see themselves as being diminished and lessened by this process.

Some on the Government Benches will say, “Well, that view does exist, but it is the view of a small liberal elite”. Indeed, a Member earlier tried to taunt a colleague by suggesting that the vote for remain in her constituency could not possibly have been motivated by concern about the charter of fundamental rights. I accept that the great mass of people are probably completely unaware of what particular rights we are talking about, but that does not mean they are unconcerned about them. Joni Mitchell probably summed it up best with the line,

“you don’t know what you’ve got

‘Till it’s gone.”

The reason is that by their very nature political rights do not put obligations on the rights holder—they do not have to be defended and claimed every day; they put obligations on everyone else. We all have to respect the rights of others. In particular, private corporations and public institutions have to respect the rights of others. It is not until they are changed and that relationship alters that people understand that something has been taken away from them. That is why it is absolutely vital that we educate people about the process now happening.

There was some debate about whether the rights in the charter are substantial at all, about whether they mean very much and about whether they are covered elsewhere in legislation. In 2006, this Parliament established the Equality and Human Rights Commission to advise us on such matters. I have read its briefing—I suspect most have—in which it cites clear examples of articles in the charter that are not replicated in other forms of legislation and states that, if the charter is not transferred or incorporated into British law, these rights will be lost. They include—I will not read them all: article 22 on child labour; article 8 on the right to be forgotten on the internet; article 26 on independence for disabled people; and article 24 on the access of children to both parents. These are rights that we have now that we will not have if the charter does not come over post Brexit.

It is not necessary to lose these rights in order to achieve Brexit. I say to the Brexiteers: I am not one of you but you can have Brexit without losing these rights. It is entirely possible. We do not need to do this, so why are we discussing it at all? The Minister said earlier that it makes no sense to have the charter if we are not a member of the EU, because it refers to the EU, yet the entire canon of European law is being taken over and incorporated into British statute, and this charter goes along with it to give citizens rights in respect of it. It makes total sense, therefore, to bring the charter over in the process of repatriating these powers.

There has been talk that it would be silly to bring the charter over because it would create anomalies and inconsistencies with other parts of the Bill, but the Bill already recognises that there are a million anomalies in the process and makes provisions to deal with them. We wonder, then, what is so special about the charter that it cannot happen there, too. Leaving that to one side, however, the most telling argument, as colleagues have said throughout the last six hours, is surely that it is operational at the minute. Why is our legal system not grinding to a halt under the pressure of these contradictions if they are so great? The truth is they are not so great. It works at the minute, and there is no reason it could not continue to work beyond 2019.

In the absence of a rational argument for the retention of clause 5 and schedule 1, I am compelled to find myself reaching the same conclusion as the right hon. and learned Member for Rushcliffe (Mr Clarke): what is happening here is pure politics. There are those on the other side who will be satisfied by being thrown this bone, and, as the right hon. and learned Gentleman put it himself, the idea of being able to get rid of a provision that includes both the word “Europe” and the word “rights” creates a double salivation, but I do not think that it just about sating those who are so Europhobic that they will get pleasure from this; I think there is something else going on as well.

The hon. Member for Eddisbury (Antoinette Sandbach), who is no longer in the Chamber, said earlier that the Government did not intend to remove or weaken our human rights, and I take that at face value. The Government have certainly not come here and said that that is their intention. In fact, no Members—or almost none—have said today that they want to remove people’s human rights, to weaken protection at work, or to lessen consumer protection laws in this country, although I rather fear that the hon. Member for Gainsborough (Sir Edward Leigh) nearly let the cat out of the bag when he referred to “the wrong people” having rights in the charter.

The hon. Gentleman talked about the repatriation of powers so that he could have “real human rights” in this country. I dread to think what he means by “real human rights”. I find him an honourable fellow and I am sure that he means no malintent, but I know that there are plenty of people in our society and in our community who will take advantage of any roll-back of civil and human rights protection to ensure that our religious and political freedoms are constrained so that they can adhere to theirs. I think we need to be eternally vigilant, and I hope very much that the Government will feel able to think again.

I say this to those in the centre ground of the Tory party: “If you are just trying to keep the good ship together and keep every faction on board, and if you think that by giving this concession on human rights you will shore up the Government’s support, remember that your former leader David Cameron thought he would be able to do that by having a Brexit referendum in the first place, and look how that has worked out.” I sincerely say to them, “Once bitten, twice shy. Please think again.”

[The Solicitor General]

It is a pleasure to follow the hon. Member for Edinburgh East (Tommy Sheppard). Let me take this opportunity to assure him yet again that our commitment to rights and freedoms remains absolute. I spent nearly 20 years at the criminal Bar dealing with the liberty of the individual. Indeed, I think I was a human rights lawyer before we even coined the phrase, as were many other Members on both sides of the House.

The point has already been made that our rights and freedoms long pre-date modern developments, but modern developments have no doubt helped to sustain, improve and enhance the range of those freedoms. The fundamental question that we seek to ask about the charter is whether, in the final analysis—as we are no longer to be members of the European Union—it adds anything relevant or material to the sophisticated and developing body of law that has evolved over generations. I do not think so, and I have reached that conclusion after extremely careful thought.

It is tempting, after a long debate, to try and treat this as a Second Reading wind-up, but we are far from that. Other Members are anxious to take part, and I am mindful of the time. I will therefore be true to the principles of debate in Committee, and deal with schedule 1, which I hope will be agreed to. In doing so, however, I will address the various amendments that have been tabled on pages 8 to 12 of the amendment paper—which is still the same size although we are now on day three of the Committee stage, and I am pretty confident that that will remain the case.

European Union (Withdrawal) Bill

Tommy Sheppard Excerpts

Committee: 4th sitting: House of Commons
Monday 4th December 2017 Commons Chamber

[Mr Jack]

I will come to that. That is going to happen anyway—by legislative consent motion.

Clause 11 preserves the current devolution settlement. Holyrood will not be stopped doing anything that it can do now, and nor will it automatically become able to do anything that our current EU membership stops it doing. This is simple and easy to understand, and it provides a solid basis for the talks currently taking place over which EU powers will be devolved.

[Tommy Sheppard (Edinburgh East) (SNP)]

I think the hon. Gentleman misunderstands what is happening. At the minute, the EU has legislative competence in 111 devolved areas, to ensure compatibility with the treaty on European Union. After Brexit, that will not be the case; what is being proposed is that the UK Parliament should be given legislative competence over these devolved areas that it currently does not have. That is a material change and constraint on devolution.

[Mr Jack]

That is correct—that is what we are negotiating about. The 111 powers are already devolved at implementation level. That exists at the moment. The question is about where the frameworks sit in respect of the powers that come back from the EU. We have to look at our internal market and how we would better run our country.

On issues such as food standards, it makes complete sense for us to have one framework for the United Kingdom, so that everyone can participate in the trade deals that we do. If we had different rules and regulations in different parts of the United Kingdom, our overseas trade agreements and internal market would fall apart.

--- Later in debate ---

[Tommy Sheppard]

I was going to reassure the hon. Member for Stirling (Stephen Kerr), who is no longer in the Chamber, that, given the lateness of the hour, I can do nothing other than be reasonable and mild mannered in my presentation. He seemed fearful that SNP Members would go berserk and worried that we were putting our case with too much passion. Let me try to put this as reasonably as I can.

I want to agree with Members who have talked about the positive cross-party nature of what is happening. There are three parties on the Opposition side of the House that differ quite significantly on our preferred constitutional outcome or endgame for Scotland, but we are united in trying to defend the gains of devolution that have been made during the past 20 years. Indeed, I think that some of the Scottish Tories might feel that way too, given the discussions we have had in the Scottish Affairs Committee. They seem too timorous to exercise that conviction by going through the Lobby with us tonight, but perhaps they will be persuaded in the fullness of time.

By way of context, we need to remember two things. One is how the interplay between the referendums of 2014 and 2016 in Scotland affects this debate. I was on the losing side in 2014—I lost the Scottish independence campaign—and I accept that result. However, it is important in understanding why Scotland voted to remain in the United Kingdom to look at some of the assurances that were given by the people who won that campaign, because that affects this debate. I am going to talk not about the obvious one, which is what was said about EU membership itself, but about two other things.

First, all parties that campaigned for a no vote in the 2014 referendum went out of their way to stress that there was no threat to the devolution settlement, and that they would defend and extend it. The other assurance given was that should Scotland vote to remain in a political Union with England, Wales and Northern Ireland, this was not a matter of one country being subsumed into a much larger neighbour, but the creation of a partnership of equals—a multinational yet unitary state—with the views of Scotland therefore respected in any future debates. I am now calling to collect from this Government on both their respect for and commitment to devolution because, as far as I can see, the way in which clause 11 is currently written means that it recognises neither of those points. It is regrettable that at this relatively advanced stage of our discussions on the Bill, we still do not have any agreement whatsoever about some basic things.

The other factor we need to remember by way of context is of course the debate about devolution itself. I was heavily involved in the campaign that led to the creation of the Scottish Parliament, arguing for yes, yes in 1997. I was not in the House when Members debated the Bill that became the Scotland Act 1998, but I observed the proceedings and we can read the transcripts. We know that Parliament, led by the late Donald Dewar, clearly took a maximalist position. It basically said that everything should be devolved unless there was a case for its not being so, which is why the 1998 Act lists not the powers that are devolved, but the powers that are reserved.

If we had not been in the European Union when Parliament was debating the Act, how many of the 111 areas of responsibility would have been reserved and how many would have been devolved to the Scottish Government? The truth is that practically all of them would have been devolved without question, because there would have been no compelling case for reserving them. I think that people misunderstand the nature of the debate when they talk about the transfer of competences from the EU to the UK following Brexit.

Let us be quite clear that the reason why the European Union currently has some legislative competence in devolved areas is to ensure compliance with the treaty on European Union. That is what this is about. If Brexit goes ahead and we come out of the European Union, that, de facto, will not be required, so whatever the UK Government say about taking on these areas of competence, it will not be about complying with the terms of the treaty on European Union. The only thing it can be about, given that we already have a single economy in the United Kingdom, is convergence on policy. The transfer raises the possibility that we will move from compliance with international agreements to compliance with domestic policy. That is what I mean by a power grab, because it represents a severe potential constraint on the ability of the Scottish Parliament to legislate and act in its devolved areas.

Ministers will say, “That’s not the intention. This is a drop-off point for the powers so that we can then decide the best way for them to go to their final resting place.” I have to say to them that we are politicians, not psychics. We have to deal with what is written in the Bill that they have brought before us, not their intentions for what might happen as they go towards their endgame. What is written in the Bill is most clearly not what is being argued for by Ministers. If that were the case, we would have a schedule by now outlining which of the 111 powers can go straight to the devolved authorities on exit day, which of them definitely need to be reserved in the context of the 1998 Act, and which of them need further exploration through some sort of process, but we have heard nothing about a single one of them.

I say to Ministers that, even from a public relations point of view, would it not have been sensible to at least chuck a few of these powers the way of the devolved Administrations? No. 9 on the list is about blood safety. What is it about the Scottish health service and blood transfusion service that they do not trust? Why on earth would blood safety need to be reserved to the UK? Energy efficiency is another power on the list. Is it the end of the world if Scotland pioneers aspects of efficient energy use and perhaps leads the way in the UK? How is that a threat to the Union? Why do Ministers need to keep those powers? There are other examples that illustrate the ridiculousness of arguing that there should be even a temporary drop-off of these powers at Westminster. Such powers should clearly go to the devolved Administrations.

I am left wondering why this is being done. The obvious first answer is the phenomenal degree of administrative competence involved. I think that there is malintent on the part of some Conservative Members, but probably not on the part of its Front Benchers. However, I think Ministers have got themselves into a situation in which, because they have been incapable of producing a plan, they simply have no option but to say, “Trust us for now; we’ll do the best thing in the end.” It is very difficult for this Parliament to accept those assurances.

I think there is another red herring with the idea that a further reason why these powers need to be retained and examined further is that there might otherwise be interference with the United Kingdom’s ability to strut the post-Brexit globe in its ambition for “Empire 2.0”. There is a fearfulness that people in Scotland or Wales might act like the Wallonians and try to frustrate the creation of an international trade agreement. How ridiculous is that? Would it really matter if the Scottish Government introduced a policy that said, “We don’t wish to have genetically modified food in our food chain”? How is that a threat to an international trade agreement? All that would need to be done would be simply to specify that that was what people would need to deal with in Scotland, and that anybody wishing to sign the agreement would, quite reasonably, be able to do so.

The only way that that could become a threat to post-Brexit deals would be if there was a suggestion that the Scottish Government and the Welsh Assembly should take to themselves a power to veto a future UK international trade agreement, but no such power is being discussed. It is ridiculous that we should not by now be discussing which powers are going where, rather than arguing that nothing can be done apart from a power grab by the Westminster Government.

Finally, the common frameworks that we need for these 111 areas are going to be entirely different, depending on the individual area. In some cases, it might just be a simple matter of agencies north and south of the border talking to each other and sharing best practice. There are probably very few areas that actually require a full-blown statutory regulatory framework across the United Kingdom.

[Chris Skidmore]

indicated assent.

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

indicated assent.

[Tommy Sheppard]

The Ministers are nodding their heads. If that is the case, why have they not identified them? Why not bring forward proposals for dealing with the joint arrangements? I do not attribute malintent to those on the Government Front Bench, but there are people within the Conservative party—I see that the Scottish Tories have gone home—[Interruption.] I am sorry; they have left the hon. Member for Gordon (Colin Clark) as the lone representative. [Interruption.] Two of yer! I withdraw the remark; only 80% of them have gone home.

Conservative Members talk about the process we are engaged in. We are engaged in a process of considering amendments to a Bill. I say to the Scottish Conservatives that they should think again about going through the Lobby with the Government tonight, because if they do so, they will give the Government succour, rather than putting pressure on them to come forward and make agreements and changes. If that happens, it will provide sustenance to those Conservative Members who never believed in devolution in the first place, and who will use Brexit as an opportunity to roll it back and take power to the centre.

European Union (Withdrawal) Bill

Tommy Sheppard Excerpts

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

[John Redwood]

That may be hanging a bit too much on this piece of legislation. I think this is a wider issue, which Parliament may need to consider, so I was not going that far in my recommendation. However, Ministers would be well advised, if by any chance they did make a mistake in a draft instrument, not to do what the previous Government did and just drive it through, but to accept that they needed to withdraw it and to come back with a corrected version, which would make for better order.

The Bill as drafted, with the amendments to provide a process to make the task of parliamentary scrutiny manageable, is a perfectly sensible package, and I look forward to hearing sensible promises from Ministers on the Front Bench, who I am sure will want to exercise these powers diligently and democratically.

[Tommy Sheppard (Edinburgh East) (SNP)]

I rise to speak to amendments 264, 222, 73, 234, 239, 240, 266, 269 and 272, in the name of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford), and amendment 233, in the name of my hon. Friend the Member for Airdrie and Shotts (Neil Gray). I will also speak in general terms to amendments 206, 268, 271, 274, 216, 265, 207, 208, 205, 267, 270 and 273, in the names of my hon. Friends, which are grouped for debate today, but which will be voted on tomorrow. May I also say that I hope the hon. Member for Cardiff South and Penarth (Stephen Doughty) will push his amendment 158? It was debated earlier in Committee, but it is very germane to this debate. [Interruption.] I read that list out because I could not possibly memorise it.

As I said on Second Reading, we are in a dilemma of our own making. We are discussing the possibility that all these powers should be given to Ministers simply because we have not adequately prepared for the process of leaving the European Union. It is three months now since Second Reading, and we do not appear to have gone one step forward in terms of knowing what the effects of that process will be on the body of legislation that already exists in the United Kingdom.

[Anna Soubry]

It is really quite important to understand that this is the process of leaving the European Union, and it has nothing to do with being unprepared in any way. It was always known—well, in as much as we ever knew anything about Brexit—that this was the sort of thing we would have to do to convey this huge body of EU law into domestic British law, and, on that, we are all agreed.

[Tommy Sheppard]

The right hon. Lady has much greater faith in the Government’s intentions than I perhaps do. What I am trying to suggest—I thought she might possibly agree with me—is that, by this stage in the process, we ought to have some definition of which Acts of Parliament will require amendment, because there are anomalies in them with regard to the body of EU retained law, and we ought to have narrowed down the number of areas in which we have to give Ministers the power to use their discretion and to bring forward changes through delegated legislation to our existing legislation. The fact that we have not narrowed that down and that we are still talking about giving Ministers quite sweeping and general powers is quite alarming, and I only hope that, as we go to the next stage of this process, we will get more clarity. Ministers’ defence is basically to say, “Trust us to rectify these anomalies and to get things right,” but Opposition Members are saying, “Well, we would be better able to trust you if we were able to get a reassurance that you are not going to use these powers in certain areas.” Yet, Ministers are resisting every attempt to qualify and limit the exercise of these powers.

[Tom Brake]

I would like the hon. Gentleman to cast his mind back to before 23 June last year. Can he recall prominent leave campaigners suggesting at any stage during that campaign that there would, in fact, be this very large power grab and that taking back control meant the Executive taking power away from Members of Parliament?

[Tommy Sheppard]

No, the implication was clearly given that control would be taken back by the people. In fact, it seems that control is being taken back by the Executive. In as much as power is going anywhere, it is not coming into this Chamber, certainly at the moment.

[Joanna Cherry (Edinburgh South West) (SNP)]

I was struck by the rather sweeping statement by the right hon. Member for West Dorset (Sir Oliver Letwin), in reference to clause 7, that we apparently all know what “appropriate” means and that the courts will know what “appropriate” means. Does my hon. Friend, like me, look forward to hearing from the Minister what “appropriate” means, and does he, like me, agree with such distinguished lawyers as those at the Law Society of Scotland and JUSTICE that “appropriate” gives far too wide a discretion to the Government?

[Tommy Sheppard]

I do indeed, and I will come on to that in just one moment.

[Helen Goodman]

I just want to back up the hon. Gentleman’s request for more information from the Government. In our report, the Procedure Committee called on the Government to publish

“as soon as possible…an outline schedule for the laying of instruments before the House.”

The hon. Gentleman is absolutely right: we still do not know what the Government have in mind.

[Tommy Sheppard]

If we had some more of that detail, we would be a little more reassured, and we would not be able to attribute anything other than good intentions to the Government in this process. However, that is not the situation we are in at the moment.

Words are extremely important in this process, because words and meaning have to be shared for us to move forward. If we look at what happened last Friday, we can see a clear example of how one set of words can mean two entirely different things to two different people. It looked as if the Prime Minister—I am sure she genuinely believed this—was signing an agreement on behalf of this country with the 27 other member states of the European Union. She described it as a series of commitments that were being made by this country at this interim stage in the process. Within 24 hours, however, we had the spectacle of one of her closest advisers turning round and taking to the public airwaves to say that these were not commitments at all, but merely a statement of intent. He was sternly reprimanded and corrected the following day, but that does show that, unless we are very careful and precise about the words we use, there is scope for ambiguity and, therefore, misunderstanding.

The first word we should be very careful about is “deficiency”, which appears throughout the Bill, and which is the subject of several of the amendments I am talking to. The word “deficiency”, as it appears in the Bill, need not necessarily mean the absence of something; the EU retained law being brought over could also be deficient if it contains something that prevents the Government of the day from doing what they want to do. I do not want to engage in hyperbole or to give dramatic, unreasonable examples, and I am sure that, for the vast bulk of things, we would all expect to have primary legislation to make policy change, but this issue does open up the scope for making significant policy changes without reference to this Parliament or to primary legislation.

We have already had mention of the working time directive—the 48-hour limit on weekly work. I am not suggesting that the Government would necessarily want to use these powers to overturn completely that and to substitute 48 with 72. However, a Minister in the future—in the period of transition—might well find that the 48 hours is overly prescriptive in a mandatory sense, and might choose to make it more of an advisory notion, rather than something that is absolute and that can be challenged. With the stroke of a pen—overnight—the rights at work of millions of people in this country could simply be eroded. If the Minister is saying that that is not the intention and that it will never happen, he should support amendment 75 in the Lobby tonight, which will make sure that will not happen, because it will exempt workers’ rights from the scope of the legislation.

[Tim Farron (Waterford and Lonsdale) (LD)]

The hon. Gentleman is making some excellent points, and I would like to back him up on them. Would it be worth reflecting on the fact that, rightly or wrongly, being in the European Union means that we make some colossal policy assumptions? On environmental matters, one of those assumptions is that it is right that we invest public money in farming to make sure that we protect our countryside. However, we also, without ever having a debate in the House about it, assume that it is right to, effectively, subsidise food in this country. We may now be in a position where we are about to accept that assumption or to move away from it, with colossal consequences for the whole of our society.

[Tommy Sheppard]

The hon. Gentleman makes a very good point that is a further illustration of the dilemma that is now facing us.

--- Later in debate ---

[Mr Baker]

rose—

[Tommy Sheppard]

I will give way in a moment, but I want to give a third example, which the Minister may also wish to talk about, regarding the common agricultural policy. At the moment, Scottish farmers are waiting on £160 million of refund payments under the CAP because of the way that it was changed in recent years. The way in which those payments are to be distributed is currently the subject of EU regulations, but what if the Government felt that that was somehow unfair and they wanted to change it? Then, without reference to primary legislation and or to Parliament, they could do so, and the material amount of money that farmers would get would be different from what they expect now. That is just a simple illustration of how these policies could change. I now happily give way to the Minister if he still wants to intervene.

[Mr Baker]

Could the hon. Gentleman revisit each of the examples he has given and explain why he thinks that they would be deficiencies arising from our withdrawal from the EU, because having listened carefully to him, I do not think that, as my hon. and learned Friend the Solicitor General is saying, any of them could be classed as deficiencies arising from our withdrawal?

[Tommy Sheppard]

I do not think that they are deficiencies—that is not my point. My point is that a Minister or a future Minister might regard them as deficiencies, and therefore might change the law in this way.

[Dan Carden (Liverpool, Walton) (Lab)]

The hon. Gentleman has talked about the importance of language in this debate. Should we not all be worried by the actions of this Government over the latest rise in tuition fees, where they refused a vote in this House and ignored an Opposition day debate? The actions of this Government should worry us all when we look ahead to these future arrangements.

[Tommy Sheppard]

Indeed so. There is always the danger that some of the policies that Government may wish to get through, and would run aground were they to try to introduce them through primary legislation, may be sneaked through the back door in a salami-style way. We do not know. The point is that we are being invited to give Ministers the power whereby these things could happen.

[Mary Creagh]

I understand and sympathise with the hon. Gentleman’s point on deficiencies. Does he agree that over the weekend we have seen varying interpretations of the meaning of full regulatory alignment, which seems to mean all sorts of different things to different people as the Cabinet tries to have its fudge and eat it?

[Tommy Sheppard]

Indeed. While I am tempted to digress into a debate on what happened with the phase 1 agreement and regulatory alignment, I think I had better stick to the subject in hand.

With regard to defining “deficiencies” properly, amendment 264 calls on the Government to provide reassurance by bringing forward clear definitions of what they might mean by “deficiencies”. If we had that, we might be better able to consider whether to give them these powers.

[Sir Oliver Letwin]

I do not know whether it would be possible to find definitions that would help. However, the hon. Gentleman seems unwilling to accept, or certainly has not alluded to, the fact that secondary instruments, as opposed to primary legislation, are justiciable. Our courts are quite used to concepts like deficiency and appropriateness. Is that not what we are relying on—the action of the courts?

[Tommy Sheppard]

I accept that these things may be challenged, but I am trying to argue for a democratic process whereby it is the elected representatives of the people who debate and choose the policy direction in various areas.

[Joanna Cherry]

Is the point not really that, as has been pointed out by JUSTICE and the Law Society of Scotland, the term “appropriate” is so wide that it gives the courts a breadth of discretion that they themselves have told us that they do not want?

[Tommy Sheppard]

Indeed. That takes me nicely to my next point, which concerns the word “appropriate”.

[Sir Oliver Letwin]

rose—

[Tommy Sheppard]

Can I make a little progress? I do not usually say that, but I am barely halfway through at the moment.

The word “appropriate” is one of those words that is so open-ended and ambiguous that it could literally mean all things to all people. That is why I am a big fan of amendment 2, in the name of the right hon. and learned Member for Beaconsfield (Mr Grieve), which attempts to give some definition to what we mean by “appropriate”. I was not quite sure what he was implying about pressing it to a vote, but I hope that he is going to—I would be very happy to support it.

Amendments 205, 206, 216, 17 and 265 also attempt to define the word “appropriate”, with the effect of substituting the word “necessary”. That is a much more agreeable term, because “appropriate” is subjective: what is appropriate for one person may not be appropriate for the other, but what is necessary has to be evidenced by reasons. If something were to be appealed and come to court, it would be much easier to question necessity than appropriateness. These amendments would also be useful.

Let me now talk about the aspects relating to devolution—again, without getting into the phase 1 agreement. Clearly, the whole matter of how powers are exercised by Ministers, whether those powers are residual or broad-brush, has a critical impact on the devolved Administrations. I hope that the Committee will support amendment 161, which requires Ministers to get the consent of devolved Administrations when they are making secondary legislation on matters that affect them. I hope that that sort of qualification will be uncontroversial, but I dare say that it will not be.

Perhaps the most important amendment is 158 in the name of the hon. Member for Cardiff South and Penarth. It simply says that the Scotland Act 1998 and the Government of Wales Act 2006 should be exempt from the set of powers that we are giving to UK Ministers to bring forward secondary legislation. The Government already accept that the Northern Ireland Act 1998 has been exempted, so Ministers need to explain why they would exempt one devolved legislature and not the others. How can it be justified in one place and not in the others? Surely it is a simple matter of common sense to say that this provision should confer on UK Ministers an exercise of power in relation to the matters that this Parliament is responsible for, not in relation to those that other Parliaments are responsible for.

I want briefly to mention human rights. I appreciate that the Secretary of State has tabled an amendment, now to be part of what we are discussing, in which he refers to examining the equalities implications for any particular piece of legislation. However, we can do more than that. I want to know why the amendment says that we should exempt the Equality Act 2010 and the Equality Act 2006 from the powers being given to Ministers. If the Government do not accept that, there is always the danger of people implying from their actions that they may wish to do something that would constrain or overturn some of the safeties and securities in those Acts.

Let me talk about the experience that this place has in making secondary legislation. This will not be so important, I suppose, if we end up with a tiny number of residual matters that need to be considered in this way, but if that is not the case—if, because of a lack of legislative time, the Government try to put an awful lot of matters through secondary legislation—then we will be very ill-equipped to deal with that.

Like many Members, I have sat on Delegated Legislation Committees. They are effectively a rubber stamp; we hope that the officials and civil servants who draw up the regulations have worked them out, double-checked them and made sure of them, because we rarely get the opportunity to get into a debate. I well remember a recent Delegated Legislation Committee to which I turned up determined to get involved in a discussion of what the regulations were about, to the dismay of other Members. They were dismayed not by the content of what I said, but by the fact that I said it and made the meeting last 30 mins rather than three, so they missed their subsequent appointments.

That is how Delegated Legislation Committees work at the minute. People regard them as a rubber stamp and something of a joke. If we did not have faith in our civil service and those who prepare the regulations, we would be in a bad way indeed, and that cannot continue. I accept that the amendments tabled by the Procedure Committee are an attempt to overcome many of those deficiencies, but I think that they are baby steps. Of course they are worth taking, but they are minor changes to our procedures. If we try to load on to the existing procedures a vast array of secondary legislation, those procedures will not be fit for purpose and we will end up making bad and ridiculous legislation.

The debate has been about Henry VIII powers. I hope that those who argue for such powers do not go the way of the architect of the previous Henry VIII powers, Thomas Cromwell, and end up in the Tower or dead. I am sure that they will not, but I caution them, when they are considering how much power to give to Ministers—how much power to transfer from the legislature to the Executive—to take a minimalist rather than a maximalist perspective. If they do not, those of us who argue that this is a major power grab by the Executive from the legislature will be entirely justified in doing so.

I urge Ministers to tell us this in their summing up: if they reject every single amendment that is designed to constrain their area of operation—to define the manner in which they might exercise judgment on such matters—what on earth are they going to do instead to reassure this House? We need to know that we are not giving them carte blanche to go forward and do what they want without reference to the democratically elected representatives of the people in this country, for whom control was meant to have been taken back.

[Tim Loughton (East Worthing and Shoreham) (Con)]

I am grateful for the opportunity to speak. I will do so perhaps rather more briefly and concisely than many others have done, because I know that lots of people want to contribute to this debate.

Up to now, I have sought not to encumber the House and the Government with lots of amendments to an already extensive and comprehensive Bill. I have certainly sought not to bind the Government’s hands in the very difficult process of exiting the EU in the months and years to come—particularly in the complex and important negotiations, which received a substantial boost last Friday. No hon. Member should be in any doubt that there is a serious and growing prospect of our agreeing to a mutually beneficial conclusion to the Brexit negotiations. Why would anybody in this House not want that to happen?

There is, however, an aspect of the Bill that merits a new clause. I am speaking primarily to new clause 53, which is in my name and that of other right hon. and hon. Members from all parts of the House. The new clause is designed simply to perpetuate an existing arrangement in family reunion rules. We should take great pride in our involvement in that arrangement. Many of us are concerned that if it does not continue, vulnerable children who are fleeing conflict in the middle east, in particular—this House has heard much about them in the last few years, and is familiar with the situation—could be detained in places of danger. We are doing much to help such children, and we need to do more.

I have seen at first hand the benefits of the Dublin arrangements. My right hon. Friend the Member for Loughborough (Nicky Morgan) and I went to Athens as the guests of UNICEF earlier in the year to visit the refugee projects. I am aware that many other hon. Members have been to Greece, Italy and Calais to see the results of getting it wrong further up the line. The situation in Italy, in particular, is rather more extreme than that in Greece. In Greece, we saw UNICEF and other aid agencies working with a Government under great pressure, and doing a pretty impressive job. Some 30,000 refugees arrived in Greece in 2016, but the number of arrivals has since fallen to a more manageable level. That—not least the almost 3,000 unaccompanied children among those 30,000 refugees—still represents a serious challenge, however.

European Union (Withdrawal) Bill

Tommy Sheppard Excerpts

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

[Geraint Davies]

I am. I urge people to support new clause 14.

[Tommy Sheppard (Edinburgh East) (SNP)]

Given the shortage of time, I will confine my remarks to amendment 59.

I find it almost unbelievable that, 18 months after the referendum and six months after the Government introduced this Bill, they still have not provided or commissioned any proper economic analysis of what Brexit will mean and of the various options we have. In that information vacuum, it has fallen to others to try to fill the gap. A recent report from the Mayor of London concluded that 500,000 jobs are at risk as £50 billion will be taken out of the economy.

The Fraser of Allander Institute in Scotland, which is no friend of my party or of the Scottish Government, has concluded that Brexit puts 80,000 jobs in Scotland under threat. Just this week, a new analysis from the Scottish Government concluded that each person in Scotland could lose £2,600 if we leave the single market.

If the Government disagree with those analyses, I have to wonder why they do not publish their own. I understand that the Government are, of course, divided at the highest level—God knows they need to find agreement among themselves before they can get agreement with other countries—but that cannot be the whole explanation.

I believe the reason we have not had this analysis from the Government is that they know anything they publish will not support and provide evidence for the path they have chosen. Given that degree of denial and political myopia, it falls to this Parliament to try to save this Government from themselves. We can do that by supporting amendment 59, because the truth is that there are no good options here, only less bad ones. Clearly, the least bad option we can do is remain in the customs union and single market to protect our economy. The time has come to call a halt on what is happening and say, “This is the direction we must go in.”

As the right hon. Member for Carshalton and Wallington (Tom Brake) mentioned, this amendment has the backing of four parties. It is almost a united Opposition amendment, but there is an absentee friend—the Labour party. I say to Labour colleagues, even at this eleventh hour, not to chastise them but to welcome them in this campaign, “Don’t just participate. Come and lead the campaign against this Government. If you do not, you compromise the future.” In a few years’ time, when the consequences are clear, prices are going up and jobs are disappearing, the Leader of the Opposition will try to accuse the Government and they will look back and say, “You didn’t stop it at the time.” So I ask Labour colleagues to come with us and back amendment 59, and let us try to save this Government from themselves.

[Several hon. Members rose—]